Bartlett and Anor and Farley and Anor

[2009] FMCAfam 1237

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARTLETT & ANOR & FARLEY & ANOR [2009] FMCAfam 1237

FAMILY LAW – Children – residence – Aboriginal child – application by maternal grandmother that child should live with her – child’s mother deceased – whereabouts of child’s father not known – best interests of the child – child’s right to enjoy his Aboriginal culture under Family Law Act 1975 (Cth) s.60B(3) and s.60CC(3)(h) – psychological harm – no family violence.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61F, 64C, 65AA, 65C, 65DAA

Thomas v Farley & Anor (1980) FLC 90-840
In the Marriage of B & R (1995) 19 Fam LR 594
Davis & Davis & Spring [2007] FamCA 1149; (2008) 38 Fam LR 671
R & R (1985) FLC 91-615
Mr B & Ms F & Mrs F & Mr B Snr [1998] FamCA 239
Tuite & Wall [2003] FMCAfam 262
Ms P & Mr B [1998] FamCA 765
In re: CP [1997] FamCA 10
Mazorski v Albright [2007] FamCA 520; (2008) 37 Fam LR 518
Goode v Goode [2006] FamCA 1346; (2007) 36 Fam LR 422

First Applicant: MS BARTLETT

Second Applicant: MR THOMAS

First Respondent: MRS D FARLEY

Second Respondent: MS J FARLEY

File Number: LEC 11 of 2008

Judgment of: Scarlett FM

Hearing dates: 24,25 & 26 September, 15 & 16 December 2008

Date of Last Submission: 1 April 2009

Delivered at: Sydney

Delivered on: 9 December 2009

REPRESENTATION

Counsel for the First Applicant: Mr Duane

Solicitors for the First Applicant: Jane Adams Lawyer

Solicitor for the Second Applicant: Mr Hammond

Solicitors for the Second Applicant: Legal Aid NSW

Counsel for the First Respondent: Ms Gillies

Solicitors for the First Respondent: G.A. Guthrie Solicitors

Counsel for the Second Respondent: Mr Blond

Solicitors for the Second Respondent: MacDonald & MacDonald Solicitors

Counsel for Independent Children’s Lawyer: Mr Theobold

Solicitors for Independent Children’s Lawyer: Burridge Harris & Flynn Solicitors

ORDERS

1. The child [A] born [in] 2004 is to live with the maternal grandmother MS BARTLETT and the maternal uncle MR THOMAS.

2. MS BARTLETT and MR THOMAS are to have shared parental responsibility for the said child.

3. The child [A] is to spend time with MRS D FARLEY and MS J FARLEY as follows:

   (a)each alternate weekend during the school term time from after school or pre-school each Friday until before school or pre –school the following Monday morning provided that where the Monday is a public holiday the child is to remain with MRS D FARLEY and MS J FARLEY until 4:00pm on the Monday;

   (b)for the first half of all school holidays with the exception of the Christmas/January school holidays;

   (c)for two weeks during the Christmas/January school holidays in each year commencing on the day after New Year’s Day;

   (d)from 9:00 am until 1:00 pm each alternate Christmas Day commencing on Christmas Day 2010;

   (e)from 9:00 am to 1:00 pm each alternate Boxing Day commencing on Boxing Day 2009;

   (f)from 4:00 pm to 6:00 pm on the child’s birthday in each year; and

   (g)at such other times as the parties shall agree.

4. The parties are restrained from denigrating or making critical comments about each other in the presence or hearing of the child.

5. The parties are restrained from changing the child’s surname from THOMAS-FARLEY to any other surname.

6. The parties are to ensure that the child is not left unsupervised in the care of MR P at any time.

7. MS BARTLETT and MR THOMAS are to do all such things and sign all necessary documents to allow MRS D FARLEY and MS J FARLEY to obtain at their own expense copies of all school reports, newsletters and other documents normally provided to parents of children attending the child’s school.

8. MS BARTLETT and MR THOMAS are to advise MRS D FARLEY and MS J FARLEY of any illness or injury sustained by the child requiring treatment at a hospital or by a specialist medical practitioner.

9. The said MS BARTLETT, MR THOMAS, MRS D FARLEY and MS J FARLEY are to attend mediation or counselling about issues relating to the child with a child and family counsellor through Interrelate or an Aboriginal community based organisation in the Coffs harbour for such time as the child and family counsellor shall deem necessary. 

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

LEC 11 of 2008

MS BARTLETT

First Applicant

MR THOMAS

Second Applicant

And

MRS D FARLEY

First Respondent

MS J FARLEY

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by the grandmother of a little boy, who will be referred to as A that he should live with her. A is just about to turn five years old, having been born [in]. He is Aboriginal. His mother is deceased and the whereabouts of his father are not known.

2. A lived with his mother until her death, but since then he has lived with the first respondent, Mrs D Farley. The second respondent, Ms J Farley, is the daughter of the first respondent and has assisted in the care of A since his mother died. They are not related to A by blood, nor are they Aboriginal. The first respondent was the foster mother of A’s mother.

3. The respondents oppose the orders sought by the grandmother, and seek orders that A should live with Ms J Farley.

4. The second applicant is the child’s uncle. He supports the grandmother’s application.

Background

1. This matter has a lengthy history.

2. The applicant grandmother was born [in] 1939. She is now 70 years of age. She is an Elder of the Gumbayngirr community in Coffs Harbour. She had seven children, one of whom, L, was the mother of A.

3. It is conceded by her counsel that Ms Bartlett had “a difficult childhood” and had “serious difficulties with alcohol, relationships and housing when she was younger”.[1] 

   [1] Submissions of Applicant Maternal Grandmother, pages 5 and 6, at paragraphs [39] and [40]

4. Ms Bartlett’s daughter went into the care of Mrs D Farley in about 1970, whilst she was still a baby. The circumstances are set out in the judgment of Kearney J in the Supreme Court of New South Wales in Thomas v Farley[2] & Anor[3], which concerned Ms Bartlett’s application for custody of her daughter. His Honour set out at 75,306-7:

   The child came into the hands of the defendants by reason of the fact that the plaintiff was ill at the time of the child’s birth and was unemployed. She was endeavouring to support her family and was in a position where she considered, for reasons that are obvious, that she could not adequately attend to the needs of the new baby. Accordingly, arrangements were made through the Department of Youth and Community Services for the child to be placed with the defendants, principally the first defendant who has been for some 14 years prepared to act as a temporary foster mother to provide accommodation for babies and children, particularly Aboriginals. The plaintiff then expected that she would be able to manage with the baby after a short space of time, but these expectations did not come to fruition. The plaintiff, in fact, worked around the Coffs Harbour area for approximately two years, during which time she was also engaged in managing her family.[4]

   [2] sic

   [3] (1980) FLC 90-840

   [4] (198) FLC 90-840 at 75, 306-7

5. Ms Bartlett’s daughter remained living with Mrs D Farley. In September 1979 Ms Bartlett commenced proceedings in the Supreme Court of New South Wales against Mrs D Farley and her then husband, seeking custody of the child L. That application was unsuccessful. Kearney J made orders that:

   a)

   The custody of the child L was granted to the first defendant

   
   

   Mrs D Farley (Farley); and

   b)Reasonable access was granted to the plaintiff (Ms Bartlett).

6. His Honour described the proposed access in this way:

   I order that reasonable access be granted to the plaintiff on the footing that such access should be ample. What I have in mind in this regard is that, subject to circumstances, the plaintiff may well share school holiday periods as well as other occasions of access.[5]

   [5] (1989 FLC 90-840 at 75,312

7. The child L, who was then about 10 years old, continued to live with Mrs D Farley until shortly before she turned 17, when she went to live with a man significantly older than herself. The relationship with the Farleys was distant for a number of years.

8. The relationship between L and Ms Bartlett was not close for many years and was marked by hostility on the part of L towards Ms Bartlett.

9. L spent some time living with her sister, Ms D.

10. After L became pregnant, there was a reconciliation between her and Mrs D Farley.

11. The child A was born [in] 2004. Ms Bartlett attended, as did her two daughters and her friend, Mr P. The relationship between L and

    
    

    Ms Bartlett remained problematic.

12. L died [in] 2006 at the age of 36, having suffered a cerebral haemorrhage. The child A, who was then 15 months old, went to live with Mrs D Farley.

13. By about April 2006 Ms Bartlett was making it known that she wanted her family to care for the child.

14. On 7^th August 2006 Mrs D Farley obtained an ex parte order in this Court, providing as follows:

    (1)     The child (A) born [in] 2004 live with Mrs D Farley.

    (2)     Mrs D Farley has sole responsibility for decisions concerning the day to day and long term care, welfare and development of the child.   

15. There was no respondent to the application.

16. On 10^th December 2007, Ms Bartlett and the second applicant,

    
    

    Mr Thomas, made application in the Local Court of New South Wales at Coffs Harbour for an order that the child A should live with

    
    

    Ms Bartlett or, in the alternative, that he should live on a week about basis with Ms Bartlett and Mrs D Farley.

17. The proceedings were transferred to this Court.

Proceedings in the Federal Magistrates Court

1. An Independent Children’s Lawyer was appointed.

2. As the child is Aboriginal, the Court obtained an Expert Report on Cultural Issues from Stephen Ralph, an Independent Cultural Consultant who is a registered psychologist.

3. The Court also obtained a Family Report prepared by Nick Paris, a Regulation 7 Family Consultant.

4. The hearing took place over five days – 24^th to 26^th September and 15^th and 16^th December 2008. The parties provided written submissions. The matter was originally listed for three days, but two additional days had to be allocated as the evidence took considerably longer than was expected. In retrospect, it is clear that this is a matter that was not really suitable to be heard on circuit, except as a special fixture. Due to its length, it is a matter that, in hindsight, should better have been transferred to the Family Court.

Evidence

1. The Court heard evidence from:

   a)The first applicant, Ms Bartlett;

   b)The first applicant’s friend, Mr P;

   c)The first applicant’s daughter, daughter, Ms D;

   d)The second applicant, also described, confusingly, as the third respondent, Mr Thomas;

   e)The first respondent, Mrs D Farley; and

   f)The second respondent, Ms J Farley.   

2. The parties considered it necessary to recall Ms Bartlett, Mrs D Farley and Ms J Farley to give further evidence after the hearing resumed on 15^th December 2008.

3. The Court also heard evidence from Stephen Ralph, the independent cultural consultant, and Nick Paris, the author of the Family Report.

4. Ms Bartlett is 70 years of age and appears to be in good health. Earlier in her life she had a problem with alcohol but has been a member of Alcoholics Anonymous for 25 years.

5. Ms Bartlett lives in Coffs Harbour. She shares that accommodation with Mr P, and has done so for about 23 years. Whilst she owns a car and has a licence to drive, she prefers that Mr P drives them.

6. Ms Bartlett had seven children, of whom her daughter L was the youngest. She was born [in] 1969. As a result of her problems with alcohol and housing, Ms Bartlett had difficulties as a single mother and the child L went into the care of Mr and Mrs D Farley. Her other six children were made wards of the State in about 1972 because of her lack of accommodation for them. She obtained proper housing in 1977 and five of her children were returned to her care. She was unable to locate her youngest son until 2005.

7. Ms Bartlett applied to the Supreme Court for an order for the custody of L, but this was unsuccessful. She deposed that she tried to see her daughter as often as possible but that Mrs D Farley did not allow her to see L often. She stated that she continued to see L and tried to assist her after she had left the Farleys’ household and was drinking heavily.

8. When the child A was born Ms Bartlett attended at the hospital, along with Mr P and her daughters Ms D and Ms R.

9. L and the child lived in their own home until L’s sudden death. Their relationship had its “ups and downs”[6] but it improved.

   [6] Affidavit of Ms Bartlett 18.8.2008 paragraph [22]

10. Ms Bartlett deposed that she saw and spoke to the child A at his mother’s funeral but the Farley family mainly kept him with them. They took him to live with them after L’s death. Since then, Ms Bartlett had an operation on her arm which meant that she was unable to care properly for a toddler.

11. Ms Bartlett set out in her affidavit about the way she felt that she had not been allowed to take on the care of the child after his mother’s death:

    I saw him once after (L) passed away but became quite upset because of the way that Mrs D Farley spoke to me. The Farleys assumed that A would remain with them. I felt at a loss and did not know then that I could have made an Application for A to live with me. I assumed as A was our ‘blood’ that he would live with me, but the Farleys did not allow this to happen.[7]

    [7] Affidavit of Ms Bartlett 18.8.2008 paragraph [24]

12. Ms Bartlett deposed that she contacted Mrs D Farley in August 2007 to make arrangements to see her grandson. Arrangements were duly made for the following Sunday, which Ms Bartlett said went well. A further arrangement was made for the next Sunday, but after a couple of days, Mrs D Farley rang and said:

    Don’t come to my house anymore if you want to see A. Go to Ms J Farley’s place in [address omitted].[8]

    [8] Affidavit of Ms Bartlett 18.8.2008 at [27]

13. Ms Bartlett continued seeing A on a regular basis, first at the home of Ms J Farley but then, at Ms J Farley’s request, at a park.

14. A Legal Aid conference was held on 29^th November 2007, at which the parties made an interim agreement about Ms Bartlett spending time with her grandson on an unsupervised basis. This agreement became the basis for consent orders made at the Local Court of New South Wales at Coffs Harbour on 14^th December 2007, at which time the proceedings were transferred to this Court.

15. Throughout the year 2008, Ms Bartlett continued to spend time with the child, although there were numerous disagreements between her on the one hand and Mrs D Farley and Ms J Farley on the other. At times, Ms Bartlett would be accompanied by her son Mr Thomas, the second applicant.

16. Ms Bartlett gave evidence about her desire for A to learn about his Aboriginal heritage and culture and is concerned that Mrs D Farley and Ms J Farley do not have a commitment towards this. She would like him to be enrolled at the Aboriginal pre-school in Coffs Harbour for two days a week, whilst remaining at his existing pre-school, [name omitted], for the rest of the week.

17. Ms Bartlett acknowledges her difficulty in dealing with the Farleys and the fact that A has a close bond with them:

    I understand that A has a close bond with both Mrs D Farley and Ms J Farley. I am willing to assist A maintain this bond. I do have difficulty communicating with the Farleys and would be willing to participate in counselling to improve our relationships with one another.[9]

    [9] Affidavit of Ms Bartlett 18,8.2008 at [150]

18. In cross-examination by Ms Gillies for Mrs D Farley, Ms Bartlett agreed that the child loved both Mrs D Farley and Ms J Farley and that they should still play a significant role in his life, even if the Court were to order that he should live with her.

19. Mr P gave evidence that he has known Ms Bartlett for over 28 years and they had lived together for about 23 years. He was born [in] 1950 and is now 59 years old. He confirmed that he usually drives

    
    

    Ms Bartlett’s car for her.

20. Mr P confirmed Ms Bartlett’s evidence that Ms J Farley had said that Ms Bartlett should not see the child at her house any more but that arrangements would be made for her to see him at a park.

21. Mr P confirmed a number of traffic offences, including one for drink driving, and a conviction for assault. Of greater concern was a sexual offence, which he described in this way:

    I admit that I had a sexual relationship with a 15 year old girl when I was about 32. At the beginning of our relationship she told me that she was older. She was going out with other men as well at this time. The girl’s mother was aware of our relationship. I was convicted of carnal knowledge and placed on a bond.[10]

    [10] Affidavit of Mr P 18 August 2008 at paragraph [18]

22. In cross-examination, he admitted that he had had a severe alcohol problem in the past, he was a “full on alcoholic” before he lived in a house with Ms Bartlett.[11] He conceded that he had been convicted of wilfully exposing himself in a public place in 1986, as well as trespassing. There were other offences, which he said took place whilst he was drinking. He no longer drinks.

    [11] Transcript 25.9.2008 at page 96

23. Mr P said that if his presence in Ms Bartlett’s home was going to have an adverse effect on her chances of having the child A live with her he would move out. He said he could stay with his sister.

24. Mr P conceded that he had a conviction for common assault in 1998 as a result of his having hit a man who had threatened to do some damage to Ms Bartlett’s home.

25. Ms D gave evidence. She is Ms Bartlett’s eldest child.

26. Ms D’s evidence was that she had lived with her sister L on two occasions for about two years each time and had a close relationship with her. She deposed in her affidavit that L had said to her about A:

    “[Ms D] I want my son to grow up knowing he is a strong koori man and not to grow up like me not knowing his true family was”.[12]

    [12] Affidavit of Ms D 18.8.2008 at paragraph [14]

27. In cross examination, Ms D admitted that she had spent a period of time in rehabilitation in 1989 as a result of a problem with alcohol. She said she had “been for eight years off alcohol and seven years off drugs”.[13]

    [13] Transcript 25.9.2008 at page 122

28. She said that she was keen for the child to know about his Aboriginal culture and described various activities in which he could participate.

29. As to her relations with the Farleys, Ms D said that she had no problems speaking to either Mrs D Farley or to Ms J Farley. She said that to spend time with his indigenous relatives in order to keep his connection with his culture, ideally the child should be with them at all times but could spend time with the Farleys on weekends. She volunteered that he loved Mrs D Farley.

30. Mr Thomas gave evidence. He is a son of Ms Bartlett and, therefore, the child’s uncle. He was born [in] 1962. He deposed that he was seeking an order that the child A should spend one day a fortnight with his family, so that he could build and maintain relationships with members of his extended family. He expressed a belief that it was important that the child should know the Aboriginal side of his culture and learn the stories and men’s Aboriginal ways. He deposed in his affidavit:

    As his Uncle, I know what type of aboriginal culture and knowledge is best for (A). It could be harmful for him to know something that does not fit in with his dreamtime. Being his only Uncle gives me the Aboriginal right to show him and guide him to Aboriginal knowledge. My past elders would expect this.[14]

    [14] Affidavit of Mr Thomas 3.9.2008 at paragraph [23]

31. Mr Thomas stated that he did not drink or take drugs.

1. In cross-examination, Mr Thomas agreed that he had drug and alcohol issues in the past. He had convictions for drink driving and refusing to leave premises. He gave up alcohol and drugs and has more recently given up smoking cigarettes.

2. Mrs D Farley is the first respondent. She deposed in her affidavit of

   
   

   7^th February 2008 that she was 72 years of age and a widow. L, the mother of the child A, lived with Mrs D Farley from when she was 8 days old until she was 17. It is her evidence that L “always made it clear to me that she did not want to see her mother. Prior to her death (L) was not having any contact with her mother”.[15]

   [15] Affidavit of Mrs D Farley 7.2.2008 at paragraph [4]

3. Mrs D Farley referred to a note sent by Ms Bartlett to L around 9^th December 2005, just after the child’s first birthday which caused L distress. A copy of the note is annexed to Mrs D Farley’s affidavit and says:

   Rember (sic) this old Mrs D Farley never layed on her back for you and she never had the pains that I had when I gave berth to you and don’t wory (sic) you are not my daughter aymore[16]

   [16] Affidavit of Mrs D Farley 7.2.2008 annexure C

4. In her affidavit she referred to the sudden death of L on 10^th February 2006. She deposed that in April 2006 Ms Bartlett came to her home to say that she wanted her daughter Ms R to raise the child A but Mrs D Farley refused, saying:

   I replied “(L) made it very clear that she wanted me and Ms J Farley to raise A. She didn’t want him raised by anyone in the Thomas family”.[17]

   [17] Ibid at paragraph [23]

5. Mrs D Farley later deposed that Ms Bartlett had said to her:

   You took my daughter and you’re not getting my grandson.[18]

   [18] Ibid at paragraph [24]

6. Mrs D Farley reported that the child A had been aggressive and disruptive at pre-school and claimed that:

   His behaviour has deteriorated since he has been seeing [Ms Bartlett].[19]

   [19] Ibid at [33]

7. In cross examination by Mr Duane of counsel, who appeared for

   
   

   Ms Bartlett, Mrs D Farley described how she assumed the care of the child A after his mother’s untimely death:

   Well when you bring up a girl until she’s 36 years and she has a son, you just continue on.[20]

   [20] Transcript 25.9.2008 at page 174

8. Asked about what steps she had taken to promote the child’s Aboriginal heritage and culture, Mrs D Farley said that she left it to his extended family to deal with those things. She said that she did not know very much about the subject but her daughter had a lot of information that she shared with the child.

9. Mrs D Farley’s cross-examination continued on the third day of the hearing. She told Mr Hammond, who appeared for Mr Thomas, that the child did receive education about his Aboriginal culture when he was with her, by being shown books and television programs. She conceded that she did not know anything specifically about the child’s Aboriginal heritage from the Coffs Harbour area. She went to say that she had told Mr Ralph, the independent cultural consultant, that the child “had the right to know about his European culture, the same as he does with his Aboriginal culture…

   …He’s entitled to both cultures because he’s both cultures.[21]

   [21] Transcript 26.9.2008 at pages 193-194

10. Mr Theobald of counsel, the Independent Children’s Lawyer, asked Mrs D Farley about the Supreme Court decision in 1980 and read to her the passage from the judgment of Kearney J:

    I order that reasonable access be granted to the plaintiff on the footing that such access should be ample. What I have in mind in this regard is that, subject to circumstances, the plaintiff share school holiday periods as well as other occasions of access. I trust that the parties will be able to work out from time to time suitable arrangements for such access without the necessity for the Court to prescribe detailed provisions.[22]

    [22] (1980) FLC 90-840 at 75312

11. Mrs D Farley conceded that she had read the decision. She said that the child L did not ever spend any school holiday time with Ms Bartlett, saying “She didn’t want to”.[23] She said that never contacted

    
    

    Ms Bartlett about holiday contact with L and that she would take her away with her during school holidays. When asked if she ever thought it would be good for her to spend some time with her mother in school holidays, Mrs D Farley said:

    [23] Transcript 26.9.2008 at 198

    If she wanted to…

    I didn’t think about it. If she wanted to, I would have let her.[24]

    [24] Ibid

12. Mrs D Farley’s view was that, when the time comes for A to start school, he should attend the [C] School in Coffs Harbour, because it is a smaller school and he would get a Christian education there. She did not believe that Ms Bartlett would be likely to compromise on that point and, when asked if she would compromise, said:

    I don’t know. I really don’t know.[25]

    [25] Transcript 26.8.2008 at 202

13. The second respondent, Ms J Farley, is the daughter of Mrs D Farley. She deposed in her affidavit that she was 12 years old when L, the natural mother of A, came into the care of her mother as an 8 day old baby. She described how L had a difficult relationship with Ms Bartlett, although she tried to improve that relationship after the child A was born. Her evidence was that her attempts were rebuffed by Ms Bartlett.

14. After L died, Ms J Farley discussed the situation of the child A with her sisters, and they decided that the child should live with Mrs D Farley and Ms J Farley would assist her. She described how, later, Ms Bartlett and Mr Thomas raised the subject of A being cared for by Ms Bartlett. Her reply was:

    “No, I’m sorry but (L) asked us to raise him, if she said to us for you to raise him, we would have made sure that happened.”[26]

    [26] Affidavit of Ms J Farley 14.2.2008 at [42]

15. In her affidavit, Ms J Farley raised concerns about the environment at Ms Bartlett’s household. She referred to Ms Bartlett being an alcoholic who had stopped drinking, and said:

    I have not observed a genuine maternal affection develop in the grandmother over the time she has started having contact with (A).

    She does not respond to (A) or show insight into his needs. I don’t feel she wants (A) out of natural affection. It is my view that she doesn’t care who has (A) as long as it is not us.

    She has made accusations from time to time which are simply not true and this concerns me as she seems more focused on getting back at my mother for having (L) than she is about (A)’s best interests.[27]

    [27] Affidavit of Ms J Farley 14.2.2008 at [57]-[59]

16. Ms J Farley expressed the view that, whilst she did not oppose the child spending time with his Aboriginal family and getting to know his maternal grandmother, she felt that he should stay with her and her mother.

17. It was put to her by Mr Duane that, whilst she was prepared to consider any request made by Ms Bartlett’s family to spend time with the child, that she did not initiate any contact between the child and his family. Her answer was that they did not have to make any request:

    They already knew they were welcome in my home any time at all. If I had (A) there with me, they were welcome to come and see (A) when I was home with him. They didn’t have to ring. They didn’t have to – I just said, “Drop in” basically, anytime.[28]

    [28] Transcript 26.9.2008 at 237

Expert Report on Cultural Issues

1. Stephen Ralph, an independent cultural consultant, prepared an Expert Report on Cultural Issues. For the purpose of that report, he interviewed:

   a)Ms Bartlett;

   b)Mr Thomas;

   c)Ms D;

   d)Mr P;

   e)Mrs D Farley; and

   f)Ms J Farley.

2. He also met the child a, but did not interview him. He described the child as being of mixed Aboriginal-Caucasian descent and too young to identify as Aboriginal. He said:

   developmentally he is not at a stage where issues of identity and cultural affiliation have any meaning for him. Physically, (A) is of fair-light brown complex[29] with blue-green eyes and with distinctive Aboriginal facial features. It is likely that he would be identified by others as a child of Aboriginal descent. There is little doubt he would be identified and accepted by the local Aboriginal community as an Aboriginal child of the Bartlett-Thomas family. Through his Aboriginal family (A) has the potential to share in the culture of the Gumbayngirr people and actively participate in this rich cultural heritage.[30]

   [29] Sic 

   [30] Expert Report on Cultural Issues at paragraph [12]

3. Mr Ralph referred to Ms J Farley as being keenly aware of the importance of maintaining and supporting the child’s cultural heritage. She disclosed that her former partner and the father of her adult son was himself Aboriginal. However, she expressed the fear that the child would be psychologically damaged by being removed from her family if that were to be done solely for cultural and biological reasons, describing it as “repeating the stolen generation but this time in reverse”.[31]

   [31] Ibid at [18]

4. Mr Ralph described Mrs D Farley as seeing the child’s cultural connection as relevant but being more concerned with Ms Bartlett’s lack of parenting capacity and commitment. He said that:

   Her account of the issues impacting on (A) was clearly shaped by the bitter history of conflict with Ms Bartlett and what she viewed as Ms Bartlett’s failure to act appropriately as a mother to Ms (L).[32]

   [32] Expert Report on Cultural issues at [20]

5. On the other hand, Mr Ralph reported Ms Bartlett and her family as being of the view that the child would not be able to participate in his Aboriginal culture if he were to be raised in a non-Aboriginal household. They argued that the Farleys sought to minimize the significance of the child’s Aboriginality and attempted to influence him against them. They emphasised the importance of the child knowing his Aboriginal family and the culture and ways of Aboriginal people.

6. Mr Ralph expressed the view that the child’s cultural needs could be more effectively promoted by the Bartlett-Thomas family. He noted a number of difficulties, being:

   a)The poor level of communication and cooperation between the two families;

   b)Their “markedly different” attitudes to child-rearing, parenting and religion; and

   c)The lengthy history of acrimony and dispute revolving around the life and death of the child’s mother L.

7. Mr Ralph expressed the view that the child’s cultural needs were unlikely to be adequately met whilst he continued to live with the Farleys. He referred to the decision of the Full Court of the Family Court in the decision In the Marriage of B & R[33], where four themes emerged from a review of the literature:

   a)A child whose ancestry is wholly or partly indigenous is treated by white society as “black”, resulting in connotations of an inferior social position;

   b)The removal of an Aboriginal child to a white environment is likely to have a devastating effect, if it is coupled with long-term upbringing in that environment, especially if it results in exclusion from contact with the child’s family and culture;

   c)Aboriginal children are better able to cope with racial discrimination from within the Aboriginal community, because that community actively reinforces identity, self-esteem and appropriate responses; and

   d)Aboriginal children often suffer acutely from an identity crisis in adolescence, especially if brought up in ignorance of their aboriginality or in circumstances which deny or belittle their aboriginality.

   [33] (1995) 19 Fam LR 594

8. Mr Ralph expressed the view that there was a high risk that the child’s cultural needs would not be met if he continued to remain in the Farleys’ care. However, the child’s cultural needs would be met by immersion in the day to day life of Ms Bartlett and her large extended Aboriginal family. He dismissed the argument that if the child were to live with Ms Bartlett he would not know his European culture, saying:

   The Bartlett-Thomas family is an Aboriginal family living within mainstream Australian society. (A) like all other children will continue to be exposed to the values, beliefs cultural mores of mainstream Australian culture while still having the opportunity to explore his Aboriginal culture. It is also likely that a parenting order that allows (A) to spend time with the Farley family will also ensure that he remains attuned to the values, beliefs and mores that are an integral part of the Farley family.[34]

   [34] Expert Report on Cultural Issues at [32]

9. Mr Ralph referred to the “distress, anger and acrimony” that still shape the views and attitudes of the two families, but noted the one common link between the families as their commitment to ensuring the child’s welfare and adjustment, arising from their commitment and love for this child.

10. Mr Ralph was cross-examined by telephone on the fourth hearing day.

Family Report

1. The Family Report was prepared by Nick Paris, a Regulation 7 Family Consultant. For the purpose of his report, Mr Paris interviewed:

   a)Ms Bartlett;

   b)Mr Thomas;

   c)Mr P;

   d)Mrs D Farley; and

   e)Ms J Farley.

2. He also observed the child A in the presence of Ms Bartlett and, subsequently, Mr Thomas. He then observed him in the presence of Mrs D Farley and Ms J Farley.

3. Mr Paris noted that in Ms Bartlett’s original application, she sought orders either that the child should live with her or, in the alternative, that he should live with her and Mrs D Farley on a week about basis. As to this alternative proposal, Mr Paris observed:

   It does not appear that this is now desired by the applicant, nor in the Family Consultant’s view would this be a desirable outcome for (A). It does not appear that Ms Bartlett and Mrs D Farley currently have a communicative relationship.[35]

   [35] Family Report at paragraph [11]

4. Mr Paris took the view that the current focus in the proceedings (or foci) are:

   a)The cultural considerations relevant to the child; and

   b)The fact that at the death of the child’s mother, her psychological mother was in fact Mrs D Farley.

5. In the report, Mr Paris noted that, whilst Mrs D Farley’s immediate health did not appear to present a problem for her care of the child, she acknowledged that Ms J Farley had the overnight care of the child on Wednesday and Thursday evenings as well as on Saturdays. He went on to say:

   It would appear unlikely that Mrs D Farley would be able to maintain seven days a week care of (A). Despite this, there is a clear and existing bond between Mrs D Farley and (A), a relationship which would still need to be nurtured, even if (A) was placed by the Court in the primary care of Ms Bartlett.[36]

   [36] Family Report at [51]

6. The Family Report refers to the report-writer’s observations of the child with Ms Bartlett and Mr Thomas, and then with Mrs D Farley and Ms J Farley.

7. Mr Paris described Ms Bartlett as being “positive and affectionate” with him, and was described as happy to be in her presence. The child also recognised Mr Thomas, who engaged him in structured play.

8. Mrs D Farley and Ms J Farley were described as positive with the child throughout; they praised him during the observation. Whilst Mrs D Farley did not engage the child in play, Ms J Farley did.

9. In his evaluation, Mr Paris described Mrs D Farley as the most significant parental figure in the life of the child’s mother, L, both as she grew up and after the child A was born. He said:

   For this reason alone, I would suggest that (A) would need to have a meaningful relationship with Mrs D Farley, regardless of where (A) lives, given that Ms J Farley will be able to relate critical aspects of (L)’s personal history, which Ms Bartlett can only partially contribute to. There also appears little doubt that Mrs D Farley has a similar perception of her relationship with (A) as she did in her parental relationship with (L).[37]

   [37] Ibid at [65]

10. Mr Paris noted that Ms Bartlett’s children were all removed from her and placed into care. The child L was separated from her siblings and was the only one who was raised in a non Aboriginal foster placement. Mr Paris stated:

    Clearly, the institutional care which the other children received were (sic) vastly different to (L)’s experiences in living with the Farley family. That is not to say however that (L) did not suffer from identity issues during her adolescence and adult years, however in my view that is a significant indicator into what could occur for (A) if he was placed in the primary care of a non Aboriginal family.[38]

    [38] Family Report at [66]

11. Mr Paris stated that Ms Bartlett struggled in her relationship with L, finding it difficult to compete with her daughter’s relationship with

    
    

    Mrs D Farley, and speculated that this burden “could well be a major motivator for Ms Bartlett in wishing to provide her grandson with stability, life opportunities and an understanding of Aboriginal culture, which she was not able to afford (L) during her childhood and adolescence.”[39] 

    [39] Ibid at [67]

12. The Report recommends that the child should live with Ms Bartlett and spend one weekend out of every four and a week in each of the school holidays with the Farleys. The recommendation is also that the parties should be involved in mediation or counselling with a child and family counsellor for as long as is deemed necessary.

13. Mr Paris stated:

    However, it appears imperative in these proceedings to consider the cultural considerations for (A) being raised not only in an Aboriginal environment but with the biological extended family of his mother’s. This is likely to minimise (A)’s psychological trauma during adolescence and associated identity issues which undoubtedly would impinge upon his life if he too (like his mother) was raised in a non Aboriginal family.[40]

    [40] Ibid at [68]

14. Mr Paris also stated that:

    a)It is important for this child to have substantial relationship with Mrs D Farley and Ms J Farley, with whom he has a current primary bond; and

    b)Mr Thomas and Ms J Farley appeared to be capable carers interested in the child’s wellbeing.

Submissions

Submissions on Behalf of the First Applicant

1. Counsel for Ms Bartlett, Mr Duane, submitted that s.65C(ba) gives

   
   

   Ms Bartlett the right to apply for a parenting order as the child’s grandmother. Again, s.65C(c) allows Mr Thomas, Mrs D Farley and Ms J Farley to apply, as persons concerned with the care, welfare and development of the child.

2. The submission is that the child should live with Ms Bartlett, as recommended in both the Family Report and the Expert Report on Cultural Issues. Whilst there is likely to be a period of adjustment, the possibilities are far outweighed by the likelihood of harm to the child if he were not moved. Further, only a placement with the Bartlett-Thomas family would meet the child’s right to enjoy his Aboriginal culture, including the right to enjoy that culture with other people who share that culture, as provided by s.60CC(3)(h) of the Family Law Act.

   
   

   Mr Duane submitted that there was too much acrimony for the child’s cultural needs to be met by the Farleys.

3. Counsel for Ms Bartlett also drew the Court’s attention to the requirements of s.60CC(6), which sets out in detail what is meant by the child’s right to enjoy his Aboriginal culture. It includes the right:

   a)To maintain a connection with that culture; and

   b)To have the support, opportunity and encouragement necessary:

   i)To explore the full extent of that culture; and

   ii)To develop a positive appreciation of it.

4. These things, he submitted, are more likely with ordinary interaction, and the Farleys’ negative view, especially Mrs D Farley’s negative view, of the child’s biological family would be an impediment to his developing a positive appreciation of that culture.

5. It was submitted that neither s.61DA, providing for the presumption that it is in the best interests of the child for his parents to have equal shared parental responsibility, and s.65DAA, which provides for considering equal time or substantial and significant time between the child and his parents, would apply here (but see Davis & Davis &  Spring[41] at [115]).

   [41] [2007] FamCA 1149; (2008) 38 Fam LR 671

1. Counsel for the first applicant also referred the Court to the decisions of R & R[42](where husband of European extraction and wife of Aboriginal extraction); Mr B & Ms F & Mrs F & Mr B snr[43](Aboriginal child aged 6, two non-Aboriginal parties seeking custody); Tuite & Wall[44] (non-Aboriginal mother and Aboriginal father); Ms P & Mr B[45] (Aboriginal mother and non-Aboriginal father); In re CP[46] (Tiwi Island woman and Thursday Island woman).

   [42] (1985) FLC 91-615

   [43] (unreported) 23 February 1998 [1998] FamCA 239

   [44] [2003] FMCAfam 262

   [45] [1998] FamCA 765

   [46] [1997] FamCA 10

2. Counsel for Ms Bartlett submitted that if the child were to remain with the Farleys it is likely that he would have serious problems in his adolescence, if not earlier. The longer the child remains with the Farleys, the more difficult the transition will be to live with his biological family. The Farleys have a significant history of being unable to encourage and foster a relationship between, first, the child’s mother and, now, the child, with his biological family and culture.

   
   

   Mrs D Farley’s hostility towards the child’s family would be extremely difficult for him to deal with over time.

3. As to Mr P, Mr Duane submitted that he does not constitute an unacceptable risk of abuse to the child and onerous restrictions on him are not warranted.

4. Thus, it was submitted that the child’s best interests require that he be placed with his maternal grandmother and to spend time with the Farleys.

Submissions on behalf of the Second Applicant (or Third Respondent)      

1. Mr Hammond, who appeared for Mr Thomas, referred the Court to the unchallenged opinion evidence of Mr Paris and Mr Ralph that in the long term there is a substantial risk of the child suffering psychological harm if he were to remain living with the Farleys.   

2. He drew the Court’s attention to Mr Paris’ evidence in cross-examination by Mr Theobald of counsel, the Independent Children’s Lawyer. Mr Theobald asked him:

   You were told that Mr Thomas and Ms Bartlett said that they needed less time than you recommend to promote his[47] Aboriginal culture, and you were asked if that changed your view and your answer was no. Can you explain to us why you feel he needs the time with the Bartlett/Thomas family that you recommended in order to promote his Aboriginal culture; his Aboriginality seems to be the word they use?

   [47] i.e. the child

3. Mr Paris replied:

   My experience of Aboriginal children not having grown up in an Aboriginal family over the last 25 years of work I’ve been in the social welfare arena, has always had disastrous consequences for that child. That’s it.[48]

   [48] Transcript 16.12.2008 at 381

4. Mr Hammond also drew the Court’s attention to the report of

   
   

   Mr Ralph, where he said at paragraph 28:

   Aboriginal children often suffer acutely from an identity crisis in adolescence, especially if brought up in ignorance of or in circumstances which deny or belittle their Aboriginality. This is likely to have a significant impact upon their self-esteem and self-identity into adult life.[49]

   [49] The two sentences have been quoted in full from Mr Ralph’s Report.

5. Mr Hammond submitted that there was no evidence that either of the Farleys were able to identify or accept that this is an issue for the child. On the balance of probabilities the child would be at risk of suffering psychological harm associated with self-esteem and self-identity issues if he were to remain in their care. He further submitted that this particular risk would be ameliorated if the child were to live with his Aboriginal family.

6. It was further submitted that there was no evidence that Mr P, who currently lives in the home with Ms Bartlett, presented a risk to the child.

7. Mr Hammond examined matters that are relevant under s.60CC(3) of the Family Law Act. He conceded that the child’s primary bond is with Mrs D Farley and Ms J Farley but that he has a rapidly developing relationship with his maternal grandmother and maternal uncle (s.60CC(3)(b)).

8. He submitted further that:

   a)Whilst the child would initially suffer loss and grief if he were moved to the care of Ms Bartlett, he would be able to understand that the Farleys had not abandoned him if that were explained to him and, on Mr Paris’ evidence, would suffer less trauma at this age than at a later age (s.60CC(3)(d));

   b)The proposal by Ms Bartlett would have the benefit of providing the child with daily contact with his Aboriginal family and regular contact with Mr Thomas, his maternal uncle (s.60CC(3)(g));

   c)

   The applicant grandmother and the two respondents have satisfied the Court that they can meet the child’s physical and intellectual needs. However, Mrs D Farley does not display a willingness to recognise any need of the child’s that she perceives to conflict with her own, and Ms J Farley, whilst able to recognise needs of the child independent of her own, is limited by her involvement with her own mother and her inability to engage the child’s maternal family. By comparison, both Ms Bartlett and

   
   

   Mr Thomas are able to recognise the child’s needs and provide for them (s.60CC(3)(f));

   d)The evidence does not establish that either Mrs D Farley or Ms J Farley intend to allow the child the right to enjoy his Aboriginal culture. In particular, the child’s need to know about his Aboriginal culture can only be met by being immersed in the daily life of his kinfolk. The Family Court has accepted this proposition in Davis & Davis & Spring[50](s.60CC(3)(h)); and

   e)

   Whilst there is an allegation that, on their recent separation,

   
   

   Mr Thomas punched his former partner Ms O, Mr Thomas only admits to a slap, and there is no allegation of any domestic violence throughout their long relationship. The alleged act of domestic violence would not impact on the child or Mr Thomas’ ability to provide care for him (s.60CC(3)(j)).  

   [50] supra

9. Finally, Mr Hammond submitted that the Farleys and Ms Bartlett cannot effectively communicate with each other or co-operate in the care of the child. Further, there is a lack of determination on the part of Mrs D Farley to consider anyone else when making parenting decisions in relation to the child.

10. Because of the high conflict between the parties, there is no room for co-parenting or compromise.

11. Thus, he submitted that the orders proposed by Mr Paris are in the child’s best interests because:

    a)They minimise the opportunity for Ms Bartlett’s parenting to be undermined by the Farleys; and

    b)They allow the child to maintain his connection to the Farleys, to whom he is currently primarily attached and from whom he has received good physical care.

12. Mr Hammond submitted that the child should be immediately placed in the care of Ms Bartlett.

Submissions on behalf of the First Respondent

1. Counsel for Mrs D Farley, the first respondent, submitted that the members of the child’s biological maternal family gave evidence that they saw the child on only a handful of occasions prior to his mother’s death. Their contact with him was infrequent, at best.

2. Ms Gillies of counsel, who appeared for Mrs D Farley, submitted that the Court should be concerned about the letter that Ms Bartlett had sent to her daughter on or about 9^th December 2005.[51] She submitted that the letter showed the level of resentment that Ms Bartlett has exhibited towards Mrs D Farley’s involvement in her biological family, which she was unable to keep in check so as to prevent herself from sending such an offensive letter to her daughter.

   [51] See at [59] above

3. Further, Ms Gillies submitted that Ms Bartlett’s dislike and mistrust of the Farley family permeated her oral and written evidence. Whilst she made appropriate concessions that the Farleys were important people to the child and had played a significant role in his life, she resiled from her initial concession that the child should see the Farley family for a number of days each week. Her final position was that that he should spend only one weekend a month with them.

4. As to Mr Thomas, it was submitted that there were allegations against him that would show domestic violence by him towards his former de facto partner. Mr Thomas did not seek to give evidence to clarify the situation. Further, it was submitted that it is unknown as to how he would cope with the rigours of raising the child A as well as the three children already in his care without the support of Ms O, his former de facto.

5. Counsel for Mrs D Farley expressed concern about Mr P living in the home with Ms Bartlett and the child A, because of his history of excessive drinking and his criminal convictions.

6. As to the child’s participation in his Aboriginal culture, Ms Gillies submitted:

   There is no reason that (A)’s participation in those events cannot be facilitated on a regular basis if he were to remain in the care of the Farley family in the manner that it proposed by them. He would have ample opportunity to connect with his Aboriginality through the Bartlett family on the orders that the Respondent(s) propose.[52]

   [52] Submissions on behalf of the First Respondent at paragraph [61]

7. It was also submitted that Mr Paris’ proposal, which would see the child move immediately from his current home with the Farleys to

   
   

   Ms Bartlett’s home, was a “radical change” which did not come with any transitional plan to reduce his trauma. The Farleys provide the child with a very real link to his mother.

8. Further, there would be a real concern as to how the child’s relationship with the Farley family would survive if he were to see them for only one weekend each month. This is of concern given the acrimony between the parties.

9. Ms Gillies submitted that this is not a case where the child cannot have a significant and meaningful relationship with both his indigenous and non-indigenous families. There is no tyranny of distance, no suggestion that his aboriginality will be belittled or denied by the non-indigenous family or that his access to Aboriginal culture will be fettered or prevented. Thus, the child is outside the factual scenarios considered in Davis & Spring[53] or In the Marriage of B & R.[54]

   [53] supra

   [54] Supra

10. The submission is that the Court should make orders that provide for the child to spend significant time in each household. This would be the best way to prevent further proceedings.

11. As to the question of parental responsibility, which she described as “a vexed one”, Ms Gillies noted that it is universally acknowledged that the Bartlett/Thomas family are deeply mistrustful of the Farleys. She submitted:

    If the court is unable to make a finding that Ms Bartlett and the Respondents would be able to be consultative in relation to long term decisions relating to (A) it is open to the Court to indicate that certain aspects of parental responsibility be vested in different family members. For example, issues pertaining to (A)’s Aboriginal heritage may very well be entrusted to Ms Bartlett, whilst parental responsibility in relation to education and religion may be exercised by the Farleys.[55]

    [55] Submissions on behalf of  the First Respondent at [100]

12. Further, it was submitted that if the Court were to make a sole parental responsibility order in favour of Ms Bartlett, Mrs D Farley would seek an order restraining Ms Bartlett or anyone else from knowing the child’s surname as anything other than Thomas-Farley, which was the name that was given to him by his mother.

13. Finally, counsel for the first respondent submitted that if the Court were to make an order that one or other of the parties were to have sole parental responsibility of the child, then the other parties should be given the ability to contact schools, doctors and third parties to obtain information about the child.

Submissions on behalf of the Second Respondent     

1. Counsel for Ms J Farley, the second respondent, submitted that the Court should make orders:

   a)That the child should live with Ms J Farley;

   b)That Ms J Farley, Mrs D Farley and Ms Bartlett have shared parental responsibility for the child;

   c)That the child should spend time with Ms Bartlett:

   i)Every second Thursday to the following Monday;

   ii)At other times as arranged between the parties; and

   iii)The first half of the school holidays during the year and one week each fortnight during the Christmas holidays;  

   d)That the child would spend time with Mr Thomas during any time he is with Ms Bartlett.

   e)Other arrangements as agreed

   f)That the parties continue to use a communication book.

   g)That none of the parties drink alcohol within 12 hours of spending time with the child (presumably before) and the child not be exposed to the consumption of alcohol or illegal substances.

2. Mr Blond of counsel, who appeared for Ms J Farley, submitted that the child would not be immune from the acrimony that Ms Bartlett and her family have towards the Farleys. Whilst much of the case has focused on cultural issues, this is only one of the issues requiring consideration. The circumstances of the case warrant child-focused orders that provide for the child to remain with his primary bond with the Farleys and maintain his cultural connection by spending time with Ms Bartlett and Mr Thomas.

3. In particular, he submitted that Ms J Farley has consistently maintained her child focused position.

4. Mr Blond submitted that the decision in Davis & Davis & Spring is of little relevance as the factual matrix in the current case could not be further from the fact situation in Davis. In that case the Court was placed in a position of having to choose between maintaining the cultural connection and the stability and emotional connection. The facts in this case do not put the court in that position. The crucial question before the Court is to determine how much time is needed to maintain a cultural connection for this child.

5. He submitted that the importance of culture as one of a number of states principles must, of necessity, be balanced in the wider context of the child’s best interests. He referred to the decision of Brown J in Mazorski v Albright[56], where her Honour considered at [17]-[26] the definition of the phrase “meaningful relationship” in s.60CC(2)(a) of the Act.

   [56] (2008) 37 Fam LR 518

6. Mr Blond was critical of Mr Thomas for his failure to inform the Court of the charges against, arising out of his separation from Ms O.

7. He expressed concern about Ms Bartlett’s household, mainly due to the presence of Mr P and the fact that the Bartlett and Thomas family see no problem with Mr P arising in the home and caring for the child.

8. Mr Blond submitted that:

   a)Ms Bartlett was unable to facilitate a relationship between the child and the Farleys;

   b)The child’s primary attachment is with the Farleys, and the effect of change has been given secondary consideration to maintaining a cultural connection, particularly in the Family Report;

   c)If the Court were to make orders in line with the Family Report, the child would be affected adversely, considering the child’s age and the time he has spent with the Farleys;

   d)The orders sought by the Farleys, whilst problematic, will not adversely affect the emotionally and psychologically;

   e)The child can maintain his cultural connection by living with the Farleys and spending time with the applicants; and

   f)His best interests are not served by removing him from his primary attachment when there is no requirement to do so. 

Submissions on behalf of the Independent Children’s Lawyer

1. Mr Theobald, the Independent Children’s Lawyer, submitted that the dispute between Ms Bartlett and the Farleys extends over two generations and this historical context explains:

   a)The deep suspicion and concern expressed by Mrs D Farley and Ms J Farley towards Ms Bartlett and Mr Thomas; and

   b)The inability of Ms Bartlett to communicate with either Mrs D Farley or Ms J Farley when it would clearly be in the child’s interest for her to do so.

2. The Court, he submitted, could have no confidence that either the Farleys on the one hand or Ms Bartlett on the other would communicate in a positive way with regard to the child or promote his relationship with the other parties.

3. It is relevant that both Ms Bartlett and Mr Thomas have given evidence that they have both stopped drinking alcohol. Ms Bartlett said that she gave up alcohol some twenty-three years previously.

4. Mr Theobald referred to the emphasis that the Family Law Act gives to the issue of Aboriginality. He referred to the summary of the relevant law given by Young J in Davis & Davis & Spring[57] at [51]-[54] and the importance of the paternal grandmother in that child’s life, at [57]-[93].

   [57] Supra

5. He referred to the reports by Mr Paris and Mr Ralph, both of whom were firm in their evidence and did not alter their views under cross-examination. Each one points to the benefits of the child living with

   
   

   Ms Bartlett and being integrated into his large Aboriginal family.

6. Significantly, Mr Theobald stated:

   It is clear that at some stage regardless of whether (A) is with

   
   

   Ms Bartlett or Mrs D Farley that either Mr Thomas or Ms J Farley will assume care of (A). (A) is more closely attached to

   
   

   Ms J Farley than Mr Thomas at this time. Mrs D Farley and

   
   

   Ms J Farley changed their application so that they are in effect seeking that Ms J Farley have parental responsibility for (A). It appears that Mrs D Farley could not care for (A) without the assistance of Ms J Farley. It is unknown how Ms Bartlett would cope with the fulltime care of (A).[58]

   [58] Submissions on Behalf of the Independent Children’s Lawyer at paragraph [25](xiii)

7. Mr Theobald also made these points:

   a)The child now has no known biological parents available, as his mother has died and his father is unknown;

   b)Mrs D Farley and Ms J Farley have played a parental role with respect to the child;

   c)Ms Bartlett and Mr Thomas, representing the child’s Aboriginal culture, also offer a parental role and, therefore, the orders to be made should recognise the benefit to the child in having a meaningful relationship with all four;

   d)The acrimonious relationship between the two groups of adults is such that it will be difficult to avoid psychological harm to the child, whatever orders are made; and

   e)Orders should be designed to limit contact between the two groups at changeovers and there should be an injunction directed to both parties not to denigrate any of the others in the child’s hearing.  

8. The Independent Children’s Lawyer considered that any order made should provide that the child should not be left alone with Mr P, not only to protect him from any approach by Mr P but also to ensure that allegations of improper behaviour by Mr P could not be used to reopen this case.

9. He also submitted that there was no cogent evidence of the child being exposed to family violence, and if there was any violence between

   
   

   Mr Thomas and his former partner, it was not in the child’s presence.

10. As to the child’s connection with his Aboriginal culture, the Independent Children’s Lawyer commended to the Court the discussion by Young J in his decision In the Marriage of B and R[59] at [75] et seq as to what constitutes a connection with culture, referring to the decision of Moore J in B & F[60]. Young J said at [79]:

    The 2006 amendments strengthened the language of the provisions in relation to the cultural needs of indigenous children. They introduced a specific right of the child to, inter alia, ‘explore the full extent’ of his or her culture and ‘to have the support, opportunity and encouragement necessary’ to do so. A child of Aboriginal heritage also has the right to ‘develop a positive appreciation of that culture’. The previous legislation required the court to consider ‘the need’ of an indigenous child to maintain a connection with his or her culture. By comparison, the new language creates a far greater imperative of the court to give consideration to issues of culture. Certainly, the 2006 amendments imbued the notion of ‘connection’ with a stronger and more active meaning.[61]

    [59] Supra

    [60] supra

    [61] (1995) 19 Fam LR 594; FLC 92-636 at [79]

1. Mr Theobald stressed that the Family Law Act requires the child to develop a connection, not an academic knowledge.

2. As to the question of parental responsibility, it was submitted that the differences in parenting style between the parties would make it desirable that the areas of dispute between them should be reduced. He submitted that the child should live with Ms Bartlett, assisted by Mr Thomas. To avoid disputes as to the child’s long term welfare or even his day to day care, parental responsibility should be given to

   
   

   Ms Bartlett and Mr Thomas.

Conclusions

1. This matter has a long history. The differences between the parties have been ongoing since long before this little boy was born. From the evidence, it is clear that there is a considerable degree of acrimony between Ms Bartlett and Mr Thomas on the one hand and Mrs D Farley and, to a lesser extent, Ms J Farley on the other. It is clear that the parties all love and care for him and want him to live with them. However, their mutual mistrust and hostility makes it extremely unlikely that they will ever be able to cooperate about this child’s welfare.

2. Ms Bartlett is the child’s maternal grandmother; she and Mr Thomas, his uncle, are his nearest blood relatives. His mother has died. His father’s identity has not been revealed in evidence and his whereabouts are apparently unknown. He has had no contact with his son throughout the child’s life. 

3. Ms Bartlett and Mr Thomas are Aboriginal. The child, on his mother’s side, is Aboriginal. They offer to him the opportunity to connect with and participate in his Aboriginal culture.

4. Mrs D Farley and Ms J Farley are not Aboriginal. They are not this child’s relatives by blood.

5. However, they have filled the parenting role for this child since he was a baby. It is their evidence that the child’s mother, L, said that she wanted them to look after the child in the event of her untimely death. The mother changed her name to Thomas-Farley to show her connection to them.

6. Mrs D Farley had the child’s mother in her care from the time that she was 8 days old until she was about 17 years of age. Her own mother, Ms Bartlett, was unable to look after her daughter at that stage.

   
   

   Ms Bartlett’s attempt to obtain the custody of the child’s mother in the Supreme Court proceedings Thomas v Farley & Anor[62] was unsuccessful.

   [62] supra

7. On his mother’s death, Mrs D Farley and Ms J Farley assumed the care of the child and have brought him up ever since. There is no doubt that they love him and care for him and that they have looked after him well.

8. Mrs D Farley and Ms J Farley have been, and are, the child’s psychological parents and clearly occupy an important position in his life. They have been described as a link to his mother.

9. I have listened carefully to the evidence and observed the parties in the witness box. I have considered the Family Report and the Expert Report on Cultural Issues, and I have listened carefully to the cross-examination over the telephone of Mr Paris and Mr Ralph. I have read the submissions in detail.

10. What emerges is a situation where the parties are at odds, divided by acrimony and suspicion, much of it longstanding. It is important to state, however, that I did not form the view that Ms J Farley holds an implacable hostility towards Ms Bartlett and the rest of the child’s Aboriginal family. Of all the parties, she appeared to be the most willing to compromise and understand the child’s need for a connection with his Aboriginal family and culture. Whilst she is in the unenviable position of being between the formidable figures of her mother on the one hand and Ms Bartlett on the other, Ms J Farley appeared to be more prepared to communicate with the Bartlett/Thomas family about the matters concerning the best interests of this child. The Bartlett/Thomas family would do well to give Ms J Farley more credit than they appear to have done in the past. It would be in everyone’s interest, particularly the child’s, if they did.

11. The objects and principles of Part VII of the Family Law Act are set out in s.60B of the Act. In this case, whilst s.60B(1) refers to “parents”, this child’s natural parents are no longer present in his life. His mother is deceased and his father has never played any role in his life. His identity has not been revealed, although his name appears to be known[63]. Nevertheless, the objects are important and orders made should reflect these objects.

    [63] See Mr Ralph’s report at paragraph [6]

12. Subsection 60B(2) of the Act sets out the principles underlying the objects in s.60B(1). The principle in s.60B(2)(b) is of particular significance here:

    Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);

13. Ms Bartlett, the child’s grandmother, and Mr Thomas, the child’s maternal uncle, are clearly regarded as people significant to the child’s care, welfare and development.

14. The child’s culture is given particular importance in s.60B(2) and (3). Section 60B(2)(e) provides:

    Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

15. This is developed in s.60B(3):

    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

    (a)     to maintain a connection with that culture; and

    (b)to have the support, opportunity and encouragement necessary;

    (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

    (ii)to develop a positive appreciation of that culture.

16. The Court must regard the best interests of the child as the paramount consideration (s.60CA). It is clear that the child’s right to enjoy his Aboriginal culture is an important consideration in determining his best interests, and both Mr Paris, in the Family Report, and Mr Ralph, in the Expert Report on Cultural Issues, stress that the best way for that to occur is for him to live with his Aboriginal family. Neither Mr Paris nor Mr Ralph was shaken in cross-examination on that point.

17. Turning to the matters in s.60CC which the Court must consider in determining the child’s best interests, s.60CC(2) provides that the primary considerations are:

    a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

    b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

18. Whilst this child’s natural parents are not available, in Davis & Davis & Spring at [59], Young J said:

    Though subpara (a) restricts the term “meaningful relationship” to both parents I have intentionally, and in the context of my subsequent discussion of the law of parenthood as it related to the paternal grandmother, extended my primary considerations to include that person who has had the primary and meaningful relationship with the child throughout her life.[64]

    [64] [2007] FamCA 1149; (2008) 38 Fam LR 671 at [59]

19. It appears to me that this Court should take a similar approach in the circumstances of this case. Mrs D Farley and Ms J Farley have acted in the parental role in respect of this child since his mother died in early 2006, when he was only 15 months old. They clearly have a meaningful relationship with him, which needs to be preserved. To this extent, I have some reservations as to whether, if the child is to live with Ms Bartlett, Mr Paris’ recommendation that he spend only one weekend out of four with the Farleys would be sufficient to maintain that relationship, which I accept is important to the child.

20. The Independent Children’s Lawyer has, rightly in my view, raised concerns about the second of the primary considerations, being the need to protect the child from psychological harm.[65] The acrimony between the two families would appear to carry the risk of some harm in that regard, whatever order is made. I am clearly of the view that, as the Independent Children’s Lawyer recommends, orders should be made to:

    a)Limit contact between the parties at contact changeovers; and

    b)Restrain each party from making derogatory comments about the other.  

    [65] Submissions on Behalf of the Independent Children’s Lawyer pages 20-21 at [28]

21. As to Mr P, he is a man with an unfortunate history, which includes a carnal knowledge conviction in respect of a girl under the age of 16. However, the likelihood of his making an improper approach to the child would appear to be small. The concerns expressed by the Farleys about Mr P would seem to be exaggerated, in my view, but nevertheless those concerns are held.

22. If Mr P is to remain living in the same house as Ms Bartlett, the child should not be left alone in his company.

23. Whatever the circumstances of the altercation between Mr Thomas and his former de facto partner may be, there is no evidence that he poses any threat to the child by way of family violence.

24. Subsection s.60CC(3) of the Act sets out additional considerations for the Court.

25. The child has not expressed any views and is too young to do so (s.60CC(3)(a)).

26. The child’s primary bond remains with Mrs D Farley and Ms J Farley, who have brought him up since his mother died. He has developed a relationship with Ms Bartlett, his grandmother, and Mr Thomas, his uncle (s.60CC(3)(b)).

27. Despite the animosity between the Bartlett/Thomas family and the Farleys, there is an acceptance by each family of the need to facilitate and encourage a close and continuing relationship between the child and the other family (s.60CC(3)(c)). In my view, it is rather a grudging acceptance, although that criticism applies significantly less so to

    
    

    Ms J Farley, who seems to have a greater understanding and acceptance of this concept.

28. One issue that is of concern to the Court is the likely effect of a change in the child’s circumstances, particularly as both Mr Paris and

    
    

    Mr Ralph have strongly recommended that the child be removed from the care of the Farleys and placed in the care of Ms Bartlett and

    
    

    Mr Thomas (s.60CC(3)(d)). As Mr Hammond submitted, Mr Paris in cross-examination agreed that the child may suffer loss and grief if he were immediately moved to the care of Ms Bartlett, and there may well be a short term detriment to him at being separated from the Farleys. This would hardly be surprising, as the child has lived with them since he was fifteen months old and they have loved him and cared for him.

29. Nevertheless, Mr Paris gave evidence that the separation would be less traumatic for the child at this stage of his life rather than later on, and he is of an age where he can bond with Ms Bartlett and Mr Thomas. I accept this evidence. His grandmother and uncle are not unknown to the child and have been seeing him regularly.

30. The practical difficulty and expense of the child spending time with the Bartlett/Thomas family whilst with the Farleys, and vice versa, is not great, as they all live in the Coffs Harbour area (s.60CC(3)(e)). The difficulty is more a matter of animosity than geography.  

31. Subparagraph (f) of s.60CC(3) specifically refers to the capacity of grandparents and other relatives to provide for the child’s needs:

    the capacity of:

    (i)     each of the child’s parents; and

    (ii)any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs.

32. I am satisfied that both Ms Bartlett on the one hand and Mrs D Farley and Ms J Farley on the other have the capacity to meet the child’s physical and intellectual needs. Mr Thomas has given evidence of his care for the three children who have been in his care, although the situation has changed somewhat, since he and Ms O have separated, apparently permanently.

33. The concern would have to be with the child’s emotional needs. This is not to say either Mrs D Farley or Ms J Farley are uncaring, because they clearly love him. Rather, the concern relates to the child’s need to have a connection with his culture. Both Mr Ralph and Mr Paris have referred to the difficulties met by children of Aboriginal or part Aboriginal children when raised other than in an Aboriginal family.

34. Mr Hammond, for Mr Thomas, has submitted that:

    …the Court would be satisfied that Mrs D Farley has not display(ed) a willingness to recognise any need of (A)’s that she perceives to conflict with her own needs, that Ms J Farley may be able to recognise [A]’s needs independent of her own but is limited by the involvement of her Mother and her inability to engage (A)’s maternal family…

35. Whilst Mr Hammond has described Ms J Farley in more sympathetic terms than Mrs D Farley, it is my view that Ms J Farley’s inability to engage the child’s maternal family is not from want of trying on her part.

36. Nevertheless, the recommendation from both Messrs Paris and Ralph is that the child’s long term emotional needs are tied up with his need to enjoy and connect with his Aboriginal culture, which can best be done from within his maternal family.

37. This child has only just attained the age of 5 years, having been born [in] 2004. He is a little boy of Aboriginal background, although his father was apparently not Aboriginal[66] (s.60CC(3)(g)).

    [66] See Mr Ralph’s report at paragraph [6]. Mr Ralph states that the father’s name is known.

38. Subparagraph (h) of subsection 60CC(3) deals directly with the child’s Aboriginality:

    if the child is an Aboriginal child or a Torres Strait Islander child:

    (i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    (ii)     the likely impact any proposed parenting order under this Part will have on that right.

39. It is significant that Mr Ralph, who is Aboriginal himself, has described the child as:

    of fair-light brown complex with blue-green eyes and with distinctive Aboriginal facial features. It is likely that he would be identified by others as a child of Aboriginal descent. There is little doubt that he would be identified and accepted by the local Aboriginal community as an Aboriginal child of the Bartlett- Thomas family.[67]

    [67] Ibid at [12]

40. Mr Ralph referred to the decision of the Full Court of the Family Court of Australia in B & R[68] where the court noted four ‘constant themes’ that emerged from the literature, one of which was:

    In Australian society a child whose ancestry is wholly or partly indigenous is treated by the dominant white society as “black”[69]

    [68] Supra

    [69] Ibid at [28]

41. It is noteworthy that s.60CC(3)(h) refers specifically to the child’s “right” to enjoy his Aboriginal culture. This right is explained in s.60CC(6).

42. A parenting order that places the child with the Farleys would, in my view, based on the recommendations of both Mr Paris and Mr Ralph, seriously impinge on the child’s right to enjoy his Aboriginal culture. It would keep him to a large extent outside that culture. Mr Paris said in his evidence that, from his experience, Aboriginal children not having grown up in an Aboriginal family has always had “disastrous consequences” for the child. The reports of the child’s mother’s lifestyle, after she left the care of Mrs D Farley shortly before she turned 17, would tend to bear that out.

43. A parenting order that permitted the child to live with his grandmother, who is Aboriginal and an elder of her Gumbayngirr people, would, in my view, have positive impact on this child’s ability to exercise his right to enjoy his Aboriginal culture.

44. I am also satisfied that such an order would not result in the child losing his contact with European Australian culture. He will not be losing his relationship with the Farleys, and he will continue to live in the Coffs Harbour area. It is not as if he were to move to a remote area of Central Australia, for instance; he will continue to live on the North Coast of New South Wales, surrounded by mainstream Australian culture.

45. Ms Bartlett and Mr Thomas on the one hand, and the Farleys on the other, have demonstrated a positive attitude to the child and are willing to take on, or continue, the responsibilities of parenthood. The parenting styles differ markedly. However, whilst Ms Bartlett was not in a position to undertake the care of her daughter when she was a baby, that was 41 years ago, and the situation is very different now. It is significant that both Ms Bartlett and her son having given up drinking alcohol, which was a cause of many problems in the past. After a lengthy abstinence in each case, it would appear to be unlikely that they would deviate from this course now.

46. Where the parties differ is in their attitude to the child’s right to enjoy his Aboriginal culture. In fairness to Ms J Farley, she has demonstrated an awareness of the need for him to learn about his culture, but with the best will in the world she cannot provide him with the “hands on” learning experience that his Aboriginal family members can.

47. The Court needs to consider any family violence involving the child or a member of the child’s family (s.60CC(3)(j)). There is no family violence involving the child. There is an allegation made in respect of Mr Thomas in respect of his break up with his former de facto partner, and he has made an admission of a “slap”, but there is no evidence that would lead the Court to have any concern that the child would be subject to, or witness to, family violence in either household, or set of households.

48. There is no evidence of any relevant family violence order (s.60CC(3)(k)).

49. It would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child (s.60CC(3)(l)). The orders I propose to make are largely based on the recommendations of the two independent experts and the submissions of the Independent Children’s Lawyer. The orders are designed to reduce the possibility of friction between the parties whilst endeavouring to preserve the benefits of the relationship with the Farleys which this child enjoys. The Farleys have looked after this child well since his mother died, and his maternal family should recognise that fact. They should also recognise that both Mrs D Farley and Ms J Farley are important figures in this child’s life.

50. There are no other facts and circumstances the Court thinks is relevant (s.60CC(3)(m)).       

51. I have previously[70] referred to s.60CC(6) of the Act, which explains the right of an Aboriginal or Torres Strait Islander child to enjoy his or her particular culture. The section provides:

    For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her aboriginal or Torres Strait Islander culture includes the right:

    (a)     to maintain a connection with that culture; and

    (b)to have the support, opportunity and encouragement necessary:

    (i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

    [70] At [192] above

    (ii)     to development a positive appreciation of that culture.

52. I am satisfied that the best way for the child to exercise his right to enjoy his Aboriginal culture is for him to live with his biological family, as recommended in the Family Report and the Expert Report on Cultural Issues.

53. I also accept that Mrs D Farley and Ms J Farley are important figures in this child’s life and it is in the best interests of the child that his connection with them be maintained. Whilst the Family Report contains a recommendation that he should spend one weekend in four with the Farleys, I am concerned that this may not be sufficient to maintain this relationship, given the acrimony and suspicion that exists between the two families. In my view the child should spend each alternate weekend with the Farleys.

1. I accept the recommendations of the Independent Children’s Lawyer that orders should be made to limit the opportunity for conflict to arise at contact changeover, and that the parties be restrained from denigrating each other in the presence or hearing of the child.

2. Section 61DA of the Act requires a Court, when making a parenting order in relation to a child, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. However, under s.61DA(4), the presumption may be rebutted if the Court is satisfied that it would conflict with the child’s best interests (Goode & Goode[71] at [43]).

   [71] [2006] FamCA 1346; (2007) 36 Fam LR 422

3. In this case, there is so much evidence of acrimony, hostility and suspicion between the two families, some of which was even apparent during cross-examination, that I am satisfied that it would not be in the best interests of the child for there to be equal shared parental responsibility. For that reason I propose to make an order that

   
   

   Ms Bartlett and Mr Thomas should have parental responsibility of the child.

4. I agree with the submission by Ms Gillies of counsel, for the first respondent, that the parties should be restrained from attempting to change the child’s surname. The surname on his birth certificate is “Thomas-Farley”, which was the surname of his mother, as can be seen from that same birth certificate.[72] The child’s name is part of his connection with his mother and should be retained.

   [72] Affidavit of Mrs D Farley 7.2.2008 at Annexure B

5. As there is to be a change in the place where the child is to live, and with whom he is to live, this should take place within a short period of time, so that he may get used to these new arrangements before he starts school.  

I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  9 December 2009