Cerny and Fink (No.2)
[2012] FMCAfam 1394
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CERNY & FINK (NO.2) | [2012] FMCAfam 1394 |
| FAMILY LAW – Parenting – whether child is ready to commence schooling – location of school to be attended – child of mixed Indigenous and non-Indigenous heritage – whether a family consultant or expert with Indigenous expertise or heritage appropriate. |
| Family Law Act 1975, ss.11B, 62B, 65DA Family Law Regulations 1984, reg.7 Education Act 1990 (NSW), ss.3, 21B, 22 Federal Magistrates Court Rules 2001, regs.15.09, 21.01A |
| Cerny & Fink [2012] FMCAfam 1247 Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428; (2010) 42 Fam LR 559; 237 FLR 53 |
| Applicant: | MS CERNY |
| Respondent: | MR FINK |
| File Number: | SYC 6275 of 2012 |
| Judgment of: | Monahan FM |
| Hearing date: | 5 December 2012 |
| Date of Last Submission: | 5 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Petrie |
| Solicitors for the Applicant: | Newport Law |
| Counsel for the Respondent: | Not Applicable |
| Solicitors for the Respondent: | Marsdens Law Group |
| Independent Children’s Lawyer: | Ms Weate, Jennifer Weate & Associates |
ORDERS
All extant applications be adjourned to this Court on a date and time to be fixed for mention (“the mention hearing”).
The parties forthwith do all acts and things necessary to ensure that the child [X], born [in] 2008, (“the child”) is enrolled in and commences attending [H] School in at the start of the NSW gazetted school Term 1 of 2013.
Pursuant to s.62G(2) of the Family Law Act 1975 (“the Act”), the parties and the child attend upon a Family Consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia, Sydney Registry (with such family consultant to be, if possible, a person with expertise in assessing issues particular to a child of mixed Indigenous and non-Indigenous heritage) (“the Family Consultant”) for the purposes of the preparation of a Family Report to be given to the Court at the earliest possible date.
AND FURTHER:
(a)The Family Report address the issues in this dispute relevant to ss.60cc, 61da and 65daa of the Act and any other matters that the Family Consultant considers important to the welfare or best interests of the child;
(b)The parties comply with all reasonable directions and requests of the Family Consultant;
(c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court;
(d)In the event that the Family Consultant is one appointed under reg.7 of the Family Law Regulations, then within seven (7) days of being notified of the Family Consultant, the legal representative for each of the party deliver to the Family Consultant copies of all relevant applications, responses and affidavits and court orders filed by or on behalf of the party in the proceedings AND copies of any intervention or restraining orders currently in force;
(e)The Applicant’s legal representative and Respondent’s legal representative (or if unrepresented, the parties themselves) confirm with the Family Consultant no later than seven (7) days prior to the scheduled interviews that the interviews will proceed on the dates allocated (“the interviews”); and
(f)If either party proposes to have the Family Consultant available for cross-examination purposes at the Final Hearing, then such party or such party’s legal representative will do the following:
(i)notify the relevant Family Consultant well in advance of the Final Hearing;
(ii)ensure that the Family Consultant is available to attend Court on the first morning of the Final Hearing at 11:00am; and
(iii)at least seven (7) days prior to the Final Hearing provide the Family Consultant with copies of all updated affidavit material, and any amended application or response filed after the interviews.
AND THE COURT NOTES THAT:
(A)These Orders were made following an interim hearing conducted on 5 December 2012.
(B)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (“the Act”), 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 Annexure A and those particulars are included in these orders.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Monahan delivered this day will for all publication and reporting purposes be referred to as Cerny & Fink (No.2).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6275 of 2012
| MS CERNY |
Applicant
And
| MR FINK |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings are between MS CERNY (“the mother”) and MR FINK (“the father”). Both parties are seeking parenting orders or various parenting orders in relation to their child [X], born [in] 2008 (“[X]” or “the child”).
The dispute which is the subject of this decision relates to whether [X] should commence school in January 2013 or remain in his preschool for a further 12 months before commencing school in 2014. In the event that the Court makes orders for [X] to attend school in 2013, then the parties are also in disagreement as to which school [X] should attend.
The mother was represented by Ms Petrie of counsel at the interim hearing conducted on 5 December 2012 (“the interim hearing”). The father was represented by his solicitor, Mr Reeve.
When the matter was before me on 30 October 2012, I determined that the matter would benefit from the appointment of an Independent Children’s Lawyer (“ICL”). Ms Weate was subsequently appointed in that capacity and appeared before me when the matter was in Court on 23 November 2012 and again for the interim hearing.
Background
I outlined the relevant background of the parties in paragraphs 7 through 11 of my decision delivered on 30 October 2012, which I subsequently settled and released with the citation Cerny & Fink [2012] FMCAfam 1247 (“the first interim decision”). For the reasons that I gave in the first interim decision, I dismissed the mother’s application for a recovery order. I also determined that the matter should return in the relative short term to reconsider the “live with” and “spend time with” arrangements for [X].
Following the first interim decision, I re-listed the matter to 23 November 2012 on which occasion Ms Weate appeared as the ICL. I also varied the “spend time with” arrangements by consent and agreed to entertain a further short interim hearing in respect of the school/day-care issue outlined above.
The matter returned before me for that purpose on 5 December 2012 and following the interim hearing, I reserved my decision.
Issues and proposals
Each of the parties provided the court with a brief case outline document. In summary, the parties remain in dispute as to:
(i)whether [X] should transition to kindergarten next year (as the father seeks with the support of the ICL) or whether he should remain in his current preschool for a further year, with a view to transition to school in 2014 (as the mother seeks);
(ii)if the Court determines that [X] should transition to kindergarten commencing in 2013, then whether [X] should commence his schooling at [H] School (as the father seeks with the support of the ICL) or at [W] School (as the mother seeks); and
(iii)a further issue which arose during the course of submissions, as to whether the matter may benefit from the ordering of a family report at an early stage. While there was no disagreement between the parties that the receipt of an early family report would indeed benefit the matter, the ICL raised an issue as to whether the expert to be engaged should have expertise in issues relevant to the child being of Indigenous and non-Indigenous background. The mother questioned whether such a family report should be prepared by a family consultant who identifies as Aboriginal. The father supports the ICL’s submission.
I will also note at this stage that the mother is seeking to re-agitate the residence arrangements which I had foreshadowed in the first interim decision may be the case may indeed do so in its decision of 30 October 2012.
Submissions
Each of the parties’ legal representatives and the ICL presented oral submissions to the Court. The transcript for the interim hearing heard by me on 5 December 2012 will of course reflect those submissions. In addition each of the parties’ legal representatives provided the Court with a written case outline document incorporating details of the precise orders sought.
In addition to relying on their affidavit material, a number of documents were filed by the parties:
(i)a Google map marked and highlighted by the mother, denoting relevant locations to the dispute, which was admitted and marked as Exhibit “AM1”;
(ii) a letter from the mother’s solicitors to the ICL dated 5 December 2012, which was admitted and marked Exhibit “AM2”;
(iii)a policy document for enrolment of students in New South Wales government schools, which was admitted and marked as Exhibit “RF1”;
(iv)correspondence between the ICL, the parties and the Child Dispute Services of this Court, dated 29 November 2011, which was admitted and marked as Exhibit “ICL1”.
I do not propose to summarise the parties’ and the ICL’s oral submissions any further in these reasons, but I refer to those submissions in my discussion of the relevant law.
Law and discussion
I identified and discussed the relevant law with respect to interim parenting disputes in paragraphs 22 to 49 inclusive of the first interim decision. I do not propose to here repeat the relevant statutory provisions and analysis to which the Court has again had regard in considering this decision.
Commencement of school
Of relevance to this dispute is the applicable domestic law and policy for children commencing and attending New South Wales government schools. A useful overview of the relevant laws nationally can be found in chapters 13 and 14 of the book Children and the Law in Australia,[1] which I had the honour of co-editing.
[1] G Monahan & L Young (eds.), Children and the Law in Australia, LexisNexis Butterworths, Australia, 2008.
In New South Wales, whilst pre-school is optional for children, school education is indeed compulsory. That said, a number of New South Wales government schools contain pre-school classes and a number of private schools have what is known as a ‘prep year’. Legislation in the various Australian States and Territories generally requires children of certain ages to be enrolled in and attend a school, whether government or private, unless there is a reasonable cause for their non-attendance (such as illness).[2]
[2] Ibid, page 313.
As Des Butler and Ben Matthews state in chapter 14 of Children and the Law in Australia:
“The importance of ensuring children enrol in and attend school, both for the child’s benefit and for the benefit of society, is reflected in the fact that obligations are imposed on parents to ensure compliance with the attendance requirement, and in most jurisdictions a parent who fails to observe the obligation will commit an offence punishable by a fine.”[3]
[3] Ibid.
The ages of compulsory school attendance differ slightly, depending on which state or territory the child resides in. In New South Wales, parents are required to ensure that children of compulsory school age are enrolled in and attend school. ‘Compulsory school age’ is defined as being those of or above the age of six years, but under the age of 17 years (or who have finished year 10 if less than 17). In this respect, I am referring specifically to ss.3 and 21B of the Education Act 1990 (NSW) (“the Education Act”).
I also note that the obligations on parents to send their children to school are set out in s.22 of the Education Act. The relevant policy document tendered as Exhibit “RF1” also provides the following comments under the heading or under the subheading “Transition to School.” It states:
“It is recognised that the transition from early intervention, or other pre-school settings, to school is a significant step, particularly for students with special learning needs. Schools are encouraged to work collaboratively with parents, caregivers and other relevant personnel to facilitate planning for the important transition process.
Advice and assistance to support schools in this regard are available through specialist district personnel, such as the special education consultant, the early learning program co-ordinator and the itinerant support teacher, early intervention.”
Given the reality that most children do not turn six years of age on the first day of the school year, policy has been developed by the relevant schooling authorities. In New South Wales the relevant department is the New South Wales Department of Education and Communities. In the document that was tendered as Exhibit “RF1”, which I note is also available on the website for the New South Wales Department of Education and Communities, there is a reference to the minimum ages that children should be before commencing school. Under the subheading “Kindergarten Enrolment”, the policy document states the following:
“Children may enrol in Kindergarten at the beginning of the school year if they turn five years of age on or before 31 July in that year.”
Transition to school
The parties both attached to their most recently filed affidavits a copy of a document entitled ‘Transition to School Observation Summary’ (“the Assessment”) dated 26 November 2012. What is clear from the document is that [X] underwent a transition to school assessment on 26 November 2012, administered by Ms P. Ms P is the ‘Literacy and Numeracy Leader: Indigenous Engagement K-2’, employed by the New South Wales Department of Education and Communities.
Ms P made the following observations and remarks in the Assessment:
“Background: [[X]] attends the centre 5 days per week. He is enrolled in the ‘[omitted]’ Room for older children aged 3-5yrs. The room has a maximum of 20 children per day with childcare staff.
[X] has been attending transition to school days. The transition to school days are held weekly at the two local schools[:] [J] School and [B] School. [X] has been attending the transition to school sessions during Terms 2, 3 and 4, 2012.
[[X]] has two (2) cousins who are also enrolled at the centre and participate in the transition to school sessions.
Observations:
[X] was observed to be playing with another boy beside the dolls’ house. He was playing hide and seek. He was playful and considerate towards his peers. This was during pack up time.
He complied with the teachers request to come and sit on the mat with the other children after 2 repeats.
[X] was asked to sit and talk at the table with me, away from the group. He complied easily. We engaged in a discussion about the lego and he began to build a tower. While he was building, he counted 3 pieces of lego touching each piece as he counted. He was reluctant to sing any songs with me but smiled when I sang him familiar chants. He completed the nursery rhyme ‘Humpty Dumpty’, taking turns with me.
[X] was able to tell me his first and surname and that he was 4 yrs old. After several different number hand gestures, he nodded when I held up four fingers.
He declined to be read to or ‘read’ (look at a picture book with me). But he could identify his name when I wrote it on a page in my notebook.
I seated myself close to [X] on the floor and asked if he would like to draw on my notebook. He declined. I offered him the pen anyway and he took it. He scribbled, ‘wrote’ and attempted to form the letters of his name when asked.”
Ms P provided the following summary and recommendations in the Assessment:
“Summary:
[X] presents as a bright, co-operative little boy. He enjoys daycare and is involved in activities and group time. He is able to engage in conversations with peers and adults and answer simple questions.
He can follow instructions and can comply with the teacher’s requests and is aware of a familiar routine.
He is demonstrating early literacy skills in name recognition, pre-writing skills and engaging in rhymes and turn-taking discussions.
[X] is demonstrating early numeracy skills by counting visible items by touching them, rote counting to 4 and recognising numbers visually represented (eg. four fingers equals four without counting one by one).
Recommendations:
[X] would benefit from attending Kindergarten in 2013, with a school that he is familiar with as part of the transition to school sessions.
[X] will benefit from the structured routine and learning experiences at school. He will also benefit from having peers that are familiar to him, attending the school also.
To ensure [X]’s success as school, I noted that [X] may require additional support with his speech and fine motor skills.
I observed his speech (articulation) was unclear when responding to a question about his school as follows[:]‘Do to bid stool’. (Go to big school).
Additionally, his pencil grip was loose and high. Both of these skills will impact on his writing.
I wish [X] a very successful Kindergarten year.”
Overall, it would be fair to say that Ms P gave the ‘green light’ to [X] commencing school in 2013.
The mother makes a number of criticisms of Ms P’s report. These are articulated in both her case outline document and in her most recently filed affidavit. Ms Petrie also referred to these criticisms in her oral submissions. Specifically, the mother states in her case outline that:
“Ms P’s report refers to a number of issues in relation to the child which would suggest that his cognitive skills, language skills and maturity are at an [sic] level where the child may benefit from a further year in preschool including the following:
o The child was slow to respond to requests made of him.
o The child’s numeracy skills are limited.
o The child was reluctant to engage or respond.
o The child did not wait his turn.
o The child appeared easily distracted and had a short attention span.
o The primary schools that the child has been attending through the transition to school program are different to the primary school that the Father proposes the child attends. The report recommends that the child attend a school ‘that he is familiar with’.
o The report recommends that the child ‘may require additional support with his speech and fine motor skills’. It is preferable for these issues to be properly addressed and resolved prior to the child commencing school.”
With respect, most of these highlighted behavioural characteristics are far from uncommon in many children of [X]’s age and in a not insignificant number of adults.
The mother also submitted in her case outline document that:
“The documents produced on subpoena by the child’s preschool do not adequately address the child’s readiness for school or cognitive skills and the only real evidence in this regard is Ms P’s report which is somewhat contradictory.”
Again, with respect, the Court does not see Ms P’s report as being unduly contradictory.
More generally, the mother makes the following submissions in her case outline document:
“5.1 The Mother submits that it is in the child’s best interests to attend a further year at his preschool ([O] Aboriginal Children’s Centre) for the following reasons:
i. The issue of primary care is yet to be determined on an interim or final basis in these proceedings and in the event that the Mother’s application for primary care of the child is ultimately successful, an application for the child to attend a school in close proximity to the Mother’s residence maybe sought. It is in the child’s best interests to have continuity in his education without the need to change primary schools.
ii. The parties recently separated in October 2012. At the time of separation, the Father unilaterally withheld the child from the Mother and the child did not spend any meaningful time with the Mother until after the commencement of the present proceedings. The parties’ respective circumstances have changed as a result of their separation and there is some distance between the parties’ respective residences. The child’s preschool has been a source of familiarity and ongoing routine during a period of significant change for the child.
iii. The child will not be five years of age at the time of commencement of the school year in 2013 and may therefore be young for his year and less mature than other students.
…
vi. A number of the child’s friends will continue to attend the preschool in 2013.
vii. The preschool directly caters for the child’s indigenous background.”
The father submits that the mother’s criticisms of Ms P’s assessment report are without foundation. Ms P clearly has expertise in the area of an assessment of a child for transition to school, and clearly recommends that [X] commence school in the new year. The father also submitted that the mother’s criticisms were ‘cherry-picked’ and are outweighed by those comments leading to the recommendations
Ms P made.
The ICL supported the father’s position in respect of [X] transitioning to school. She submitted that:
·[X] was old enough to commence school;
·[X] had been assessed as ready to commence school in the 2013; and
·[X] would be commencing school with close relatives, should he attend [H] School.
The ICL conceded that there was little information in the subpoenaed material from [X]’s preschool, to indicate that [X] had undergone an assessment other that by Ms P.
The father agreed with the ICL’s submission that there was nothing in the subpoenaed material to suggest that [X] was not able to transition to school. That said, he conceded that the wording of the mother’s subpoena may have limited the delivery of relevant documents.
The Court is satisfied that the benefits to [X] commencing school in 2013 outweigh any detriments. [X] is legally able to commence school, in 2013, and has been assessed as ready. The Court also notes that the enrolment form which was submitted by the parties to [H] School was signed by the mother in August 2012. I do note however, that there is a dispute as to the legitimacy of the father’s alleged signature on that document. Regardless, that is evidence that the mother formed a view, pre-separation at least, that [X] was ready for school.
Consequently, there will be Orders requiring the parties to ensure that [X] commences kindergarten in 2013. As a result, the Court now needs to consider the issue of which school [X] should attend in the short term.
The school that [X] should commence attending in 2013
As stated, the mother seeks that [X] commence kindergarten at [W] School. In support of this position, the mother raises the following points in her case outline document:
“i. [[W] School] is in close proximity to the Mother’s residence. The Mother works part-time and is able to take the child to school and collect him from school without the need for the child to attend before or after school care.
ii. The Father works full-time and will require the assistance of his family to take the child to and from school. It is preferable for the Mother to be responsible for taking the child to and from school as opposed to the paternal family pursuant to section 60CC(2)(a).”
The father submits the following:
·firstly, that the parties had previously agreed for [X] to commence kindergarten in 2013 at [H] School (as evidenced by the enrolment application attached to his most recent affidavit);
·secondly, there are benefits to [X] attending [H] School, as his cousins will also be attending (a factor which the father asserts the mother indeed acknowledged by completing the enrolment application for the said school); and
·thirdly, the father has now the opportunity of flexible working hours from his employer (as evidenced by the letter from his employer attached to his most recent affidavit) and that the father intends to make himself available to collect [X] at the conclusion of school each day. As far as taking the child to school, whilst his employment would prevent him from doing so, the father submitted that he has organized his aunt (whose children also attend the school) to do this.
The ICL, as stated, also supported [X] commencing school at the [H] School – at least in the short term.
The Court agrees that on the available evidence, [X]’s best interests would indeed be served by him attending [H] School – at least until the Court can reconsider the issue at a future hearing, final or interim. That said, the Court thinks any such further changes should not occur until the matter has had the benefit of a family or expert report.
Given this decision by the Court, the parties should have discussions at the earliest opportunity to ensure that both are able to attend at [X]’s first day of school. The Court assumes that, subject to any agreement to the contrary, the mother would be available to collect and return [X] to [H] School as part of the existing ‘spend-time’ arrangements.
Family/Expert report
With respect to the issue of family reports, the Federal Magistrates Court Rules 2001 (“the FMC Rules”) make provision for such reports. Regulation 21.01A of the FMC Rules provides:
“(1) A party to an application for final orders may apply for an order that a family report be prepared.
(2) The Court may take the following matters into consideration when deciding whether to order a family report:
(a) whether the proceeding involves:
(i) an intractable or complex parenting proceeding; or
(ii) if a child is mature enough for the child's views to be significant in determining the proceeding -- a dispute about the child's views; or
(iii) a dispute about the existence or quality of the relationship between a parent, or other significant person, and a child; or
(iv) allegations that a child is at risk of abuse; or
(v) family violence;
(b) whether there is any other relevant independent expert evidence available.
(3) An application for a family report (whether made orally or in writing), and any order made, must identify the issues to be addressed by the report.
(4) When ordering a family report, the Court may order a party or a child to attend for the purposes of preparing the report.
(5) If a family report is prepared in accordance with an order made under this rule, the Court may:
(a) give copies of the report to each party, or the party's lawyer, and to any independent children's lawyer; and
(b) receive the report in evidence; and
(c) permit oral examination of the person making the report; and
(d) order that the report not be released to a person or that access to the report be restricted.”
Family reports are prepared by persons appointed as family consultants pursuant to s.11B of the Family Law Act 1975 (“the Act”), which allows, inter alia, for family consultants to be appointed under the Family Law Regulations 1984 (“the Family Law Regulations”). Regulation 7 of the Family Law Regulations provides as follows:
“For paragraph 11B (c) of the Act, a family consultant may be appointed in writing by:
(a) the Chief Executive Officer of the Family Court of Australia; or
(b) the Chief Executive Officer of the Federal Magistrates Court.”
External family consultants appointed under reg.7 of the Family Law Regulations are often used to provide family reports when the in-house family consultants employed by the Court do not have availability to prepare a family report.
Regarding expert reports, reg.15.09 of the FMC Rules provides:
“(1) The Court may, at the request of a party or of its own motion:
(a) appoint an expert as court expert to inquire into and report on a question arising in the proceeding; and
(b) give directions about an experiment or test (other than a testing procedure for section 69W of the Family Law Act) for the purposes of the inquiry or report; and
(c) give further directions, including to extend or supplement the inquiry or report.
(2) If possible, the court expert should be a person agreed upon between the parties.”
In respect to the issue of whether the family report should be conducted by a person with knowledge or expertise relevant to indigenous Australians, I note that the Full Court of the Family Court of Australia (“the Full Court”) (comprised of Warnick, Thackray and O’Ryan JJ) considered the issue of the particular expertise needed for assessment of familial relationships and the interests of a child in an Indigenous Australian context in the case of Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428; (2010) 42 Fam LR 559; 237 FLR 53. The Full Court was considering an appeal from this Court involving a father of Torres Strait Islander heritage and the subject child’s half-sister, who was of [omitted] Aboriginal descent, who had raised the child following the death of the mother. The matter had received the benefit of a family report by a family consultant who had, prior to writing her report, visited the father’s home in the Torres Strait but had not visited the home of the half-sister. The report writer had also made extensive reference to the father’s cultural heritage but little or no reference to that of the maternal family and its importance for the child. In addition, the report writer had relied on social science research that might be of greater applicability to children from a European or Anglo-Saxon Australian cultural background than to children from Indigenous cultures. In overturning the trial judge’s decision, the Full Court made the following comments which bear strongly on the Court’s consideration in the present case:
“321. …[W]e consider that an Australian court exercising family law jurisdiction in the twenty first century must take judicial notice of the fact that there are marked differences between indigenous and non-indigenous people relating to the concept of family. This is not to say that the practices and beliefs of indigenous people are uniform, since it is well known that they are not. However, it cannot ever be safely assumed that research findings based on studies of European/white Australian children apply with equal force to indigenous children, even those who may have been raised in an urban setting.
322. In our view, judicial officers dealing with cases involving an indigenous child should be expected to have a basic level of understanding of indigenous culture, at least to the extent that this can be found in what the Full Court in B and R (supra) called ‘readily accessible public information’. It should not be expected that parties must approach the court on the basis that the presiding judicial officer comes to the case with a ‘blank canvas’.
323. It is also to be expected, in our view, that judicial officers will be familiar with the reported decisions of the Full Court dealing with indigenous children, as well as the policy considerations that have informed the significant changes made to the legislation pertaining to indigenous children.
324. Accordingly, judicial officers should be aware of (or remind themselves of) the matters set out in the extracts below from the article by Professor John Dewar (former Chair of the Family Law Council) entitled ‘Indigenous Children and Family Law’ published in (1997) 19(2) Adelaide Law Review 217.
In defining kinship, or its conceptions of relationship, Australian family law reflects its Anglo‑European heritage. So, when it comes to constructing legal relationships around children, the law tends to assume a nuclear model: that is, that a child will have two parents for legal purposes, generally those who are its biological mother and father. These are the people who automatically have legal status with respect to the child, a status that they never technically lose. Thus, s61C of the Family Law Act 1975 (Cth) states that each parent of a child has parental responsibility for it, and that this responsibility survives any changes in the relationship between the parents. “Parental responsibility” for the child includes all duties, powers, responsibilities and authority a parent might have in relation to a child. The recent changes to the Family Law Act, which introduced the concept of shared and continuing parental responsibility between biological parents, have, if anything, served further to entrench this nuclear model in the law. Thus, according to the principles underlying the new Part VII, contained in s60B, children have a right to know and be cared for by both their parents, but not by other significant figures in their lives; and parents (but not others) share duties and responsibilities for the care, welfare and development of their children, and should agree about their children’s future.
…
Other departures from the nuclear model can be found in the s68F(2) checklist, which requires a court to take account of a child’s relationships with persons other than its parents in making decisions about the child’s best interests. Thus, in addition to paragraph (f) already discussed, paragraph (b) refers to ‘the names of the relationship of the child with each of the child’s parents and with other persons’; paragraph (c)ii) refers to ‘the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from … any other child, or other person, with whom he or she has been living’; and paragraph (e), which talks of ‘the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs’. Finally, the statement of objects underlying Part VII talks of the child’s right of contact with parents and with others ‘significant to their care, welfare and development’. However, each of these provisions has to be seen as a qualification of, or as an exception to, a basically nuclear, two‑parent model of parent‑child relations.
In general, then, the Family Law Act and the child support regime enshrine particular assumptions about relationships between children and parents. While these may seem natural to many members of the dominant European culture, they become, in the context of Indigenous cultures, a serious barrier to the sort of increased flexibility to which the [Australian Law Reform Commission] refers. In the case of support obligations in particular, the current law amounts to a clear breach of the principle of substantive equality, stated to be a cornerstone of multiculturalism, in the sense that the current law ‘unintentionally acts to disadvantage certain groups of Australians’. Yet it is the supposed naturalness of these assumptions, and the powerful ideology of the nuclear family surrounding them, that renders them invisible to many. From the point of view of the Indigenous community in particular, this nuclear model doesn’t fit at all well with Indigenous child-rearing structures or practices.
…
Although practices vary between Indigenous groups, it seems generally true that conceptions of kinship and of good child‑raising practice are significantly different from the nuclear model. Kinship relations are constructed in different ways from Western kinship systems, with the term ‘mother’, for example, often being used to cover a much wider group of people than the biological mother. Kinship systems amongst many Indigenous groups are classificatory, which means that a much larger proportion of the social group, perhaps all members of the group, are accounted for in terms of kinship. Western kinship systems, by contrast, consist of a much narrower range of relations. As Bringing them Home says: ‘By privileging parents and relegating the rights of other family members, the Australian family law system conflicts with Aboriginal child‑rearing values’. In addition, child‑rearing practices often differ markedly: whereas non‑Indigenous culture tends to emphasise permanence and stability as positives for children, Indigenous culture sees movement of children, either geographically or between or within kinship groups, as beneficial. As Bringing them Home argues, ‘by privileging stability of residence, the system similarly entrenches a bias against Aboriginal practice of mobility of children amongst responsible adults and their households’.
325. It will be noted that Professor Dewar made reference to the publication Bringing them home (1997)…The Report (at page 486) contained the following observations and gave an illustration to explain why at least two indigenous groups prefer children to be raised by persons other than their biological parents:
The Family Court clearly has preferred the biological parent over a disputant extended family member in making custody (now residence) orders, although there is no presumption that that should be the case. Nevertheless, the Court, at least in reported cases, has yet to prefer an Indigenous child’s grandmother, for example, over the child’s natural, non‑Indigenous father or mother. Moreover, section 61C recognises only the parental responsibility of each of the biological parents and fails to recognise the child‑rearing obligations of others.
By privileging parents and relegating the rights of other family members, the Australian family law system conflicts with Aboriginal child‑rearing values. In Aboriginal societies child‑rearing responsibilities are shared.
[In Arnhem Land, NT and Mornington Island, Qld] it was the responsibility for an Aunt or Uncle to grow up the child of their sister or brother. It is a belief amongst Aboriginal people living in these areas that because an Aunty or an Uncle are not too emotionally involved with the child that they are able to make the best decisions for his education needs and the future role of the child in becoming a responsible member of the Aboriginal family group (Randall 1982 page 342).
326. There are many other well-known publications which, in retrospect, can be seen as drivers leading to the amendment of the Act in 2006. We will mention only one here since reference was made to its author in the proceedings below. It is also a publication which counsel for O’s sister now submits his Honour should have taken into account in arriving at his decision. It is of particular importance because of its focus on what the author argued were the Anglo‑European assumptions being made at the time by report writers when assessing indigenous families.
327. The article to which we refer is that of Mr Stephen Ralph, who at the time was the Director of Court Counselling in the Family Court of Australia in Darwin. He was also responsible for overseeing the Family Court’s Indigenous Family Liaison program. His article, entitled “The Best Interest of the Aboriginal Child in Family Law Proceedings”, was published in (1998) 12(2) Australian Journal of Family Law 140. The following are the extracts which seem to us to have particular relevance to the present proceedings (footnotes omitted):
Family assessment as employed generally by counsellors is stepped in the traditions of western psychology, with its emphasis upon the individual, and based upon modern Anglo‑European notions of social and family organisation. The prominence of psychological theory and clinical practice based upon the study of small family groups and individual needs runs counter, however, to an effective understanding of the collectivist nature of Aboriginal family life. Of particular concern is the possibility that counsellors who have limited knowledge or experience in working with Aboriginal families may produce reports that do not adequately address the issue of the child’s cultural identity and consequently the report may fail to attend to vital cultural issues affecting the child’s best interests. This possible deficit in cross‑cultural understanding is one of the issues that the court’s cultural awareness programme seeks to address both through the appointment of Aboriginal Family Consultants and through training of counsellors in this area.
In contrast to the counsellor’s view Aboriginal people are likely to argue that children have the ability to effectively attach themselves to many carers in the course of their ‘growing up’. In many indigenous cultures multiple, serial attachments are the norm and are not regarded as necessarily harmful to the child’s development and long‑term adjustment.
The fluid nature of Aboriginal child‑care arrangements and associated parenting practices was recently noted in an anthropologist’s report to the court regarding an Aboriginal child. The report stated:
It is not at all unusual for Aboriginal children to move freely, even frequently (between kin and community). These movements … are seen as important ways in which children acquire their understanding of the ways in which kinship and country relationships are lived out. They are thus not a sign of disruption as they might be interpreted by non‑Aboriginal people but are an important factor in socialising children.
The Aboriginal perspective is based upon a collectivist view of family and social life that sees responsibility for the growing up of children invested in many people. According to this view children come to trust in the capacity and commitment of a multitude of people to care for them and nurture them through childhood and into adulthood. By this means children come to take their place in Aboriginal society where responsibilities and obligation to family and kin are deeply rooted and pervasive.
From this perspective the disruption caused to a child’s primary attachment, for example, is out‑weighed by the benefits arising from the child’s exposure to a broader and deeper network of family and kin to whom the child will eventually form strong attachments. The implicit expectation is that children will grow up with maximum exposure to their heritage and take their place within Aboriginal society. From the stand‑point of a traditional Aboriginal family living in a rural or remote community this change would ensure the family’s spiritual and ceremonial obligations to the country would be maintained. In this setting cultural and family considerations are highly important in determining the child’s best interests. For Aboriginal people a desirable outcome of such deliberations is the preservation and promotion of Aboriginal culture, particularly its transmission to the next generation.
Consideration of the child’s best interests from an Aboriginal perspective is likely to be influenced by the broader consideration of how Aboriginal culture and family life is to be promoted. That is, individual and collective needs are interdependent and as such the needs of the individual child do not take precedence over the needs of the collective. For Aboriginal people, whose culture has been ravaged by colonisation and dispossession, the struggle to preserve and maintain cultural integrity is on‑going and of the utmost importance. In many instances this may mean that the interests of the individual or child may be a subordinate consideration to that of the best interest of the collective group. This viewpoint does not sit comfortably though beside the strict adherence of the Family Law Act to the paramount consideration of the child’s best interests.
…
330. The legislative response to these criticisms of the law and its application to indigenous families was the introduction of s 61F. We will not repeat the provision again; however, the Explanatory Memorandum bears repetition in light of the criticisms to which we have referred:
131. … The purpose of this provision is to ensure that the unique kinship obligations and child-rearing practices (such as the involvement of extended family) of Aboriginal and Torres Strait Islander culture are recognised by the court when making decisions about the parenting of an Aboriginal or Torres Strait Islander child. This provision is consistent with other amendments to facilitate greater involvement of extended family members in the lives of children.
331. In our view, this key provision was overlooked in the proceedings below. The report writer’s recommendations, whilst paying regard to the potential benefit to O of immersion in the father’s Torres Strait Islander culture, not only disregarded the Aboriginal culture of the maternal family but also proceeded on assumptions about the parent-child relationship which had not been demonstrated as having any application to indigenous children.
332. We accept that the Federal Magistrate was not assisted at trial by any cross-examination specifically directed to the cultural issues we have discussed. However, we have concluded that his Honour should have been aware of, and taken into account, the fact that the 2006 amendments were aimed at ensuring that cases involving indigenous children are no longer determined on the basis of automatic acceptance of ‘modern Anglo‑European notions of social and family organisation’. In our view, it should have been apparent that the report writer’s recommendations were firmly based on such notions, the writer having failed to take into account in any way the fact that O is an Aboriginal child.” [Emphasis in original]
Given the Full Court’s comments as to the matters which a Court considering parenting issues in relation to a child with Indigenous heritage must have regard, and given, particularly, the specific expertise that would be required of any expert assisting the Court in its determination, the Court is firmly of the view that the matter would benefit from a family report by a family consultant who is experienced in addressing Indigenous cultural issues.
This does not necessarily mean that the family consultant must be of Indigenous descent, but it stands to reason that such a heritage could only assist the family consultant in forming a useful view of the circumstances of the Indigenous party and the child’s extended family – and in conveying an accurate picture of this to the Court, together with any appropriate recommendations. There can be no suggestion that whether or not the family consultant is a person of Indigenous heritage would in any way impact on any approach that he or she may take to the mother and her family as any family consultant accredited under the Regulations or in the employ of the Court would have the necessary knowledge and skills needed to assist the Court in the usual fashion. The added benefit of an insight into Indigenous cultural issues (whether by experience or by personal heritage) would only serve to broaden the scope of the assistance that such an expert must necessarily be able to provide to the Court in the circumstances of the present case.
Whether a family report should be ordered at this early stage
Given my earlier comments, it is clear that the Court also shares the parties’ view that the early receipt of a family report may be beneficial. Consequently, I propose to make an Order to obtain a family report as part of this decision.
The Court also sees merit in such a report being completed by a suitably qualified family consultant who has expertise or understanding of issues relevant to a child of mixed Indigenous and non-Indigenous heritage. That said, the Court only proposes to make a recommendation to this effect to the Director of Child Dispute Services. It will be a matter for Child Dispute Services to choose a relevant consultant, in house or ‘Regulation 7’; and in particular to choose the consultant.
There will also be a request for that report to be obtained at the earliest opportunity. Consequently, that factor of who may actually be available to complete such a report within a relatively short time-frame may have a bearing on the decision of Child Dispute Services.
If such a report can indeed be obtained in the relative short-term, I propose that it should be received and considered before the Court hears any re-agitation of the residence issues, whether by way of a further interim hearing, or an expedited final hearing (if such were indeed possible).
Conclusion
Having considered the evidence and submissions in light of the structured discretion provided for in the Act, the Court has concluded that the following is in the best interests of [X]:
·firstly, that [X] should commence his schooling in the new year, 2013; and
·secondly, until further order, [X] should attend at [H] School.
The Court has also determined that a family report should be prepared, with a recommendation to the Director of Child Dispute Services that it be prepared, if possible, by a family consultant with appropriate expertise in assessing issues specific to a child of mixed Indigenous and non-Indigenous heritage and who may be able to conduct the necessary interviews and prepare the relevant report at the earliest opportunity.
When this decision is released, I will invite submissions from the parties as to when the Court should re-list the matter for further mention.
There will be Orders and Notations of the Court to reflect these reasons.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Monahan FM
Associate:
Date: 20 December 2012
0
1
0