Christie and Holden
[2013] FamCA 1009
FAMILY COURT OF AUSTRALIA
| CHRISTIE & HOLDEN | [2013] FamCA 1009 |
FAMILY LAW – CHILDREN – With whom a child lives – where competing applications by maternal and paternal grandmothers – where real risk of exposure to family violence in paternal grandmother’s care – where ordered the children live with maternal grandmother and spend time with paternal grandmother on school holidays – where previous travel difficulties considered - where maternal grandmother ordered sole parental responsibility for major long term issues of the children – where each grandmother ordered sole parental responsibility for attending to children’s cultural education whilst in their care.
| Family Law Act 1975 (Cth) s 4, 4AB, 60B(2), 60CA, 60CC, 61DA, 61F Tobin v Tobin (1999) 24 Fam LR 635 |
| APPLICANT: | Ms Christie |
| RESPONDENT: | Ms Holden |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Cope |
| FILE NUMBER: | CSC | 736 | of | 2009 |
| DATE DELIVERED: | 19 December 2013 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 19, 20 & 21 November 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Victoire |
| SOLICITOR FOR THE APPLICANT: | Sanderson & Parkes |
| COUNSEL FOR THE RESPONDENT: | Ms Lawrence |
| SOLICITOR FOR THE RESPONDENT: COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Sandra Sinclair Family Law Mr Worsley Cope Family Law |
Orders
PARENTAL RESPONSIBILITY
That Ms Christie (“the maternal grandmother”), shall have sole parental responsibility for the major long term issues of the children E Holden born … 2006 and J Holden born … 2007 (“the children”).
Each of the maternal grandmother and Ms Holden (“the paternal grandmother”) shall have sole parental responsibility for attending to the children’s cultural education and welfare whilst the children are in their care.
Other than in an emergency, the maternal grandmother shall notify the other grandmother and Mr H and Ms M (“the parents”) at least one month prior to making any significant decision about the following matters regarding the children:
(a)Any medical or health matters concerning the children;
(b)Any medical or health matters affecting either grandmother which may affect the ability of that grandmother to care for the children;
(c)Matters relating to the education of the children, including but not limited to, the choice of school;
(d)Disciplinary matters other than of a trivial nature;
(e)Generally any matters regarding the children with respect of which the other grandmother and parents should be informed or consulted with respect to having regards to the provisions of Part VII of the Family Law Act 1975.
The respective grandmothers shall be responsible for the daily care, welfare and development of the children when the children are in their care.
LIVING ARRANGEMENTS
Except as otherwise ordered, the children are to live with the maternal grandmother.
SPENDING TIME AND COMMUNICATIONS
The children are to spend time with and communicate with the paternal grandmother as agreed between the maternal grandmother and the paternal grandmother and if they fail to agree then as follows:
(a)During Christmas school holidays for 2013/2014 the paternal grandmother shall spend time with the children for the first half of the school holidays making the children available to be collected by the maternal grandmother by 5:00pm on Friday 3 January 2013.
(b)The paternal grandmother shall spend time with the children for the whole of the June/July school holidays in 2014, making the children available to be collected by the maternal grandmother by 5.00pm on the Friday immediately preceding the commencement of the third school term.
(c)The paternal grandmother shall spend time with the children for the second half of the 2014/2015 Christmas school holidays, making the children available to be collected by the maternal grandmother by 5.00pm on the date calculated to be mid-way (halfway) during that school holiday break.
(d)Thereafter, the time which the paternal grandmother shall spend with the children will alternate between that which is provided in orders 5 (b) and 5 (c) above in even years, and in odd years the paternal grandmother shall spend time with the children for the whole of the Easter school holidays, the whole of the September/October school holidays and the first half of the Christmas school holidays commencing in that odd numbered year.
(e)For the purpose of these Orders, school holidays shall be deemed to commence at 9.00am on the day after the school term and shall conclude at 5.00pm on the last Friday immediately preceding the return to school of the children for new term. Where applicable, the number of nights in each school holiday period is to be used to calculate one half of the school holiday period. If there are an uneven number of nights, the paternal grandmother shall retain the children for the additional night.
HANDOVERS
The paternal grandmother shall collect the children at the beginning of her time from Town R at a venue to be agreed upon as between the maternal grandmother and the paternal grandmother.
The maternal grandmother will collect the children from Cairns at a venue as agreed upon between the maternal grandmother and the paternal grandmother at the end of the paternal grandmother spending time with the children.
Both the maternal grandmother and the paternal grandmother will each be financially responsible for their obligations in collecting the children at the commencement of the contact period and the end of the contact period, as the case may be.
SPECIFIC TIME AND TELEPHONE COMMUNICATION
Each party is at liberty to communicate with the children by telephone between 6.00pm and 6.30pm on a Wednesday evening and between 7.00pm and 7.30pm on a Saturday evening when the children are not in their care. The grandmother who does not have the children in their care is to initiate the telephone call and the other grandmother is required to ensure that the telephone is switched on, fully charged and in credit such that the children are able to receive the call.
Each Grandmother is at liberty to telephone each of the children on their birthday (grandmother's) and the children’s' birthdays, if the children are not in their care and the other grandmother is required to ensure that on those days the telephone is switched on, fully charged and in credit such that the children are able to receive the call.
PARENTING RESPONSIBILITIES
Each grandmother shall respect the privacy of the other grandmother at all times and not attend the home of the other grandmother unless invited to do so by the other grandmother. Each grandmother is to spend time with the children to the exclusion of the other grandmother.
The maternal grandmother and the paternal grandmother shall keep each other informed at all times of their residential address, home telephone number and mobile telephone numbers and shall notify the other in writing or by text message of any change within 72 hours of the change.
Each grandmother shall keep the other grandmother informed of any injury or treatment relating to the children that requires medical attention as soon as practicable on the same day by telephone or text message AND FURTHER will provide to the other grandmother the name, address and telephone number of the medical provider so that the other grandmother may discuss with the medical provider the said children's condition and treatment at that grandmother's expense.
This Order shall be authority to the children's medical and allied health providers to release to either grandmother information and copies of documents requested about the treatment of the children, such provision to be at the cost of the requesting grandmother.
This Order shall be authority to any school or day care the children should attend to release to either grandmother upon request information and copies of documents such as school reports, progress reports, behavioural reports, IEPs, photographs and photograph order forms, such provision to be at the cost of the requesting grandmother.
During the time that the children are in the care of either grandmother, that grandmother shall:
(a)Respect the privacy of the other grandmother and not question the children about the personal life of the other grandmother;
(b)Speak of the other grandmother respectfully;
(c)Shall not denigrate the other grandmother or her family members in the presence or hearing of the children and shall remove the children forthwith should others denigrate the other grandmother and/or their family members in the presence or hearing of the children;
(d)Not be affected by illicit drugs nor consume illicit drugs;
(e)No be adversely affected by alcohol nor consume alcohol to above the legal limit to drive;
(f)Encourage the children to build meaningful relationships with the mother and father (the children’s parents).
SPECIFIC ISSUES
The process used for resolving disputes about the terms or operations of these Orders shall be as follows:
(a)The grandmothers shall attend at the Family Relationships centre by phone or in person to assist in resolving any dispute or reaching agreement about changes to be made;
(b)They shall pay the cost of the Family Dispute Resolution Practitioner equally;
(c)In the event they cannot attend at the Family Relationships Centre for mediation by phone or in person, then the paternal grandmother shall nominate three Practitioners and advise the maternal grandmother in writing about the details of their fees and availability;
(d)The maternal grandmother shall then choose one of the listed Practitioners within seven days of receipt of the list;
(e)If the maternal grandmother fails to choose, the paternal grandmother shall choose.
Other than in a case of emergency, the parties shall undertake the FDR process as set out above prior to filing court proceedings.
The Independent Children’s Lawyer be forthwith discharged.
Otherwise all outstanding applications are dismissed and the matter be removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Christie & Holden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: CSC 736 of 2009
| Ms Christie |
Applicant
And
| Ms Holden |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings relate to the parenting arrangements for two aboriginal children, E (born in 2006, and therefore presently seven years of age) and J (born in 2007 and therefore presently six years of age). Both children suffer from Foetal Alcohol Syndrome Disorder (“FAS”) which affects them each in different, but nonetheless significant ways.
Although when originally commenced the proceedings had the father of the two children as the applicant, and the mother as the respondent, for reasons which will become more apparent during the course of these reasons, both of those persons have ceased to have any active involvement in these proceedings, but rather the active parties are now Ms Holden, the children’s paternal grandmother, with whom the children presently live, and Ms Chrisite, their maternal grandmother, with whom they presently spend time.
In broad terms, the paternal grandmother seeks to maintain the extant regime of interim orders as final orders, so that the children would live with her at Community A in Far North Queensland, and spend time with the maternal grandmother at Town B in Central Queensland during school holidays. On the other hand, the maternal grandmother seeks a regime of orders which would see the children come to live with her at Town B, and spend time with the paternal grandmother at Community A during school holidays. The Independent Children’s Lawyer supports the regime of orders contended for by the maternal grandmother.
OUTCOME
For the reasons which follow, I have determined that there should be orders substantially in the terms sought by the maternal grandmother.
BACKGROUND FACTS
The paternal grandmother was born in 1961, and at the time of these reasons is 52 years of age. She was born in Cairns, but has spent all of her life living in the indigenous community of A. She had three children, the eldest of which, Mr H (born in 1981, and therefore presently 32 years of age) is the father of the children the subject of these proceedings. As will be seen, her youngest child, F (born in 1986, and therefore presently 27 years of age) is also relevant to these proceedings.
The maternal grandmother was born in 1964, and at the time of these reasons, is 48 years of age. Whilst the material does not enable me to determine where she was born, or indeed provide much of an insight into her early life, for the last 13 years she has lived in Town B. She has four children, only one of whom is immediately relevant to these proceedings, being Ms M, (born in 1985 and therefore presently 28 years of age) who is the mother of the children the subject of these proceedings.
For at least a substantial time Ms Christie and her four children lived with her parents in their home in Town B, albeit one household was located on the ground floor of the house, and the other household was located on the top level. Indeed it appears as though Ms Christie’s mother initially raised most, if not all, of Ms Christie’s children. In 1999, when Ms M was about 13, Ms Christie’s parents moved to Town U, together with Ms M and another of Ms Christie’s children. Some time later, Ms Christie’s parents and the two of Ms Christie’s children who were living with them, moved to Community C. On 1 November 2001, when Ms M was living in Town U, she gave birth to her first child, S (who is therefore presently 12 years of age). At the time, Ms Christie’s sister was visiting Community C. That sister contacted Ms Christie and advised her that Ms M was unable to take care of the child S. The maternal grandmother immediately said that if Ms M did not want to have the child, she would raise him. The child S first came into her care when he was about two weeks of age, and she has thereafter (albeit initially with the assistance of her partner) raised him, and he continues to live with her in Town B. For much of that time she was also living with her two youngest children T and L. When S joined the household T was 11 and L was eight. Neither of those children presently reside with the maternal grandmother
On a date which is unclear on the material before me, Ms M and Mr H met, probably in Community C, and formed a relationship. In about 2005, Ms M and Mr H moved to live at Community A. They lived with the paternal grandmother for a total of about three years. During that period, in early 2006 Ms M gave birth to the child E. The maternal grandmother says that from the outset, she was largely responsible for caring for E. Her evidence is that Ms M spent much of her time drinking and would often be drunk. It appears as though there was tension between Ms M and the paternal grandmother.
Some time after E’s birth, Ms M took her to live at Community D without Mr H. Later she went to Town O, and whilst there, in mid-2007, gave birth to the child J. About a week later Mr H travelled to Town O to see Ms M and the children, seemingly in consequence of which Ms M returned to Community A where she again lived with the paternal grandmother and Mr H.
The paternal grandmother recalls that Ms M was drinking even more after J’s birth. She would go out a lot, especially at night. In addition to drinking, she was also smoking tobacco and marijuana. The paternal grandmother says in consequence she was the one really looking after the children.
In 2008 Ms M and Mr H went to Brisbane. Whilst there, Mr H was made an inpatient at a mental health facility. Whilst he was hospitalised, Ms M went to live (it appears) in Community C. In January 2009, the maternal grandmother travelled to Community C. During that visit, she spoke with Ms M, who asked her to take care of the children while she attempted to sort her life out. The maternal grandmother agreed, and returned to town B with the children E and J. They then lived with her and S (and likely one or both of T and L) for the next 18 months, until they were removed from her care by Mr H, who arrived without warning and accompanied by police, to execute a recovery order which had been made, without the maternal grandmother’s knowledge, by the Federal Magistrates Court.
Subsequent to J’s birth, Ms M has given birth to another three children. All three children are presently in State care, and apparently live together in a foster home in the Central Queensland region.
The father had commenced these proceedings at a time when he did not know even the location of the children. In consequence of the execution of the recovery order, the children came to live with him, albeit it is now clear that in reality they were thereafter under the care of the paternal grandmother. At the time that the recovery order was made, it does not appear that the Court was made aware either that the children were living with their sibling S, or that the father had serious mental health problems which required him to be heavily medicated, and substantially impaired his capacity to care for the children. Both of those matters would have been highly relevant to the exercise of the discretion as to whether or not to issue a Recovery Order. Moreover, it seems unlikely that the Court was appraised that in fact the real carer of the children was to be the paternal grandmother.
Later, both Ms Christie and Ms Holden became parties to these proceedings, and an Independent Children’s Lawyer was appointed. On 20 April 2011, there was a Consent Order made pursuant to which, amongst other things, the children were to spend time with Ms M and the maternal grandmother. On 14 June 2011, the Court heard competing proposals between the two grandmothers for interim parenting orders, and determined to leave the children living at Community A, although the interim order provided that they live with the paternal grandmother rather than Mr H. The orders also provided for the children to spend time with the maternal grandmother at Town B during school holidays, and continued the previous orders in relation to communication. Although I will discuss the working of those arrangements in greater detail later, for present purposes it is sufficient to say that, by and large, the orders relating to the children spending holiday time with the maternal grandmother have worked, but the orders in relation to telephone contact have not.
Shortly after those interim orders were made, the maternal grandmother was diagnosed as suffering from a form of cancer. That led to her hospitalisation in Brisbane, in consequence of which she was not able to have the children spend some of the Court ordered holiday time with her. Fortunately, the medical assistance which she received in relation to the cancer has now seen it go into remission, and her prognosis is good.
As at the date of trial, the children remain living with the paternal grandmother at Community A, and the maternal grandmother remains living at Town B with the child S.
THE PARTIES’ PROPOSALS
The paternal grandmother seeks orders which, in effect, maintain the current arrangements. Specifically she seeks orders that she have sole parental responsibility for the children (save for specific cultural matters, which I shall address in due course in detail) and that they spend time with the maternal grandmother for one half of all school holidays. The orders which the maternal grandmother seeks are not the precise opposite of those sought by Ms Holden in that, while she seeks sole parental responsibility, and that the children live with her, she seeks orders that the children spend time with the paternal grandmother for one half of the Christmas school holidays, but for all, rather than half, of some of the other school holidays. The regime which she argues for would, in even numbered years, see the children spending all of the June and July school holidays with the paternal grandmother, but in odd numbered years it would instead be the Easter and September and October school holidays which they would spend with her. Both seek orders in relation to telephone communication between the children and the other grandmother.
The Independent Children’s Lawyer supported the orders sought by the maternal grandmother.
This is probably the appropriate place to record an interesting – and encouraging – matter, namely that both grandmothers are able to effectively communicate with each other, and there is no real hostility between them. Indeed, perhaps a little surprisingly, it emerged during the evidence that not only were they regularly and amicably speaking to each other during breaks in the trial, but on at least one occasion, they shared a motor vehicle journey from Court back to the suburb where each of them were staying for the evening. I observe that such a relationship augers well for the future, whatever the outcome of these proceedings.
It is also convenient at this juncture to observe that there were no substantial matters of primary fact – as distinct from the conclusions which could be drawn from those facts – in dispute between the parties. To the extent that there was any conflict, it related to the likelihood that the paternal grandmother continued to consume alcohol, and/or have large gatherings at her home. Therefore largely the trial proceeded as an evaluation of the competing proposals of the parties, rather than a competition between competing factual versions.
THE ISSUES
The parties identified that there were a number of issues which stood to substantially determine which of the competing proposals was in the best interests of the children. These included:
·The cultural needs of the children;
·The extent to which the children may have been in the past exposed to domestic violence, and the prospect of them being exposed to it in the future.
·Each grandmother’s use of alcohol, and the prospect that the children may be exposed to situations where others around them are under the influence of either alcohol or drugs;
·The children’s specific health needs, and the best means of addressing them;
·The children’s educational needs, and the best means of addressing them;
·The impact, if any, of the mental health issues of Mr H;
·Whether in the past the children have been subject to neglect whilst in the care of either of the grandmothers, and the extent to which that presents as a risk in the future;
·The potential consequences of any continued separation of the children from their sibling S, and the desirability of promoting a relationship between the children, S, and their three other siblings presently in State care.
I agree that these are the substantial issues which will likely determine where the best interests of these children lie. I will however, rather than discuss them discretely, deal with them where they arise in my consideration of the s.60CC factors, to which I shall shortly turn.
THE LAW
A convenient starting point is s 61DA of the Family Law Act, which by sub-section (1), provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, s 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.
It will be immediately appreciated that these provisions are something of an awkward fit to this case. Neither of the actively engaged parties seek any order vesting parental responsibility with either parent, nor that the children live with either parent. Further, neither of the grandmothers is a parent for the purposes of the Family Law Act: see Tobin v Tobin (1999) 24 FamLR 635, and the subsequent discussion of Murphy J in Nineth v Nineth (No.2) [2010] FamCA 1144 at [51]-[54].
Many of the factors listed in s 60CC relevant to determining where the best interests of a child may lie, refer specifically to parents. Moreover, the objects of Part VII of the Act also specifically refer to parents. No doubt this is in part because the vast bulk of parenting cases, both in this Court and in the Federal Circuit Court, involve parents as active protagonists in the litigation. However, even in cases which do not have the parents as active protagonists, the objects of the Act, and the s 60CC considerations which refer to parents, still have a role to play. I can identify at least two ways in which those objects and considerations remain relevant: firstly, the Court must consider those objects and considerations even if they are not consistent with the respective cases advanced before the Court; secondly, to the extent that those considerations require the Court to consider the competing attributes and proposals of parents’ cases, necessarily they should cause the Court to undertake a similar exercise by reference to similar matters, albeit between the parties actively engaged in the litigation and their proposals. Whilst as discussed by the Full Court in Donnell & Dovey (2010) FLC 93-428 at [99] that might usually be best undertaken by reference to s 60CC(3)(m), on a practical level in this case, it will be convenient to, where appropriate, do so by specific reference to the individual considerations pertaining to parents under s 60CC.
The Family Law Act contains a number of provisions which deal specifically with aboriginal or Torres Strait Islander children. Relevant to this case, I identify those as being specifically s 60B(2)(e), s 60B(3), s 60CC(3)(h), s 60CC(6) and s 61F. It is unnecessary to set out the full text of all of those provisions in this case, however it is convenient to refer specifically to the latter two provisions, which are as follows:
s 60CC(6) 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
(ii) to develop a positive appreciation of that culture.
s 61F Application to Aboriginal or Torres Strait Islander children
In:
(a) applying this Part to the circumstances of an Aboriginal or Torres Strait Islander child; or
(b) identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;
the court must have regard to any kinship obligations, and child‑rearing practices, of the child’s Aboriginal or Torres Strait Islander culture.
As to the latter provision, in Donnell & Dovey (supra), the Full Court said at [183]-[184] as follows:
183. It will be seen that s 61F, in the form ultimately enacted, applies to all cases involving an Aboriginal or Torres Strait Islander child. In proceedings under Part VII relating to such a child, the court must have regard to the child-rearing practices of the relevant Aboriginal or Torres Strait Islander culture. Failure to take account of that provision would, in our view, ordinarily amount to appealable error. (For an illustration of a case in which s 61F was properly treated as an “integral” part of the decision making process see the judgment of Young J in Davis v Davis (2008) 38 Fam LR 671.)
184. Section 61F does not say that the outcome will be determined by application of the relevant kinship obligations and child-rearing practices, but the court must have regard to them. In our view, this can only be seen to be done if findings are made regarding those obligations/practices and adequate reasons are given to explain why a decision has been made that either follows or departs from them. We accept this can be done without the court making express reference to s 61F, but we consider it would be desirable that the section is at least mentioned, if not discussed.
The Court continued at [187]-[188] as follows:
187. A rigid interpretation of s 61F may have suggested that the adjournment option was to be preferred. On the face of the section, it is mandatory for the court to have regard to the relevant indigenous child-rearing practice in every case involving a child of Aboriginal or Torres Strait Islander background. If there is no evidence, or there is a lacuna in the evidence, the court cannot fully comply with the obligation imposed by the statute.
188. However, such a strict interpretation of s 61F would be unrealistic. In many cases there will be no evidence at all of the relevant custom or practice. This may be because there is no acceptable evidence available to establish the custom or practice. Alternatively, there may be no evidence because no party asserts it to be of any relevance. For example, the child may have been brought up in a family where all meaningful attachment to indigenous culture has been lost.
In this context it is also pertinent to refer to an aspect of the decision of the earlier Full Court in Re CP (1997) 21 Fam LR 486 at 502. Whilst I accept that the following passage is not a statement of principle or law, but rather a recital of part of the relevant evidence in that case, it may be taken as fairly representing an accepted position of general application in many of the cases in this Court involving aboriginal children. There the Court said as follows:
We have already set out his Honour’s precis of the evidence given by Dr M, which he correctly noted was unchallenged. Yet we do not consider that what his Honour recorded of her evidence, which his Honour said he accepted, captured the views she expressed, notwithstanding the limited, or restricted, ambit of her brief. In particular, we do not consider that his Honour had sufficient regard to the following passages of Dr. M’s report:
... Children are born into a world of kin which is so vast they will probably be meeting new kin when they are old men and women. For an Aboriginal child, this network will become one of the two key ways in which their identity as a person is constructed. The other is through relations to country. Both are able to link the child to its ancestors and thus, by implication, to its descendants.''
(see Appeal Book page 244)
and—
Disadvantages of not bringing up an Aboriginal child within his or her own community of kin and within at least frequent visiting distance of country with which he or she is identified might include:
• the loss of relations with a vast range of kin who will perform a wide variety of roles associated with social relations, emotional and physical support, educative knowledge, economic interactions and spiritual training. This is as true of Aboriginal people from communities in `settled Australia' whose continuities of tradition have in certain cases been greatly disturbed by their colonial histories as well as those in more remote areas;
• loss of knowledge which stems from the social interactions mentioned above;
• ambiguities in or loss of identity with one's own kin and country, features I understand as essential to identity from an indigenous point of view, and which are much more specific to certain people and place than is the broader categorisation of `Aboriginal' used by the wider Australian society and which does not necessarily recognise the specificity of indigenous identity.''
We consider that these aspects of Dr M's evidence were of significance in highlighting the disadvantage for an Aboriginal child in not being brought up within their own community and further demonstrate the inter-connectedness between identity and belonging within the specific group to which that child was born, compared to a child's wider identity as ``Aboriginal''. To our mind, the whole thrust of his Honour's judgment demonstrates that he gave the specificity of this child's cultural heritage, and the impact on his future welfare if he were not brought up within it, insufficient weight and this is amplified by his failure to make any reference to the above portions of Dr M's unchallenged evidence in his summary of it.
SECTION 60 CC FACTORS
Introduction
I have previously identified in these reasons that, given that this is not a case of competing proposals between parents, or between a parent and a non-parent, then notwithstanding the guidance of the Full Court in Donnell & Dovey, I propose to consider pertinent s 60CC factors which refer to parents but which, in the context of litigation between two non-parents, nonetheless raise concepts which remain relevant as between those protagonists, and to make any relevant observation by reference to those specific primary or secondary considerations. In doing so, I do not overlook that this is not a case between parents – it is a case between non-parents.
That said, I will turn to consider the individual factors in this case.
S 60CC(1)(a): The benefit to the child of having a meaningful relationship with both of the child's parents
The mother does not appear to have any desire to establish or maintain a meaningful relationship with either of the children. The evidence does not permit me to reach any conclusions as to what, if any, benefit to the children a meaning relationship with their mother would bring. It appears as though the mother’s lifestyle has substance abuse and violence as recurrent features. To the extent that there is benefit to the children of having a meaningful relationship with the mother, it will only occur in the context of them either living with or spending time with the maternal grandmother. Logically, there will be a greater opportunity for that to occur if they are living with the maternal grandmother.
The father’s relationship with the children is described by Ms P, the Family Report writer in this case, as being more one of an older brother rather than a father. This, in part, is no doubt the product of a combination of his schizophrenia on the one hand, and the clozapine which he takes to control that condition on the other. The evidence shows that clozapine causes him to become drowsy in the afternoons, very lethargic of a night, and to sleep in of a morning.
In her report dated 27 March 2013, Ms P said:
103. Consistent with the previous assessment, the Writer has reservation about [the father’s] capacity to exercise both day to day and long term parental responsibility for [the children]. The Writer doubts if [the father] is capable of nurturing [the children] emotional, spiritual and intellectual development. Although [the children] refer to [the father] as “dada …”, the Writer is of the opinion that [the father’s] relationship with [the children] is more akin to brother than father.
No party challenged Ms P’s conclusion on this matter.
That said, it does appear as though the father interacts with the children in a caring way, albeit that on the occasion that the children were observed interacting with him and the paternal grandmother, the Family Report writer noted that he disengaged after approximately 20 minutes.
Therefore I conclude that the children would benefit from having a meaningful relationship with the father, but the benefit they obtain from it is unlikely to be that which one would ordinarily identify as being derived by a child from their parent. In any event, to the extent that there would be benefit to the children, that benefit is likely to be proportionate to the amount of time that they are able to spend with their father.
S 60CC(1)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
“Abuse” is defined in s.4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s.4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
In this case, neither party says that in either of the grandmother’s homes, there has been an assault or sexual assault of either of the children, or that they have been involved in a sexual activity, or that the children have been caused serious psychological harm, or been seriously neglected. In saying that, I do not overlook the fact that one of the matters explored by Ms P in some detail was the possibility that the father may have been sexually abusing one or both girls, arising from an utterance by the child E to the maternal grandmother of words to the effect “Daddy comes in at night to tickle me and then I open the fridge door to get the chicken.” However the issue – to the extent that it remained live by the time of trial – was not pressed. Not only was it not possible to identify that the reference to “opening the fridge door to get the chicken” had some sexual connotation, but given the effect of clozapine upon the father, the chances of him being active, and particularly, sexually aroused, at night, was accepted to be very, very slight.
It therefore follows that there is no relevant allegation of abuse. Likewise, there does not appear to be any suggestion that there is a need to protect the children from neglect in either of the grandmothers’ homes.
On the other hand there are clear allegations of family violence associated with the paternal grandmother’s home. That said, I should immediately make it plain that there is no allegation that the paternal grandmother, or indeed any members of her immediate family, have been the perpetrators of violence, but rather, on at least one occasion the paternal grandmother has been, in effect, forced to leave her own home by others who refused to leave it, and further, upon returning to the home the following morning, was struck with a bottle by one of the people who still in her home.
On another occasion a former partner of the paternal grandmother’s attended her home and sought to coerce her into letting him into the home, with a view to engaging in sexual intercourse. As a part of that episode, the former partner picked up the children’s cat and, whilst standing outside the window of the bedroom in which the paternal grandmother and the children had been sleeping, either threatened to, and simulated strangling it, so as to try to pressure the paternal grandmother into allowing him entry.
It will therefore be appreciated that there is no allegation of misconduct directed towards the paternal grandmother, but rather it is said that from time to time she has been the victim of family violence, as that term is broadly defined in the Act, and in the course of that, the children have been exposed to family violence.
There can be little doubt that an episode such as that involving the former partner’s unannounced night time visit to their home, would have been distressing for both girls. Whilst that appears to be an isolated event, it is plain that the paternal grandmother regards the prospect of recurrence as sufficiently high that she now takes precautions to try to minimise them occurring again. Particularly, her evidence was that her property can be used as a short-cut for people in the neighbourhood, in consequence of which of an evening she locks both her front and rear gates. Further, her evidence is that at about 6:30 or 7:00pm of an evening she locks her doors.
Precisely what the evening or night time environment in Community A neighbourhood is like is not clear on the evidence. The paternal grandmother conceded that it was not uncommon for there to be noisy, late parties at night, with music able to be heard around the neighbourhood. It is likely that there will be people consuming liquor, perhaps to the point of intoxication, at those events, and the prospect of other drugs being used. Given that there is 85 per cent unemployment at Community A, the necessity for most of the population being able to get up in time to go work of a morning may not be a consideration in undertaking night-time activities.
It seems plain that in the past there have been large parties at the paternal grandmother’s home, involving members of her family and other community members late into the night. The occasion on which the paternal grandmother was forced to leave her own house and assaulted the following morning upon her return, is but one illustration of such a gathering. I will consider this issue in greater detail a little later in these reasons, however for the time being it is sufficient to note that there was a concession by the grandmother that events such as those had occurred in the past, however her evidence was that since December 2012, she has reformed her ways and such events no longer occur.
On the evidence before me, there is no suggestion of any potential for exposure of the children to family violence (as that term is defined broadly in the Act) associated with the maternal grandmother’s home or neighbourhood.
S 60CC(3)(a): Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
The children are six and seven years old; any expression of their wishes would not be given any weight.
S 60CC(3)(b): The nature of the relationship of the child with:
each of the child's parents; and
other persons (including any grandparent or other relative of the child)
Turning firstly to the children’s relationship with their parents, I have already discussed the lack of any substantial relationship between the girls and their mother. Ms P said that she had the impression that the mother prioritised her adult relationships above her relationships with the girls. She further suggested that this prioritisation had in recent time seen her three younger children placed in State care.
As to the children’s relationship with their father, I have already identified that it is more in the nature of a sibling relationship than a parental one. However that is not to devalue the love which Mr H has for the children; for instance, albeit in the context of the now defunct allegation of sexual misconduct by him towards the child E, he said:
I love [E]; she is my first child, my pride and joy. I would protect the girls...
The next category of relationship is that between the girls and their grandmothers. Turning firstly to the maternal grandmother, as at the time of the Family Report of 27 March 2013, it was Ms P’s view that the girls had a stronger bond with the maternal grandmother than the paternal grandmother, albeit in cross-examination she conceded that in the intervening months, by virtue of having spent more time with the paternal grandmother, that situation may have changed.
The importance of bonding was explained by Ms P in terms that the better bonding that a child has, the greater will be their self-confidence, in consequence of which one can generally predict a better life outcome. She described that the bond was, in effect, a kick start in life which enabled a child to be more resilient than if they did not have the bond. She said that in the case of these children, given that they have FAS, the strength of the bond was important because children with that disorder are starting “behind the eight ball” and particularly benefit from a predictable environment.
Turning then to the paternal grandmother, presently she is the primary carer of the children, no doubt partly due to the uncontroversial lack of capacity on the part of the father to care for them. However in her affidavit filed 25 July 2013, she conceded that up until the end of 2012 she was having a hard time, partly because the girls could be very naughty sometimes, and partly because she was working hard for them, but that work did not seem to be being appreciated. Although she was not drinking in the house, she said that in consequence she “would take alcohol and go down to the river on the weekend.”
There is one other person who is relevant to this consideration, and that is the children’s sibling, the child S. In the Family Report of 27 March 2013, Ms P recorded that S said that he enjoyed the company of the children and he relayed their experiences at Christmas. He volunteered that he wanted the girls to live with him and the maternal grandmother. He further advised that he enjoys speaking on the telephone to the girls.
At para 106 of that report, Ms P concluded:
The writer notes the strong bond between [E], [J] and [S] has persisted despite limited physical interaction. The writer is of the opinion that this relationship needs to be given some weight when considering [E] and [J’s] future living arrangement.
I accept that evidence, and place weight upon it.
There is no evidence that the children have any present relationship with their three siblings in State care.
S 60CC(3)(c): The extent to which each of the child's parents has taken, or failed to take, the opportunity:
to participate in making decisions about major long-term issues in relation to the child; and
to spend time with the child; and
to communicate with the child
As previously discussed, the mother appears to have little attachment to the children, and little desire to nurture any relationship with them. In recent times, she has not been involved in decision making about them, and appears not have spent any recent time either with the children or communicating with them.
The same cannot be said for the father. He appears to have, no doubt by virtue of his mother’s assistance, been involved with the children to the extent which his illness and medicated state permits him. However as I have previously said, he does not have the capacity to care for the children, which role has been assumed by the paternal grandmother. Therefore he, it seems, has not been involved in any decision making in relation to them, but has spent time with the children and communicated with them by virtue of them living in the same home as he does.
S 60CC(3)(ca): The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
Plainly the mother has not in recent times maintained either of the children. It does not appear as though the father has maintained the children either, but he cannot be criticised for that as his finances are controlled by the Public Trustee, who apparently is of the view that, by virtue of the children being in the care of the paternal grandmother, no funds from the father should be made available for them.
S 60CC(3)(d): The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The children are already separated from their mother, and the continuation of that is not said to be likely to have any further effect upon them beyond that which they have already sustained.
The material does not really provide much insight as to the likely effect of the children being separated from their father. The impression one has from the totality of the material is that, although the children do refer to the father as “dada …”, it is not a relationship which one would normally identify as a father/daughter relationship. Therefore separation from the father does not appear to be likely to entail the effects which one would commonly identify as likely to ensue from separation from a parent.
As to separation from the paternal grandmother, it could be expected that there would be some distress experienced by the girls. However as Ms P identified, the environment to which they would be moving, in the event that they were to live with the maternal grandmother, is one which is well familiar to them, and would be conducive to their settling in. That said, Ms P also conceded that these are perhaps not so much children who adapt well, but rather children who thus far have managed to survive.
S 60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
There does not appear to be any realistic prospect that the children will, at least for the foreseeable future, be spending time with or communicating with their mother, because she does not seem to have an interest in doing so. The failure of her to do so does not appear to relate to any practical difficulty and expense.
On the other hand, if the children were not to live in the same house as the father, there is likely to be considerable practical difficulty and expense in them spending time with and communicating with him. If the children were living in Town B, then it is most likely that they would only get to spend time with the father during school holidays. The father does not drive or own a car. Neither of the grandmothers owns a car, or is licenced to drive one. The parties have in the past, when moving the children between Town B and Community A, utilised the train service, although that only runs relevantly from Cairns to Town R. It is still necessary to somehow or other get the children from Community A to Cairns, and then from Town R to Town B.
On the Community A to Cairns leg, it appears as though either family or community members are used to drive the relevant persons to the train. Things are a bit more haphazard in the travel between Town R and Town B. The last school holiday changeover is a good example of that. The children had been spending time with the maternal grandmother, and were booked on a train back to Cairns. The maternal grandmother had organised someone to drive her and the children to Town R, and had also organised a back-up driver in case that first driver was unavailable. Unfortunately however on the day in question, both had been drinking and hence the children were not able to get to Town R. The maternal grandmother then arranged another driver on another day, however on the day in question his car did not have sufficient petrol in the tank to get to Town R and back. In the end, the only way the children were able get back to the paternal grandmother’s was by her organising for someone she knew in Town R to drive the father from Town R to Town B to pick up the children.
Communication is a similar muddle, or at least it has been in the past, mostly either because the parties’ land line phones are unable to make calls (but only receive them) or, in the case of the maternal grandmother, because her land line connection was physically severed. Mobile phones in the past have not been much better – frequently it appears as though the relevant people run out of credit, or don’t answer their phones. It is said that both households now have access to a mobile phone which permits free calls between 6:00pm and 6:00am, and perhaps this will enable more effective communication, but one would have to entertain some serious doubt about that.
S 60CC(3)(f): The capacity of:
each of the child's parents; and
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
Introduction
This is one of the major considerations in this case, in part because of the extra difficulty associated with parenting the children by virtue of their FAS. This impacts in relation to the health and educational needs of the children, and consideration of those needs necessarily involves a comparison of the health and educational facilities available in Community A and Town B. However also relevant are the respective grandmothers’ insight into FAS and the children’s consequent needs.
Health and Medical
FAS is the result of alcohol crossing from the mother to the foetus in utero via the placenta. It is thought that the effect of alcohol upon the child depends upon the time in the pregnancy when the child is exposed to it, no doubt because the foetus develops in different ways at different times.
It seems plain that the mother has a long history of excessive alcohol consumption. It is conjectured by Ms P that in fact the mother’s eldest child, S, is also likely to be suffering from FAS, which appears to be consistent with his physical appearance and his learning difficulties.
The impact of FAS is said to include a restricted ability to associate consequences with events. It may also impair memory, and increases the risk of hyper-activity in infants. Often people who suffer from FAS have difficulty in formulating or transferring abstract concepts, and have poor problem solving skills because they do not advert to adverse consequences. It is said that FAS children frequently engage in parallel play, which is a phenomena where children may play together, but there is no chatting or interaction between them. It is said that in a later life, those who have suffered from FAS may show poor judgment.
On a physical level, FAS children are frequently of slight build, have a low birth weight, and fusion – where for instance toes are fused together – is common. Hearing impairment can also be associated with FAS.
As I have indicated, both of the children the subject of these proceedings have been diagnosed with FAS. The child J has been identified as requiring speech pathology; the child E has been identified as suffering from cognitive delay. It can readily be appreciated that this stands to significantly impact upon their appropriate educational strategies and likely outcomes. Fortunately, the first step in that process, namely their diagnosis, has now been achieved, albeit only after the children were, pursuant to the Recovery Order, returned to live in Community A. Whilst I will return to discuss Community A’s health facilities in due course, it appears as though, perhaps in consequence of the indigenous population at Community A, the health professionals there were more attuned to the prospect of FAS in children than were the health workers in Town B.
It does not appear as though either grandmother was conscious of any deficits in the children such as to cause them to seek medical assistance to alleviate them. This in turn appears to have caused both grandmothers, if not actually entertaining some scepticism about the diagnosis, to have limited insight and understanding in relation to it. Both the grandmothers were cross-examined by reference to their knowledge of FAS and its consequences and attendant challenges for these children. It is fair to say that neither of them were able to demonstrate much knowledge or insight, beyond recognising that, in broad terms, the children would have some difficulties. Moreover in the case of both grandmothers, I formed the view that they were largely reciting that which they had been told, rather than indicating any reflective consideration of the individual circumstances of the children.
Plainly it would be in both children’s best interests if, whoever they live with, has not merely an understanding of the general nature of FAS, but an understanding of the particular challenges which will confront these particular children. That is important, because as Ms P indicated, FAS is a spectrum disorder, and each child who is subject to it will have different needs and deficits.
Moreover, it will be important that the school and teachers of the children are made aware of the diagnosis, its consequences, and be conversant with means of attempting to tailor educational programs to the individual girl’s needs. In this regard, it may be the case that Community A has some greater familiarity with FAS children then does Town B.
Ms Pr in her report of 27 March 2013 said the following in relation to the children and FAS:
109.The writer doubts if [the father] and [the paternal grandmother] fully understand how FAS may affect a child’s intellectual and developmental ability. Consistent with the previous assessment, the writer is of the opinion that [the maternal grandmother] is more likely than [the father] and [the paternal grandmother] to provide [E] and [J] with an environment that is conducive to meeting their physical and emotional needs. The writer gained the impression although [the maternal grandmother] has made enquiries regarding FAS, she is yet to fully grasp how the syndrome effects [E’s] and [J’s] intellectual and developmental ability. The writer postulates, if [E] and [J] were to live with [the maternal grandmother], she would be better positioned to learn and implement strategies that may minimise the adverse effects of FAS.
110. From the writer’s perspective to maximise both [children’s] learning potential and to minimise the negative effects of FAS, it will be vital that they have a stable environment that reinforces predictability and consistency. From the writer’s perspective both [children] require a predictable framework in regards to their daily activities (breakfast, school, homework, recreational activities, dinner, reading and bedtime). Likewise [the children] will benefit from consistent behavioural expectations (that are age-appropriate) with predictable consequences for not adhering to expectations. For consistency, it would be beneficial for [the children] if some of the strategies that the teachers use were replicated within the home.
Based not only upon that material, but also the respective grandmothers’ demeanours both in the courtroom generally and whilst under cross-examination, I agree with Ms P’s assessment that the maternal grandmother is likely to better provide for the girls in this respect. I will later in these reasons address the paternal grandmother’s concessions that, prior to December 2012, she was having difficulty coping with the girls, and her assertions that since then, largely in consequence of giving up alcohol, her capacity to cope has improved. However at this stage it is suffice to say that, even accepting that the paternal grandmother’s coping may have improved over the last 11 months, she still appears to present behaviours that suggest that some ongoing stress, for instance her recourse to swearing and abrupt behaviours when dealing with the children’s health professionals.
However that is not the end of the matter. In order to obtain any benefit from their education, the children will obviously need to have substantial attendance at school. Up until the end of last year, it may safely be said that neither of the grandparents had a good history of ensuring school attendance of the child or children then in their care. On the maternal grandmother’s part, the school attendance of the child S was poor at best. There were likewise extensive absences from school or pre-prep by both E and J. This year however, the school attendances of the girls have improved, and although the attendance of S has improved slightly, it has not improved to the same extent of that of E and J.
Part of the reason for S’s continuing poor school attendance lies in the fact that there is no school bus between the maternal grandmother’s home and B State School, and as I had previously indicated, she neither drives nor has a motor vehicle. That presents a difficulty for S walking or skate boarding to school when it is raining, or on summer days, when apparently it can be very hot and sunny. Whilst it may be surprising that in the 21st century, an Australian rural town does not have a school bus for primary school children within the town boundaries, it appears as though one of the local indigenous elders, Mr N, who was a witness in this case, has much to his credit taken up the slack, and although 70 years of age, acts as something of a de facto bus driver – albeit using his private car – for some of the children attending B School.
Another difficulty in relation to the child S arises from the fact that he has been bullied at school. For a period the bully left school, but has now returned. The evidence suggests that S is of very slight build, and was said by Ms P to demonstrate effeminate characteristics. Perhaps that is part of the reason why he was being bullied, but it is unclear. Further, at least on two occasions this year, S has been suspended from school. One occasion related to him stealing an iPad; another occasion related to him striking another student. Perhaps it was the bully: the evidence does not allow me to conclude either way.
A further explanation might lie in the fact that S is on occasion late for school. The maternal grandmother said that the roll is taken at the beginning of the day, and if S turns up late, he is supposed to go to the office to have himself marked off on the roll, but does not do so.
Even if all the above are correct, it does not fill me with any conviction that, at least in relation to the child S, the maternal grandmother sees attendance at school as an absolute necessity. It appears to be seen by her as optional. Indeed, perhaps because of her difficulties in sourcing alternative carers for S, she withdrew him from school in order to attend the trial before me, which was conducted during the school term. Although in her evidence she said that on occasions when S was home from school, she would require him to continue to do school work from old books, no such arrangement had been made in relation to his withdrawal from school on this occasion.
All in all I am left with some lingering doubts as to the maternal grandmother’s ability to ensure that the children would attend school with the rigor needed not only to achieve education under normal circumstances, but particularly in light of their FAS.
The paternal grandmother has, at least in the last 12 months, achieved good school attendance by the children. Indeed it is said that the girls are enjoying school to the point where they are anxious to go to school as early as 7:15 in the morning. Further, in the material before me it is plain that the paternal grandmother involves herself in the school life and community. For instance there was a photograph of her attending the school for a tree planting day, and Ms P herself gave evidence that when she went for a walk with the paternal grandmother past the A State School, she engaged with staff members who were then present.
The paternal grandmother appears to place value on education. For instance, she arranged for her son F to attend a specialist indigenous school, rather than the A High School, and has a similar desire for both of the children the subject of these proceedings as well. However although her evidence was that she would assist the children with homework, it appears from subpoenaed material that there are occasions when the girls’ homework is not completed, and my impression of her is that she may have some difficulty, if not presently, then in the future, in assisting the girls with their homework.
Moreover, there was the somewhat disturbing evidence of Ms P that, when for the purposes of preparing the Family Report, she and an Indigenous Liaison Officer, Ms K, told the paternal grandmother of the existence and benefits of a forthcoming Community A school event, in which ways in which parents could assist their children to complete homework would be discussed, she expressed no interest in attending.
There was no dissent from any person who gave evidence before me from the proposition that education represents the key to maximising the opportunities which these children will have in their lives. Plainly that is so. Therefore a substantial factor for my consideration is the extent to which the grandmothers are likely to assist the children to achieve the best educational outcomes. However each of the grandmothers has strengths and weaknesses in this regard, as set out above. Upon balance, I think that each is approximately equal in their capacity to provide for the educational needs of these children.
Health needs
Whilst FAS may create some increased need for health assistance for the girls, for instance hearing issues, general health issues loom large in this case as well. It was effectively contended by each of the grandmothers that they had the better capacity to provide for the health needs of the children.
In this regard, the paternal grandmother has something of an advantage in that perhaps in part because of its relative close proximity to Cairns, there is an excellent health care regime which is available within the A community. This service includes a visiting paediatrician. Whilst Town B has a Community Health Centre which has, at least potentially, visits from time to time by medical specialists, it does seem as though Community A has more the ready access to a range of specialist services. Moreover, at Community A it appears as though there is a degree of integration between the school and health care, in that the school will facilitate children attending medical or similar appointments. The impression I have is that there is a more holistic approach to the meeting of children’s health needs in Community A than there is at Town B, perhaps in part because it is perceived that the need for such an approach is greater at Community A.
On occasions the maternal grandmother has made appointments with medical specialists, either for herself or for the children, at the nearest larger cities, being R or X. Both of these appear to have the usual range of medical services which one would expect in provincial cities. However accessing them is problematic, because of the maternal grandmother’s inability to drive, and the difficulty in sourcing alternative means of transport. Whilst there is apparently a bus that will take Town B residents to medical appointments, that may not be entirely suitable for school aged children.
There is a further consideration, and that is the extent to which, in the past, the maternal grandmother has failed to meet medical appointments for the children, and indeed herself. Plainly there have been some occasions when appointments have not been kept, albeit it may be that in the individual cases there was good reason for that.
However based on the material before me, I think that, in part because of the better institutional facilities in Community A, the paternal grandmother has a greater and better ability to provide for the medical, health and like needs of the children.
Emotional needs
Plainly both grandmothers love the children. Although Ms P did have the impression that the paternal grandmother’s motivation for having the children live with her, in part, and perhaps large part, stemmed from the Social Security benefits that would ensue, that was not pressed with any vigour before me. Indeed my impression of the paternal grandmother is that the children are very precious to her.
However whilst she appears to be actively involved in the girls lives, for instance taking them to the beach and going to other locations within the Community A district, their home life otherwise seems to largely involve other people calling by to the house from time to time, with the attendant interaction.
The evidence presents a different view of the maternal grandmother’s home and interaction with the girls. At para 72 to 75 she said as follows:
72. [The maternal grandmother] disclosed she no longer travels to [Community C] with [the child S]. She explained “I don’t wish to expose [S] to children walking around at night and children swearing.” [The maternal grandmother] digressed to say [E] and [J] had refrained from swearing until just before their return to Cairns. She said “the children know there is no swearing at my place; they were using the F and C words. I pulled them up. They know not to swear when with me.”
73. [The maternal grandmother] spoke of her nightly routine of sitting with [S], and the girls when with her “on the steps, in the cool.” She said while watching the possums emerging as darkness falls, she encourages the children to talk about their day. According to [the grandmother], “the girls say they watch TV, DVDs at night [at the [Holden] family home]. [The child E] said they watch paranormal movies.”
74. [The maternal grandmother] recalled “one afternoon, [the father] and [the paternal grandmother] rang; I gave the phone to the girls. [The child E] then fell asleep; she woke up screaming. She must have had a nightmare. [E] kept screaming. To calm her, I kept holding her. We sat together for a while.” [The maternal grandmother] acknowledged she was unable to ascertain from [E] what had prompted the screaming.
75. [The maternal grandmother] spoke of [E’s] liking “to be around adults” and the child’s tendency to “wake up in the middle of the night. The first night [at Ms [Christie’s] home], [the child] woke up at 2:00am. For couple of nights she woke up before she slept through.” [The child E] was described as a “light sleeper.”
I also had the benefit of seeing the maternal grandmother give her evidence in the witness box under cross-examination. She impressed me as a quietly spoken, gentle and respectful woman. That impression was supported by the evidence of two witnesses called by the maternal grandmother, Mr N and Ms Z. The former said at para 9(i) of his affidavit:
[The maternal grandmother] is a quietly spoken person. I have observed she speaks to her grandchildren in a pleasant way and I observe that [S] and [the grandmother] have a good relationship, both respecting each other.
The latter said at para 6(j) of her affidavit:
[The maternal grandmother] herself also gets involved in various indigenous activities in the community. She is a quiet unassuming lady, however she joins in with others and takes part and is well and truly a part of the indigenous community.
I do not think it disrespectful of the paternal grandmother to say that she did not present as having a similar character; in fact I think she would probably concede as much. It is plain that she has a colourful vocabulary, and seems to have little hesitation at using it, including in front of the children. She can also be confrontational in her dealings with others, including health professionals. During her cross-examination she became somewhat irate, and indicated that upon a particular adjournment being had, she was unlikely to thereafter return to the Court, although in fact she did return.
Ordinarily these idiosyncrasies of character may not have any relevance in proceedings such as this, however given the uncontested need for there to be structure and stability in the children’s lives, I think that the maternal grandmother presents as better able to achieve that, and better able to otherwise meet the emotional needs of the children.
Physical needs
There appear to be some slightly expressed concerns as to the ability of the paternal grandmother to meet the physical needs of the children: for instance in the Family Report there is recited an allegation that the children expressed surprise at the amount of food which was in the home of the maternal grandmother, compared to what they were familiar with. However upon balance I do not think that this is an issue in this case: for instance, even though the paternal grandmother has an arrangement whereby her Centrelink pension has a sum deducted from it to provide for school lunches for the children, she appears to provide them with additional food at school as well. Further, even if there be some material want within her home, it needs to be borne in mind that the Public Trustee appears to be somewhat parsimonious when it comes to making money available to one of the three adult occupants of her home.
On the other hand there is a more serious criticism levelled at the paternal grandmother relating to the physical environment of her home. Firstly, there is the sufficiency of the home itself. Whilst her home has five bedrooms, an issue at trial was the extent to which people other than the paternal grandmother’s immediate family occupied it. Whilst the paternal grandmother denied that anyone else slept over at the home, the girls disclosed to the Family Report writer – who drew a plan of the home including identities of the people the girls told her were sleeping in relevant rooms – that a large number of additional people stayed at the home. This disclosure to Ms P is consistent with what the children told the maternal grandmother during times spent with her. Ms P was concerned by the girls’ disclosures for two particular reasons: the first is that her interviews with them occurred after they had been spending time at their maternal grandmother’s, and hence the girls’ memories were not of immediately past events; secondly, and related to the first, is that FAS children have poor memory. Both of these combined to make it seem to her quite likely that the children were being honest in their reporting.
Based on the limited material before me I cannot conclude, on the balance of probabilities, that indeed the sleeping arrangements in the home involve a large number of other people staying, whether regularly or intermittently.
However that is not the end of the concerns related to this consideration. Until recently, the children have been sleeping with the paternal grandmother on a mattress in the front bedroom, albeit they now sleep on a bed. Further, it is clear that there are regular visitors to the home, or at least in the yard of the home. This in part may explain the evidence which causes me to conclude that the paternal grandmother is not a scrupulous house keeper. In the first Family Report compiled by Ms P dated 21 February 2011, at para 57 there was recounted a conversation between Ms P and the mother relating to the time when she used to live with the father in the paternal grandmother’s home, as follows:
I used to clean up; [the paternal grandmother] did not clean. It was a waste of time cleaning up, soon there would be another mess or big party. I slept at … place, come home to [used] plates stacked up. There were maggots in the kitchen. Always a dirty feeling. [The paternal grandmother] used the wash up rags [dish cloths] to wipe the floor and the floor broom to sweep up the kitchen bench. I’m sick to the stomach thinking about the germs at the house… People regularly camp [overnight] at the house; they come when drunk. Their family, it’s their house.
This is consistent with the observations of Ms P from her visit to the paternal grandmother’s home at Community A on 8 December 2010. She said:-
When conducting the home visit, the writer noted the surfaces of [the paternal grandmother’s] house were filthy, the walls required rather intensive scrubbing prior to painting…[1]
[1]Para.124.
Precisely what events may have caused the house to be in such a condition are not altogether clear. Ms P in her report of 21 February 2011 identified that the paternal grandmother and her family welcomed family and friends into their home, however she was concerned that that hospitality may be to the detriment of the girls. She further recorded that she had “gained the impression [that] [F’s] band may play their musical instruments during the day and late into the night. Such late activity may impede the girls’ ability to sleep. The writer is also concerned that people under the influence of alcohol and/or illicit substances visiting their house may pose a risk to [E] and [J’s] physical and psychological safety. The writer’s perception of [the paternal grandmother’s] home is similar to the [mother’s] recollection.
Ms P visited that home again on 30 May 2011, and in her second Family Report said:-
It was evident that prior to the writer’s arrival considerable effort had been made to clean the home of [the father] and [the paternal grandmother]. Certainly the floor and kitchen benches were clean. On the other hand, the walls remained encrusted with accumulated filth.[2]
[2]Para.27.
In her most recent report of 27 March 2013, which related to interviews held with the children on 14 January and 1 February 2011, Ms P noted at para 91, seemingly from information sourced from the interviews with the girls that:
Mention was made of the “big parties” that occur at the [Holden] home. The writer was informed that music was played and people came to their house.
There is some additional material to support the notion of extensive and loud activity at the paternal grandmother’s home. In the maternal grandmother’s affidavit filed 21 August 2012 she gave evidence of a conversation that she had had with Ms Y (described as “a good church-going Christian lady living in [Community A]”) who is said to have informed her about the paternal grandmother’s home by saying “I do not go over that way anymore because they are always drinking at that house.”
Ms Y was interviewed by Ms P in the course of preparing her report of 21 February 2011. At para 101 Ms P recorded:
Ms [Y] said there was often loud music coming from the [Holden] home, on some occasions it was obvious the music was due to a family gathering whereas on other occasions [F’s] band was practicing.
In the paternal grandmother’s affidavit filed 25 July 2013, there is an implied admission that there is some substance in the criticisms that have been levelled at her, or at least those occupying her home, in relation to noise and alcohol. Under the heading “rules in my household” at paras 24 to 35 she said as follows:
Rules in my household
24. There is no alcohol in my house anymore and nobody is allowed to bring grog there.
25. [F] goes to church now and he doesn’t drink any more.
26. [The father] did not drink and he doesn’t drink.
27. Last year I did struggle with my new responsibilities and there were times when I was drinking alcohol, although I didn’t drink it in the house. I would leave the girls with [the father] or my brother ... I go stressed and worried about everything and was worried that the girls would go and live with [the maternal grandmother]. I was also having a hard time for a while because the girls can be very naughty sometimes.
28. I went through a time when I felt angry and upset and I was working hard for the girls but I thought nobody could see it.
29. I had a turning point when I realized that if I did not pull myself together that things would work out bad for the girls and that I would lose them.
30. My brother does not drink alcohol or smoke at all and I never used to drink much before too. I would have an occasional drink but I was not a drunk. But I think I got really stressed and I saw that I had to stop drinking completely and to ban alcohol from my house. Alcohol didn’t used to be an issue in my house, because my daughter … doesn’t drink alcohol either.
31. I have not had a drink since Christmas 2012 when the girls came back into my care after spending some holidays with [the maternal grandmother]. It was while they were gone that I realized that I had to change my ways and to be more serious about raising the girls.
32. I still smoke cigarettes but I don’t smoke in the house.
33. None of my kids smoke.
34. Nobody in my house smokes yarndi (marijuana) in my house.
35. I have rules about bed times for the girls, they are usually in bed and lights out by 8:00pm. I also shut the front door when the girls go to bed because I don’t want people to come to the house after that.
This raises the prospect that I may not be being told the whole current picture of her physical environment at Community A, or at least that there may be the suppression of some uncomfortable detail. That is certainly open on the evidence because, in her earlier affidavit filed 14 November 2012, at para 51, when dealing with alcohol consumption she said:
Sometimes I would buy a six pack of cans of beer. You can only buy light beers in [Community A]. I don’t buy beer regularly. When I have my birthday or someone else in the family have a birthday I will have a few beers. I don’t drink in the house when the girls are home. Sometimes when the girls go away I have a beer at home. I have never been much of a drinker, even though my sisters are drinker.
Later at para 55 she said:
I am very strong with my sons now and I do not let them have loud music or parties at home because of the girls. The only parties I have are for the girls. We had a big birthday party at home for [the child J] this year.
These paragraphs are concerning because, when compared with the recited paragraphs from her affidavit of 25 July 2013, they tend to suggest that in that earlier affidavit there was a deliberate down playing of both the paternal grandmother’s alcohol consumption, and the parties at her home. Credibility looms as an important factor when one is being asked to accept that a person has permanently changed previously unsatisfactory behaviours, particularly when there is no independent corroboration of that change.
Concerns were raised by Ms P in her Family Report of 27 March 2013 to similar effect. At para 114 she said:
Although [the paternal grandmother] states she refrains from consuming alcohol, the writer senses [the grandmother] continues to consume alcohol nevertheless less frequently than previously.
I too share that suspicion, however it is somewhat allayed by the particular way the paternal grandmother gave her evidence relating to her claimed abstinence since December last year. Particularly her evidence was that she had not drunk anything for “eleven months.” I find that phrasing interesting, in that it is so specific that it must necessarily refer to a starting point of an identifiable date, or at least month. Were she attempting to mislead me, it is more likely that she would have said something along the lines of “a year” or “almost a year”, but she specifically seems to have a point of reference by which she calculates the time since she last excessively consumed alcohol. I think that tells in her favour.
Moreover her evidence was that her son F’s band no longer practices at her home, but practices at the local church. She herself seems to have taken up attending church as well.
Therefore I cannot conclude, on the balance of probabilities, that the unsatisfactory previous physical environment at the paternal grandmother’s house at Community A continues. That said however, it would have to be acknowledged that firstly, there is no corroboration of this change, and secondly, there remains clearly a very real risk that things may revert to the worrying situation that previously existed.
I was asked to make a Jones & Dunkel inference against the paternal grandmother based upon her failure to call either the father or F. Whilst it is true that their failure to give evidence was not explained, the inference which could be drawn is only that their evidence would not have assisted the paternal grandmother, not that it would have positively damaged her case. Whilst I do draw the inference requested, it does not take the matter any further than the conclusions I have reached above.
On the other hand the maternal grandmother’s home is not without some features that were the subject of Ms P’s criticism as well, for instance in relation to her observation of clutter on the floors. In her first report she said:-
Whilst [the maternal grandmother] had clutter on the bedroom and bathroom floor her house was significantly cleaner and tidier than [the paternal grandmother’s] home. Certainly her lounge and kitchen areas were exceptionally clean.[3]
[3]Para.132.
In her second report Ms P said:
Consistent with the previous report, on the day of the observation, [the maternal grandmother’s] home had clutter on the floor. From the writer’s perspective, there was more clutter than previously and there was evidence to suggest that [the grandmother] had attempted to sweep the floor (the task was unfinished). When this was raised with [the maternal grandmother], she pointed out her focus had been on maximising the children’s time together.[4]
[4]Para.29.
In the following paragraph, Ms P continued:
The writer noted [E] and [J’s] clothing was very clean. [The maternal grandmother] explained she had spent several hours cleaning the girls’ clothes.
Later at para 59 she concluded:
Subpoenaed material suggests [the maternal grandmother] is attentive to the children’s immediate health care needs. The writer has visited [the grandmother’s] home on two occasions: the house is adequately furnished for a family consisting of three children and an adult. In contrast [the paternal grandmother] and [the father’s] home is sparsely furnished. The writer is of the opinion that [the maternal grandmother] is more likely to provided [the children] with an environment that is conducive to meeting their physical and emotional needs…
It can therefore be seen that the maternal grandmother presents as being more likely to provide a clean and well-kept environment for the children to live in.
The issue of alcohol and drug use also arises in a consideration of the maternal grandmother. In her affidavit filed 21 August 2012 at para 37 and 38 she said as follows:
37. I say that I have never been a big drinker. However, since being diagnosed with cancer in 2011, I drink even less. I say that on three occasions only since June 2011, I have consumed alcohol and on each occasion [S] was not home, he was sleeping over at my Aunt’s place.
38. I admit that in the past I had the occasional smoke of marijuana. However, since being diagnosed with cancer in 2011, I have not once touched marijuana. I say that apart from not wanting to, I am too scared to drink alcohol and smoke marijuana due to my health problems. I am now on Warafin medication and do not know how drinking and smoking would affect my medication. I say that I do not smoke nor do I permit anybody to smoke inside my home. If visitors who smoke attend my home, they must smoke outside. Also, I do not allow alcohol to be consumed in my home nor do it permit swearing in my home.
I accept that evidence. Further, I think that the fact that she is prepared to concede to past alcohol and drug use is significant, particularly because in addition she called evidence from both Mr N and Ms Z to the effect that they did not regard her as a drinker, and in fact claimed never to have seen her drink.
In summary then, I am of the view and find that the maternal grandmother presents as likely to afford the children a better physical environment, both in terms of cleanliness, furnishings and equipment, and an atmosphere conducive to the needs of the children. I further conclude that there is much less risk associated with the maternal grandmother, both in terms of the children being exposed to her under the influence of liquor or illicit drugs, and of being exposed to others under the influence of liquor or illicit drugs.
Conclusion
Upon balance, the maternal grandmother presents as better able to meet the needs of the children. Whilst I have had regard to – as is necessary – the observations and reporting of those observations by Ms P, the conclusion which I have reached is made independently. That said, I note that it accords with the conclusion which she also drew at para 118 of her report of 27 March 2013 that “[The maternal grandmother] presents as better position to provide for [the children’s] physical, developmental and emotional needs.”
S 60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
I will consider this factor under sub-paragraph (h).
S 60CC(3)(h): If the child is an Aboriginal child or a Torres Strait Islander child:
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
the likely impact any proposed parenting order under this Part will have on that right
Both children are indigenous, however their parents are from different tribal backgrounds. The maternal grandmother is from a tribe which included Community A as part of its country. On the other hand, the paternal grandfather appears to have come from a tribe associated with Community C. The maternal grandmother appears to come from tribes associated with the Community C district, as did the maternal grandfather.
The evidence before me was to the effect that an indigenous child’s kin and country are derived from both sides of their family. This therefore means that their right to enjoy their culture encompasses the culture associated with both sides of their family.
The paternal grandmother lives on country. In her case, she emphasised that fact, and that therefore she is in a good position to be able to establish the children’s connection with that country, given that the connection is in part derived from living on country. In her case, she emphasised that at Community Y, traditional practices of food gathering and foods could be enjoyed by the children as part of their daily life. She particularly pointed to the consumption of turtle and dugong, which appears to be commonplace amongst the indigenous people at Community Y.
On the other hand, the maternal grandmother does not live on country, and seemingly has no intention of doing so in the future. However there was evidence that nonetheless she involves herself in the indigenous culture at Town B, including attending general indigenous community gatherings such as NAIDOC week. She gave evidence that, seemingly much to her surprise, at a recent gathering, the child S expressed interest in being involved in a corroboree, and dancing.
Amongst the witnesses called by the maternal grandmother was an aboriginal elder, Mr N. His evidence was that he has known the maternal grandmother and her parents and family basically all of his life, and described them as “a very good decent family.” At para 9(j) of his affidavit filed 14 September 2012 he said:
[The maternal grandmother] involves herself with the indigenous community. She and [S] attend different functions and camps that are held in a well-known to all members of the indigenous community.
Also called was Ms Z, another aboriginal elder in the B community. She is employed as an Outreach worker for the indigenous community. At para 6(i) and (j) of her affidavit she said as follows:
[The maternal grandmother] also promotes [S’s] attendances at indigenous community functions. He attends different camps and events that are on. [The maternal grandmother] always had the financial resources to pay for his trips and necessity for.
(j) [The maternal grandmother] herself also get involved in various indigenous activities in the community…and is well and truly a part of the indigenous community.
One of the witnesses called by the Independent Children’s Lawyer was a Mr V. He has an extensive history in education, training and employment in, amongst many places, the Town B district. The affidavit filed by him in these proceedings detailed extensive indigenous community activity within the B district, both Government sponsored and otherwise, and emphasised that within the indigenous community there is an established group of elders who feel responsibility for, and actively engage with, the passing on of indigenous cultural values to the young.
I am therefore confident that, were the children to live with the maternal grandmother, they would maintain contact with their culture.
On the other hand, it is plain that the maternal grandmother will not be able to impart to the children, other than in a general sense, the culture associated with the paternal side of their family, just as the same could be said of the paternal grandmother in relation to the maternal side of the children’s family. That is a responsibility of each of the relevant families, and is a matter to which I will return when considering the allocation of parental responsibility in this case.
S 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
As I have already made clear, the attitude to the children and to the responsibilities of parenthood demonstrated by the mother is poor. On the other hand, the father does not present in that light; rather whilst he has a good attitude in both respects, but by virtue of his schizophrenia, or more particularly the medication associated with its treatment, is unable to discharge the responsibilities which ordinarily would go with paternity.
Because, as I have already indicated, I am bound by authority which says that a parent for the purposes of the Act is the biological or adoptive parent, strictly speaking, this consideration does not compel me to consider the respective grandmothers’ attitude to the children, and their discharge of the duties and responsibilities that would ordinarily attach to parenthood. However it is convenient to nonetheless to consider those matters at this point.
Plainly, both grandmothers have a strong interest and love of the children. Both appear committed to their nourishment and nurture. Both appear, albeit subject to the qualifications I have already adverted to, anxious to assist them to progress educationally, and to access appropriate health requirements.
There was a suggestion in Ms P’s report in 2011 as to the paternal grandmother’s motivation in her then supporting the father’s application for the children to live with him. At para 126 she said:
The writer questions [the paternal grandmother’s] motivation in supporting [the father’s] application for the children to live with him. The writer notes as early as April 2010 [the grandmother] had expressed her intention to claim the Centrelink allowances payable in respect of [E] and [J]. The writer also notes [the grandmother] tends to accompany [the father] to the mental health clinic when he is seeking assistance from staff to request on his behalf, a release of funds from the Public Trustee.
Obviously there are financial implications for which ever grandmother has the children living with them. My impression of the paternal grandmother is that she would no doubt be aware of the financial consequences, and would not be adverse to them. On the other hand I think it is going too far to say that the primary basis for her motivation, whether in initially supporting the children living with the father, or alternatively in her current proposal that the children live with her, was or is a financial one. It was clear to me when she was giving her evidence, that she dearly loves the girls.
S 60CC(3)(j) Any family violence involving the child or a member of the child’s family
I have already discussed the relevant episodes of family violence and there is no further need to traverse them here.
S 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in proceedings for, the order;
any other relevant matter
A Family Violence Order does not apply.
S 60CC(3)(l) Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Clearly it would be preferable to make an order which is least likely to lead to the institution of further proceedings; I am of the view however that either outcome contended for the parties is equally likely, or more accurately unlikely, to lead to the institution of further proceedings.
S 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant
I cannot identify any other fact or circumstance that is relevant in this case.
SECTION 61F
Neither of the grandmothers presented any evidence as to any particular relevant custom or practice with regard to kinship obligations and child rearing practices of the children’s aboriginal culture, beyond the general observation that it was incumbent upon the relevant tribal group or groups on each side of the children’s parentage to provide them with cultural education and awareness.
The distinct impression I have, both from the evidence, and the way in which the parties dealt with this issue, was that there was no discernible difference between the kinship obligations and child rearing practices of the relevant tribal groups in question here.
To the extent that there was evidence, it was led by the Independent Children’s Lawyer from Mr V, who at para 14 of his affidavit filed 28 March 2013 said:
14. In some cases, children are supported by extended family. Because mainly the grandmothers care for the children they make sure that all needs are met physically, culturally and spiritually.
This is supported on the evidence by firstly, the circumstances in which the maternal grandmother’s children were, in part or in certain cases in whole, raised by her own parents, secondly by the fact that the maternal grandmother has, virtually from birth, raised the child S, and thirdly by the fact that both grandmothers have been the primary carers for the two children the subject of these proceedings for a large part of their lives.
The evidence does not suggest, nor was any submission advanced to the effect that, within aboriginal culture, one grandmother held some cultural priority over the other in terms of raising grandchildren. This is therefore not a case where I discerned any need to insist on any evidence being given about that point, or relevant to s 61F more generally.
PARENTAL RESPONSIBILITY
I have already remarked that the two remaining parties in this litigation have an amicable relationship, to the point where they were able to share a journey home after Court during the course of the trial. That said, their history of communication in the past has not been a good one. That is not to say that it has been acrimonious, but rather it has been largely been non-existent. To the extent that it has existed, it appears to have related principally to the changeover arrangements in relation to the children. So for instance, when one of the children broke their arm when in the care of the paternal grandmother, she did not contact the maternal grandmother to let her know. Likewise, the paternal grandmother did not – and apparently still has not – told the maternal grandmother of the fact that one of the children utilises a device intended to assist her hearing, or that one of the children was hospitalised after having ingested some of the father’s clozapine.
The paternal grandmother accepted in the witness box that if those things had occurred during the maternal grandmother’s care of the children, she would have wanted to be told of them. Perhaps the fact that the parties were in litigation in relation to the children was a disincentive to the paternal grandmother, but perhaps not.
I accept that in the past telephone communication has been difficult for the reasons previously identified, involving lack of credit on phones, or landlines either not functioning or allowing outgoing calls, and I am mindful that the parties now claim to be able to speak by a mobile phone between 6:00pm and 6:00am at no cost. However whilst the ability to communicate by telephone exits, I am not persuaded that it is likely to be readily used by the parties, and it is likely that the presently prevailing situation, where decisions are made without communication with, or input from, the other party, will continue. Therefore I am of the view that the only real workable solution in this case is for the party with whom the children reside to have the parental responsibility for the long term decision making in relation to them. It cannot be in the best interests of the children to have a regime of orders which are unlikely to be implemented or workable in practice.
However, as I have indicated earlier in these reasons, those decision making power should not extend to matters relating to indigenous cultural issues arising from the non-resident grandmother’s side of the family. Matters relating to those issues should be specifically reserved to the non-resident grandmother.
WITH WHOM SHOULD THE CHILDREN LIVE?
I identify that the following matters are points in favour of the children living with the paternal grandmother:
·Community A has a better suite of health services, and a holistic system more likely to see the children obtain benefit from those health services, than does Town B;
·If living with the paternal grandmother, the children would maximise their relationship with their father, noting that it is not apparently a typical father-child relationship;
·The paternal grandmother can assist the children’s cultural development, because Community A falls within her country;
·It would involve the least dislocation of the children’s established patterns and lives.
On the other hand the following disadvantages attend the children living with the paternal grandmother:
·The real risk that they will be exposed to family violence (in the broadest definition of that term, being violence directed towards a family member) or violence generally;
·The risk that the paternal grandmother’s home may return to the state that it was observed to be in by Ms P in 2011;
·The risk that the paternal grandmother may relapse to excessive use of alcohol.
·The risk that the paternal grandmother’s social arrangements may see her house hosting loud parties or gatherings, with attendant disruption to the children’s patterns and routines.
Turning then to the maternal grandmother, I identify the following matters as being in favour of the children living with her:
·The children have the better bond with her, which bond is important particularly because of their FAS;
·The children would be living with their sibling, S, and be more likely to have contact with their other three younger siblings;
·The maternal grandmother’s home is wholly free of violence and family violence;
·The maternal grandmother does not present as a risk of relapse into alcohol abuse, nor does her home present any risk of the children being exposed to alcohol or drug affected persons.
I identify the following as potential disadvantages of the children living with the maternal grandmother:
·The maternal grandmother may not insist upon the children’s substantial attendance at school;
·There will be some dislocation of the children’s lives consequent upon the change in not only who they are living with, but also where they are living;
·It would substantially reduce the time which they are able to spend with their father;
·It would substantially reduce their opportunity to develop a connection with the Community A country.
Weighing these matters sees the balance a very fine one, however it weighs in favour of the maternal grandmother. In that regard I am particularly influenced by the fact that the maternal grandmother’s home is wholly free of violence, any risk of alcohol and drug abuse, and is also the home of the children’s sibling S.
There will therefore be an Order that the children live with the maternal grandmother.
TIME SPENT WITH THE PATERNAL GRANDMOTHER
In the event that the children did not live with her, the paternal grandmother sought that the children spend time with her for one half of all school holidays. Her justification for that lay in her desire to see them as regularly as possible.
On the other hand, the maternal grandmother and the Independent Children’s Lawyer proposed that the children spend time with the paternal grandmother for half of the Christmas school holidays, but for all of the June/July school holidays in 2014 and every second year thereafter, and the whole of the Easter school holidays and September/October school holidays in 2015 and each alternate year thereafter.
The net effect of that regime would be that the children would spend slightly more time with their paternal family in odd numbered years than they would in even numbered years.
I think that this issue may be determined largely by a consideration of the desirability of minimising the amount of travel which the children will have to undertake. It seems that the children will need to travel between Cairns and Town R by train. In total, the journey between Community A and Town B takes the better part of 24 hours, and appears to, on occasion, span two days. Moreover, in the past, there have been problems with the vehicle connections associated with that travel. For instance, when the children last went to spend time with the maternal grandmother in Town B, the train from Cairns arrived in Town R at 2:00 in the morning. The paternal grandmother had been unable to obtain her usual accommodation, and the maternal grandmother did not arrive at Town R until 11:00am the following morning. There was therefore the highly undesirable situation where the children spent between 2:00 until 11:00 in the morning at the R Railway Station. Whilst I do not suggest that this mishap is likely to be indicative of the likely future prognosis for travel, it must be appreciated that minimising the opportunity for travel mishaps to occur is highly desirable in this case, in part because of the young ages of the children involved.
Whilst I appreciate that the paternal grandmother would wish to see the children as often as possible, there is also the advantage, on the orders proposed by the maternal grandmother and the Independent Children’s Lawyer, that she would get to spend much longer periods of time with the children, rather than the inevitably somewhat rushed week long visits during the mid-year school holidays. I think that in this case the quality of time is likely to be better if it is over longer periods of time.
For those reasons there will be orders that the children spend time with the paternal grandmother as sought by the Independent Children’s lawyer.
OTHER ORDERS
As I understand it, the other orders sought by the Independent Children’s Lawyer dealing with communication, parenting responsibilities and specific issues are not controversial, and I am satisfied that they are in the best interests of the children and should be made.
CONCLUSION
For these reasons there will be orders in the terms substantially proposed by the maternal grandmother as supported by the Independent Children’s Lawyer. To the extent that there are changes, they reflect the passage of time between the conclusion of the trial and the delivery of this judgment, particularly that the 2013 school year has now concluded, and the children are already on their Christmas school holidays.
I certify that the preceding one hundred and seventy four (174) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 19 December 2013
Associate:
Date: 19 December 2013
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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