Clovis & Huff
[2023] FedCFamC2F 1147
•29 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Clovis & Huff [2023] FedCFamC2F 1147
File number(s): CSC 1155 of 2020 Judgment of: JUDGE COPE Date of judgment: 29 November 2023 Catchwords: FAMILY LAW – parenting – Torres Strait Islander child rearing practices – whether a cultural adoption has occurred – whether the Court has the jurisdiction to make such a finding – whether interlocutory orders should be made legislative pathway for non-parents – whether the biological father is an unacceptable risk of harm – family violence and mental health issues – the biological father’s capacity to facilitate the child’s connection to the Torres Strait Islander culture – the biological father’s capacity to facilitate child’s connection to his cultural family – whether cultural parents are parents according to law. Legislation: Births, Deaths and Marriages Registration Act 1995 (NSW) s 28
Births, Deaths and Marriages Registration Act 2003 (Qld) s 17
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 60CG, 61DA, 61F, 65AA, 65D, 69VA
Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 (Qld) s 52
Status of Children Act 1978 (Qld) ss 10, 25, 26
Cases cited: Beck v Whitby (2012) 46 Fam LR 537
Blaze v Grady (2015) 54 Fam LR 172
Donnell & Dovey (2010) FLC 93-428
Fawkner & Kado [2020] FCCA 1535
Isles & Nelissen (2022) FLC 94-092
Ketchell & Zitha & Bon [2001] FamCA 950
Lamb v Shaw (2017) 57 Fam LR 543
Lara & Lara and Marley & Sharp (2004) FLC 93-186
M v M (1988) 166 CLR 69
Matthews and Anor & Matthews [2011] FamCA 982
Mazorski v Albright (2007) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461
Orav & Keskula [2022] FedCFamC2F 1114
Taylor and Barker (2007) FLC 93-345
The Honourable Alastair Nicholson, “The Law of Customary Adoption: A Comparison of Australian and Canadian Approaches to its Legal Recognition”, World Congress on Family Law and Children’s Rights, Halifax, Nova Scotia, Canada, 24 August 2009.
Division: Division 2 Family Law Number of paragraphs: 346 Date of hearing: 14 & 15 November 2022 and 24, 26, 27 & 28 April 2023 Place: Cairns Counsel for the Applicant: Mr Jacobs Solicitor for the Applicant: Keir Steele Waldon Lawyers Counsel for the First Respondent: Mrs Bassano Solicitor for the First Respondent: Lehmann Featherstone Counsel for the Second Respondent: Ms Lawrence Solicitor for the Second Respondent: Aboriginal & Torres Strait Islander Legal Service The Third Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Raeburn Solicitor for the Independent Children's Lawyer: Reaston Drummond Law ORDERS
CSC 1155 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CLOVIS
Applicant
AND: MS HUFF
First Respondent
MS WILCOX
Second Respondent
MR KELLER
Third Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
29 NOVEMBER 2023
NOTING THAT THE COURT HAS MADE FINDINGS THAT THE CHILD HAS BEEN GIVEN TO THE SECOND AND THIRD RESPONDENT IN ACCORDANCE WITH TORRES STRAIT ISLANDER CHILD REARING PRACTICES
THE COURT ORDERS THAT:
1.The cultural parents, Ms Wilcox and Mr Keller, will have equal shared parental responsibility for the child X born in 2019 (“the child”).
Live with
2.The child will live with the cultural parents as agreed between the cultural parents.
Spend time with
3.Noting that a finding has been made that the child has been culturally adopted in accordance with Torres Strait Islander child rearing practices, the child will spend no time with the applicant biological father, Mr Clovis until such time as the cultural parents deem it appropriate.
4.Until the child attains the age of 18 years, the applicant biological father is restrained by way of an injunction from:
(a)attempting to contact the child either directly or via a third party including at his school, on social media or at any events that the child may attend.
(b)approaching the child at any location including but not limited to his home, day-care, pre-school, school or extracurricular activities.
Change of name
5.The child shall be known by the name given to him by his cultural parents namely, X and will be henceforth known as X.
6.The cultural parents, Ms Wilcox and Mr Keller may apply to the relevant authority, without first obtaining the consent of the biological father and the biological mother, to change the name on the child’s birth certificate from X Clovis-Huff to X Wilcox-Keller born in 2019, and this Order provides such authority for the child’s name to be changed.
Passport
7.The second and third respondent cultural parents may apply for a passport for the child X Wilcox-Keller (also known as X Clovis-Huff) born in 2019 without first obtaining the consent of the biological father and the biological mother, and the passport is to issue notwithstanding that the biological father and biological mother have failed to sign all documents necessary to do so.
Procedural Orders
8.The Independent Children’s Lawyer be discharged thirty (30) days from the date of this Order, or in the event that an appeal is filed, at the conclusion of that appeal.
9.All outstanding applications be removed from the pending cases list.
NOTATIONS
A.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COPE
The applicant biological father seeks orders that the child, whose legal name is X (sic) Clovis-Huff born in 2019, live with him. The child is four years old and has spent no time with the applicant.
The issues for determination include whether the court can or should make a declaration that the child has been given by the first respondent biological mother to the second and third respondents in accordance with Torres Strait Islander child rearing practices, also known as cultural adoption, traditional adoption and Kupai Omasker. From that determination flows determinations regarding parental responsibility and the living arrangements for the child.
The biological father has another child, B. B is about 10 years old and lives with the father. The child the subject of these proceedings has had no contact with his sibling B.
The first respondent is the child’s biological mother. The biological mother has another child C who lives with her. C is about six years old.
The second respondent is the biological mother’s cousin, Ms Wilcox. On her evidence she is the child’s mother in accordance with Torres Strait Islander child rearing practices. She is also referred to as the cultural mother of the child.
The third respondent, Mr Keller, is the former partner of the second respondent. On his evidence he is the child’s father in accordance with Torres Strait Islander child rearing practices. He is also referred to as the cultural father of the child.
The second and third respondent separated in April 2020 and each has re-partnered. Neither of their current partners filed affidavits in these proceedings. The cultural father has a child with his current partner born in 2022. They live in Town D.
I shall at times refer to the second and third respondents as the cultural parents in line with Orders made on 19 April 2021 and the language used in the affidavits. I acknowledge, however, that the father was not privy to the giving and receiving of the child and argues that it was not done in accordance with Torres Strait Islander child rearing practices.
The biological mother and the cultural mother were both “grown up” by the same mother. So although not biologically sisters, they regard themselves as such in accordance with Torres Strait Island child rearing practices. The biological mother found out that her mother was not her birth mother at the age of 18 years.
The biological parents met in 2018 and separated in August 2018. The biological mother handed the child to the cultural mother three days after the child’s birth in accordance with what she terms a “traditional Torres Strait Island adoption arrangement to grow him up”.[1]
[1] Affidavit of Biological Mother dated 22 April 2021, paragraph 4
The biological parents later reconciled for a short time, and during that time they sought the return of the child to their care and the child’s birth was registered by them under a different name to that used by the cultural parents.
The child’s name
The child was born in 2019. His name on the hospital records is the name given to him by the second and third respondents, the cultural parents, being X Wilcox-Keller. Shortly after his birth the biological mother delivered the child into the care of the second and third respondents. Since then he has been known by them, their families and the child himself as X.
The birth certificate dated 2020 cites the child’s name as X (sic) Clovis-Huff. Under cross-examination the biological father gave evidence that the second name should be “X” and that he had not previously noticed the typographical error. Both of the biological parents are listed as informants on the birth certificate.
The how and why the child’s birth came to be registered some 16 months after his birth, by the biological parents who had never had the child in their care and under names that are very different to the names he is known by, is convoluted to say the least.
Past & current living arrangements
The respondent cultural parents lived with the second respondent’s parents, Ms E and Mr F, in Town G for the first year of the child’s life. I accept the evidence of the cultural parents that they were the primary carers of the child during that time and I accept the cultural father’s evidence that he did not work that year.
When the cultural parents separated in April 2020, the child continued to live with the cultural mother and her parents in Town G and spent weekends with the cultural father who moved to Town J. Town J is about an hour away from Town G by ferry.
Then from January 2021 until the end of that year the child lived with the cultural father on Town J. The cultural father was living with the cultural paternal grandparents and the cultural father’s partner.
From December 2021 to the time of the trial, the child has lived with the cultural maternal grandparents. They have been the child’s primary carers in that time.
In or about late 2021 the cultural mother moved from Town G to Town H for work. Since then her time with the child is limited by the tyranny of distance and the cost of travel, with Town H being about a day’s drive from Town G.
The cultural father now lives in Town D which means additional travel to spend time with the child. His evidence, which I accept, is that he sees the child when he travels to the towns for cultural events and that he “gives him everything my love that a father’s supposed to give him and spend all my time with him”.
The evidence is that there are fluid but apparently amicable arrangements that have the child maintain contact with his cultural parents and the extended cultural family.
The unchallenged evidence is that the biological mother has met the child and is known to him as an aunty.
Procedural history
The biological father commenced these proceedings on 24 December 2020. By that time the child had been living in the care of the cultural parents and the extended cultural family for almost two years. The father sought orders that the child immediately move into his care and have no contact with the biological mother or the cultural mother.
The matter first came before her Honour Judge Willis AM on 19 April 2021 at which time she made orders that the first respondent be known as the “first respondent biological mother” and the second respondent be known as the “second respondent cultural mother” (the third respondent was not a party to the proceedings at that time). An Independent Children’s Lawyer (“ICL”) was appointed and the first Family Report was ordered. Further procedural orders were made and a notation was added as follows:
A. … the interim Orders sought by the Father which would involve the Court removing the child from the cultural Mother (with whom he has lived since birth) and placing him with the Father (who has never met the child) are highly unlikely to be made given the emotional trauma that would be involved. It was suggested that the Application be amended taking account of the reality of the circumstances and facts.
By an Amended Initiating Application filed on 7 July 2021 the biological father sought interlocutory orders, including orders that he spend two hours with the child in City K on two days each month. The matter was subsequently listed for an interlocutory hearing on 15 February 2022. Leave was denied for the Family Report writer to be cross examined and on 3 February 2022 the father’s interlocutory application was dismissed by consent.
Orders were then made on 10 March 2022 listing the matter for a four day trial commencing on 14 November 2022 and also ordering the parties to attend at a court-based mediation. No agreement was reached at that mediation.
The trial commenced on 14 November 2022 however was adjourned on the second day on two grounds. Firstly the biological father’s evidence had raised the need for a psychiatric assessment and secondly the cultural father’s partner was in hospital. The trial continued on 24 April 2023.
This matter has been replete with twists and turns and surprises, leading at times to adjournment requests. It is a complex matter not only due to the issue of Torres Strait Islander child rearing practices, but also the number of other issues that have arisen throughout the matter and the trial itself.
Cultural identity of the parties
The Family Report writer explored the parties’ cultural backgrounds.
The applicant biological father advised the report writer that his background is European, and Country L. He is not a Torres Strait Islander or Aboriginal man however his evidence is that he has links to those communities and his son B is Aboriginal. He lives in City M.
The first respondent biological mother is a Torres Strait Islander woman. Her paternal family is from Town N and the maternal side is from Town O. She lives in City M.
The second respondent cultural mother identities as connected to the Region JJ Torres Strait Towns – in particular Town N. She lives in Town H.
The third respondent cultural father is of P and Q peoples, identifying connections to the Region R through Town S, Town Q and Town N. He currently lives with his partner and their child in Town D.
The child is biologically and culturally connected to all those peoples. He currently lives with the maternal cultural grandparents in Town G.
Torres Strait Islander Child Rearing Practice (also known as cultural adoption, traditional adoption and Kupai Omasker)
Torres Strait Islanders have long embraced a process whereby a child is given by the biological parents to others to raise as their own child. With a long history of community and interconnection, the peoples of the Torres Strait have a different and perhaps better concept of family.
Traditionally these courts have referred to this process as Kupai Omasker, Cultural Adoption and Traditional Adoption. The cultural expert in these proceedings, Ms U, indicated a preference to call the process “Torres Strait Islander child rearing practices” in order to distinguish it from the notion of western adoption.
It is important also to differentiate what this court is being asked to do from the process undertaken through the state legislation, Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 (Qld). That state legislation allows for a legal recognition of the Torres Strait Island child rearing practices, including the issue of a new birth certificate. That process will only proceed without the consent of all parties in limited circumstances which are defined in the legislation.
In short, Torres Strait Islander child rearing practices are where a child is given and received with love to be raised by people other than the birth parents, usually extended family members but sometimes close family friends, and to be recognised as the child of those receiving parents. The child is usually not told of the arrangement until they reach 18 years of age. I discussed the process in some detail in the case of Orav & Keskula [2022] FedCFamC2F 1114.
There is no one and only correct way for parties to engage in Torres Strait Islander child rearing practices. Cultural norms shift throughout the Torres Strait such that the islander regions vary in the criteria that distinguishes this practice from other arrangements. Further, modern technology has impacted traditions, particularly the time of telling a child of their origins, as very little remains secret in these days of social media.
As noted earlier, there is now state legislation which allows for legal recognition of this practice, being the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 (Qld). It was put to the cultural mother that once this legislation came into effect, an application could have been made through that channel. Her evidence was that it (that process) was not for her. In any event these proceedings were on foot before the legislation came into effect and therefore that option was no longer available.[2]
[2] Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 (Qld) came into force 1 July 2021.
The biological father submits that what has occurred in this case is not in line with Torres Strait Islander child rearing practices as he did not consent to the process, in fact he was unaware that it had occurred until after the event. He submits that the consent of both biological parents is necessary.
The first respondent biological mother and the second and third respondent cultural parents all submit that the giving and receiving of the child fulfils the criteria for Torres Strait Islander child rearing practices; that as the biological parents were separated it was a matter for the biological mother alone to decide. This is supported by the cultural grandparents and by the cultural expert in this case.
The biological father’s affidavit evidence is that the biological mother told him she had miscarried and he only knew of the birth after the event. His evidence is that he and the biological mother attempted reconciliation and that their final break up occurred in May 2020. He produces an email from the mother dated 12 June 2020 and a text dated 23 March (year not included but it is agreed to have most likely been 2020 due to the reference to Covid) to support his position that the mother was undecided about the process and regretted the giving of and sought the return of the child at that time.
Whilst the father disputes that the child was given and received in accordance with Torres Strait Islander child rearing practices, during cross-examination he stated that he would not stop the second respondent from seeing “her son” which was arguably an acknowledgement that a parental type relationship exists. On the other hand, he does not propose ongoing contact occur between the child and the cultural parents. His final position was that after the child has lived with him for six months all contact with the cultural mother cease.
How the child came into the care of the cultural parents
The unchallenged affidavit evidence of the cultural maternal grandmother is that the biological mother approached her and proposed that she give the child to the second respondent. Her evidence is that she continued to discuss this with the mother throughout the pregnancy, that the cultural parents “considered” the mother’s proposal and that she “supported” their decision.[3] This is clear evidence of a consultation process within the family on the biological mother and cultural mother’s side.
[3] Affidavit of Ms E filed on 31 October 2022.
The unchallenged affidavit evidence of the paternal grandparents gives similar evidence of being consulted by the cultural parents prior to the giving and receiving of the child. Evidence is given of the role and responsibility of bringing the child into the family, that it was a “big decision” and that it was a “lifetime decision that would impact us, as a family”.[4]
[4] Affidavit of Mr V and Ms W filed on 2 November 2022.
The evidence of the cultural expert, who sat “on the mat” with the giving and receiving families, is that she was informed that the cultural parents underwent “cultural counselling” as to the responsibility they were taking on, the biological mother underwent similar counselling to double check that she had truly decided to “transfer the care of the child to the cultural parents”.
The evidence of the biological mother is that she had determined prior to the child’s birth that he would be culturally adopted. She had made enquiries of her sister, the cultural mother, but also her brother’s girlfriends’ sister who she referred to as her sister in law.
The child was born in Town T and the cultural parents were present for the birth. Hospital records reflect that the mother and the cultural parents were spoken to by the hospital staff about the proposed cultural adoption and the child was given to and left with the cultural parents shortly after his birth.
It is clear from text messages, which I will address in detail later, that the biological mother had doubts and regrets about the giving of the child. However at trial she was content that what had been done was in the best interests of the child and she was satisfied that it fulfilled the criteria for Torres Strait Islander child rearing practices.
The applicant biological father’s mental health
On the first day of trial on 14 November 2022, and prior to the ICL obtaining the psychiatric assessment, the biological father’s evidence was as follows:
(a)He had been diagnosed with a variety of mental health issues, including depression, anxiety, and other mental illnesses.
(b)By a mental illness, he meant that when he loses his temper he is not himself; that he becomes a different person.
(c)He had made long-term efforts to manage his mental health issues. He had done “everything” over the years including medication and counselling.
(d)He had engaged with Y Centre about six months prior to the trial, having enrolled for a 6 to 8 week one-on-one program, but had continued to attend on a weekly basis.
I have no reason to doubt the biological father’s evidence about his understanding of his diagnoses or his efforts to address them. That was evidence contrary to his own interest. He conceded that he had threatened self-harm on more than the two occasions referred to in the biological mother’s affidavit material and had attempted self-harm on one occasion when his grandmother died.
The biological father gave evidence of an abusive childhood and that the abuse caused him a lot of damage. He can see that. And he can see that he needs help. He wants to be a better man and he is to be commended for that. What was clear to me however is that he still has a lot of work ahead of him.
The psychiatric assessment was then obtained. In summary Dr Z was of the opinion that the father had complex post-traumatic stress disorder and a mental condition.
In his report Dr Z expressed the opinion that the biological father’s risk to self and others was deemed to be significantly increased but he was of the opinion that risk was mitigated by:
… the fact that he did not suffer from a severe and enduring mental health problem[5], he did not use alcohol or illicit drugs, he had regularly sought support when in distress, and had been engaging with such support on an ongoing basis especially [AA Service]. He had stable accommodation, he had a purpose in life, he had been trying to seek alternative qualification, and he had sought stable accommodation and had no financial concerns.[6]
[5] Clarified under cross-examination to mean that the father did not have diagnoses such as schizophrenia or bipolar disorder.
[6] Affidavit of Dr Z filed 6 March 2023, p.29.
Dr Z went on to say:
He did not appear to be a risk to his children, if anything from his history it appeared that he was extremely protective of his son [B]. Although he did not appear to be a direct risk to his children, his propensity for violence could lead to him getting into trouble with the justice system and hence jeopardising the care of his children.[7]
[7] Affidavit of Dr Z filed 6 March 2023 p.30.
This was an odd opinion indeed given that B has, on uncontested evidence, witnessed extreme verbal and physical violence perpetrated by his father and thus been placed at risk of physical and psychological or emotional harm.
Dr Z made a number of recommendations for the father’s treatment. I accept the biological father’s evidence that in the limited time since that report was released, he has taken steps to comply with those recommendations and to link into those treatments. That treatment had not commenced in the six weeks or so between the release of the report and the resumption of the trial was not surprising given the waiting list for most services.
At the continuation of the trial in April 2023 the biological father gave evidence as follows:
(a)That he had a long history of self-harming behaviours.
(b)That he had been unable to consistently address his mental health diagnoses through therapy or medication.
(c)That he had wanted to collect the child from the cultural parents and that he was told by the police that he could do so but that it would be at his own risk. However, he had thought that the biological mother’s family would fight him and that could cause problems for him. He acknowledged that it would also have been bad for the child but gave evidence that he was not thinking straight at the time and “just wanted my son back”.
As regards management of his mental health, the evidence is that he has never consistently applied himself to treatment or medication. He gave evidence of medication causing him to sleep, however instead of working with his treating mental health professionals to change his medication or vary the dosage he simply ceased using that medication.
Subpoenaed material also reflected inconsistent engagement with therapy and other support services. The exception appeared to be the course undertaken in the six months leading up to the trial, however that is not the treatment recommended by the single expert psychiatrist.
The applicant biological father’s anger issues
The biological father gave evidence that when he became angry he “puffed up like the hulk” but had difficulty explaining what this meant. He explained it by saying he puffed up, then walked away and calmed down.
It is clear that he has trouble managing his anger. This is demonstrated not only by his criminal history and the number of domestic violence orders, but also his own description of interactions with third persons, including his sister, and his struggles in the court room.
He gave evidence about the violent event with his sister in 2022 (with whom he and B were living at the time) as follows:
(a)That his sister got upset about something B had done, the father said he could not do it anymore and wanted to leave.
(b)His sister blocked the doorway to prevent him from leaving so he shoved her.
(c)She then bit him in the centre of his chest and he punched her in the jaw so that she would let go. When challenged about his conduct he said words to the effect "I’m not going to let her take a chunk out of my chest for nothing". He then said that it wasn’t a hard punch, just enough to get her to let go – as if that made it alright.
He seemed to think that because his son was not in the room, but was playing with his friends downstairs that he would not have been aware of these violent events, though he did say that his nephew was inside the house. This showed a troubling lack of insight in relation to the impact on both B and his nephew of seeing or hearing violence and seeing the aftermath, including injuries. It also shows a troubling anger response which was demonstrated through several examples where if the father if of the view that somebody has done wrong to him, or to his son, that any response he makes is justified.
The father was very open that he has issues with anger management. When asked about the event where he was tasered by the police, he said that he was fighting with his ex and that it was not a physical fight but he could not control his temper. He conceded that he would have presented as aggressive, that he would have puffed up like the hulk and that he would have said aggressive things. Nonetheless he felt that he was tasered because the two female police officers were “anti-male”. There is however no evidence that the officers’ response was anything other than appropriate in the circumstances described by the father.
The father gave evidence of a physical fight in about 2017 which involved a knife. This was in the context where a man had said to B “don’t be like your fucked-up father”. His evidence was that he gave his son to his mate, said words to the effect “I’ll be back to kill you” and went home to get a knife. He gave evidence that he returned but denied chasing the man with a knife. Instead he gave evidence that the man had chased him with a weapon and this man had “bull rushed” him. He said he had to protect his son. He seemed to have no insight that exposing his son to a violent assault was not protecting him.
He also gave evidence of another event approximately three years prior to the trial when he heard his son, B, scream. A third person advised him that B had punched his nuts so the person had smacked B in the face. His evidence was that he took B across the road, came back and “sorted it out” by putting the person in a neck hold. It appears that he sorted it out to such an extent that the person lost consciousness. His evidence was that the only thing that saved the man was his son screaming out to him. While waiting for the police this person had regained consciousness and he (the biological father) said he tried to get him to come out and fight again, that he didn’t care that the police were there, that he tried to “bull rush” this man and it took three of them to pull him off.
His evidence was that his son’s grandparents are the only people who calm him down.
Domestic violence orders
When asked about the five domestic violence orders in which he was named, the biological father was able to provide very little information. When asked if that was about five former partners, his evidence was that he could not recall; that he just recalled there were five orders.
His evidence was that he was always wrongly accused, even though he conceded that he had been violent towards the biological mother and that he had slapped her. His evidence was that the biological mother’s domestic violence application was a “whole bunch of lies” that he didn’t do anything that she said. He conceded however that he did not contest the contravene DVO charge, saying that he just wanted it over and done with.
PROPOSALS
The applicant biological father’s proposal
The biological father’s position has changed significantly since he initially filed in December 2020.
By an Amended Initiating Application filed on 7 July 2021 the applicant biological father sought interlocutory orders that he spend two hours with the child in City K on two days each month. He continued to seek final orders for sole parental responsibility and the child to live with him and spend time with the cultural parents from 10:00am to 3:00pm on two days each month and two hours on special occasions with changeovers at Town BB.
On 27 August 2021 a Further Amended Initiating Application was filed with the only change being that the handover location proposed was in City K.
By Third Further Amended Initiating Application filed on 23 March 2023 the father proposed final orders for a build-up of his time with the child, starting with supervised time of three hours over seven days each month, increasing to four hours, then six hours, then eight hours, and commencing overnight time in November 2023 – some seven months after the trial. On his proposal the child was to live with him permanently by mid-January 2024. Time for the cultural parents was limited to the cultural mother from 10:00am to 3:00pm twice a month and on special days.
Then at the commencement of the trial the biological father proposed interim orders only be made. In effect he sought to adjourn the trial, for interim orders to be made and the final hearing listed at some future date. The interim orders sought were in the following terms:
(a)A s 65L order for the child to be introduced to the father and have the interim orders explained to him by a court child expert, noting that the child was only four years old at that time;
(b)Supervised time to occur twice a month for a period of six months, alternating between Town G and City M;
(c)The father to do all acts and things to enrol in and complete seven different sets of courses and counselling; and
(d)The father undertake Dialectical Behaviour Therapy as recommended by the single expert psychiatrist.
When the trial continued the father sought interim orders but proposed final orders as a fall-back position. The proposal built on the proposal for interlocutory orders, with supervised time to be for 12 months, called the “transition period”, and the father to provide an undertaking not to refer to himself as the father or B as the child’s brother during that time. At the conclusion of the transition period, the father proposes that he have sole parental responsibility and the child live with him. He proposes that the child spend time with the cultural mother on two occasions per month from 10:00am to 3:00pm, communicate with her on request and spend time for two hours on special occasions. After that period of six months he proposes no further contact take place between the child and the cultural mother or indeed any part of the cultural family. He makes no proposal for time with the biological mother or the cultural father or cultural extended family.
The first respondent biological mother’s proposal
The biological mother seeks orders that the cultural parents have equal shared parental responsibility, the child live with the cultural parents as agreed between them, the child spend no time with the biological father until deemed appropriate by the cultural parents and the biological father be restrained by injunction from contacting the child directly or via a third party including at school, via social media or at any events, and that he also be restrained from approaching the child at school, day care or his residence.
Orders were proposed that the parents “may apply” for a cultural recognition order under the state legislation. It was conceded at trial that this court’s leave is not required for such an application.
Orders are also sought for the issue of a passport for the child and to facilitate a change of name without the need for the father’s consent.
The second respondent cultural mother’s proposal
The cultural mother seeks orders that the cultural parents have equal shared parental responsibility, the child live with her and spend time with the cultural father as agreed between the cultural parents or failing agreement on alternate weekends from Friday to Monday, and that the child spend time with the biological parents as agreed by the cultural parents and as appropriate pursuant to Torres Strait Islander child rearing practices.
Orders are also sought for the issue of a passport for the child and to facilitate change of name without the need for the biological father’s consent.
Again, Orders were proposed that the parents “may apply” for a Cultural Recognition Order under the state legislation. Again, it was conceded that this court’s leave is not required for such an application.
The third respondent cultural father’s proposal
This party was joined to the proceedings on 23 August 2021. He has never filed a Response but filed an affidavit in support of the second respondent on 27 May 2021. At the end of the trial he continued to support the child remaining with the cultural family, expressing a wish that the child live with him.
The Independent Children’s Lawyer’s Proposal
The ICL supports the orders sought by the first respondent biological mother.
THE ISSUES FOR DETERMINATION
The following issues are variously identified by the parties, the Family Report writer and the court as issues for determination which will assist the court to make the proper determination as to his future living and care arrangements:
(a)Did the biological father perpetrate family violence against the biological mother?
(b)Do the biological father’s mental health issues and/or family violence and/or anger management issues cause him to be a risk of unacceptable harm to the child?
(c)Does the biological father have the capacity to facilitate the child’s relationship with the biological mother and/or the cultural parents?
(d)What is the appropriate legislative pathway in the event that the court makes orders in favour of the cultural parents, noting that they are non-parents?
(e)Does this court have the power to make a finding that what took place is a cultural adoption in accordance with Torres Strait Islander child rearing practices?
(f)If so, was what occurred on this occasion a cultural adoption and does the court need to or is it appropriate to make such a finding?
Once those issues are determined, or it is determined that they are outside the scope of this court’s jurisdiction or not relevant to the determination, then the court will consider and determine:
(a)With whom the child should live;
(b)How much if any time the child should spend with the other parties;
(c)How much time the child should spend with his siblings, whether biological or traditionally adopted or simply viewed by the child as siblings;
(d)Parental responsibility; and
(e)Related child focused issues.
THE EVIDENCE
The parties, save for the cultural father, each filed Outline of Case documents.
The applicant biological father relied on the following material as listed in the Outline of Case document filed on 9 November 2022 as follows :
(a)Notice of child Abuse, Family Violence or Risk filed on 24 December 2020;
(b)Affidavit of himself filed on 24 October 2022;
(c)Second further Amended Initiating Application filed on 31 October 2022; and
(d)Affidavit of himself filed on 4 November 2022.
The first respondent biological mother relied on the following material as listed in the outline of case document filed on 8 November 2022 (not including the family reports and other expert evidence as those were read by the ICL) as follows:
(a)Response to application for final orders filed on 22 April 2021;
(b)Notice of Child Abuse, Family Violence or Risk filed on 22 April 2021;
(c)Affidavit of herself filed on 22 April 2021;
(d)Affidavit of herself filed on 8 November 2022.
The second respondent cultural mother relied on the following material as listed in the Outline of Case document filed on 7 November 2022 (not including the Family Reports and other expert evidence) as follows:
(a)Further Amended Response filed on 31 October 2022;
(b)Affidavit of herself filed on 31 October 2022;
(c)Notice of Child Abuse, Family Violence or Risk filed on 8 April 2021;
(d)Affidavit of herself filed on 8 April 2021.
The Independent Children’s Lawyer relied on the following material as listed in the Outline of Case document filed on 17 November 2022 as follows:
(a)Family Report of Ms CC filed on 8 September 2021;
(b)Updated Family Report of Ms CC filed on 24 October 2022;
(c)Affidavit of Ms U filed on 26 May 2022;
(d)Tender Bundle of ICL;
(e)Affidavit and Psychiatric Assessment by Dr Z filed on 6 March 2023; and
(f)Addendum Family Report of Ms CC dated 11 April 2023.
The following table outlines the documents tendered throughout the trial:
Exhibit No Description of Exhibit Tendered by: ICL1 ICL Tender Bundle ICL C1 Transcript from 14/11/2022 Court ICL 2 Updated Tender Bundle – tender bundle 2 ICL F1 Final Orders sought by Father Father Applicant RCM1 Text messages between Ms DD and Mr Clovis Cultural Mother RBM1 Town T Hospital and Health Services – information records Biological Mother RCM2 Text messages from Ms E on 15 September Cultural Mother
Where I have made statements of fact or expressed a view, those are to be read as findings. Where I have made findings, those findings are clear on the face of these reasons and have been made on the balance of probabilities as required by s 140 of the Evidence Act 1995 (Cth).
The Witnesses
The Applicant Biological Father
The biological father was in general an honest witness trying to give a good impression of himself. He conceded the existence of five family violence orders in which he was named as respondent, he conceded his criminal history including the breach of a family violence order and he conceded his mental health diagnoses and challenges.
He struggled however to concede that the family violence orders or the time that he was tasered by the police were justified, despite his concessions as to high levels of violence and puffing up like the hulk at times when he was angry. I formed the view that this was not an issue of honesty but reflected a lack of insight.
At times the biological father made sweeping statements which proved to be incorrect. For example that he never perpetrated family violence in the presence of his son B. Whilst he conceded ultimately that he had done so on two occasions, he clearly felt justified. His explanations were that someone had “bull rushed” him in one case and in the other case someone had slapped his son. It was clear from his evidence that any violent response to conduct that he perceived placed his son at risk of harm was, in his eyes, completely justified. Certainly he seemed to have no insight into the emotional or psychological harm that could be caused by a child viewing his father lose control and act in a violent and angry manner.
The biological father displayed some insight into the impact on the child in this case of a change in residence. He conceded that if removed from his current home and the cultural family, that the child would be upset, scared and worried. He conceded that the impact on the child would be long-term. However whilst he said the words he was quite casual in his presentation and demeanour, expressing that he would “wean” the child into it.
He conceded that what he wanted to achieve was not in the child’s best interests and would likely cause him harm, but proposed to press for that outcome in any event. He gave evidence that if not successful in this court then he would take it to a higher court.
What troubled me about the father was his violent nature, his lack of understanding as to the impact of his violent and angry behaviour on B, and potentially on the child in these proceedings if he lived with him. Further, whilst his evidence is that he has never been violent towards his child B, the teenage years are rapidly approaching and that brings a whole new set of challenges.
The First Respondent Biological Mother
I am satisfied that the biological mother was attempting to give a good account of herself. There were times that she contradicted herself in her evidence but she then conceded those changes.
She made a number of concessions, many to her own detriment, including:
(a)That she had lied to the biological father in text messages when she told him that she was not pregnant with his child;
(b)That she had been violent towards the biological father, that there was a family violence order made against her and that she had a violent side;
(c)That the police statement alleging the biological father had hit her with a weapon was incorrect, though she was adamant that he had assaulted her;
(d)That she was prepared to tell lies when it suited her;
(e)That she had considered giving the child to another family member, being her sister in law (in islander terms);
(f)That prior to the birth she had threatened to kill the child if the second respondent did not take him, though she said that she did not mean it;
(g)That she had been in a car driving past the biological father’s house but denied the alleged obscene hand gestures. She agreed that some of the other behaviour alleged to have been perpetrated by herself and leading to the current family violence order could have happened;
(h)That she had previously regretted the giving of the child and tried to get the child back;
(i)That at the biological father’s request she sent a text and an email in support of him becoming the child’s primary carer;
(j)That she understands the biological father’s anguish;
(k)That she had agreed to the registration of the child’s birth using a name other than that chosen by the cultural parents;
(l)That the decision to give the child in accordance with Torres Strait Islander child rearing practices was due to her anger with the father;
(m)That she did not know exactly where the child was living after she had given him to the cultural parents;
(n)That she had not obtained the biological father’s consent to give the child in this way; and
(o)That she and the biological father had got back together after the child had been given to the cultural parents.
I am satisfied that she genuinely believes that what has occurred is in accordance with Torres Strait Island child rearing practices. Her evidence was that the child was given with love, despite her anger with the biological father - that she did not just give the baby to anyone, that she had to look into it. Her evidence was that because they were separated at the time, island protocol did not require her to obtain the biological father’s approval.
Her evidence is that the child fits in well with his cultural family and loves it, that she now believes that she made the best decision and that she is now more content with that decision.
I accept her evidence about those matters.
The Second Respondent Cultural Mother
Since filing her trial affidavit the cultural mother has obtained employment in and intends to continue to live in Town H, whilst the child is currently living with her parents in Town G and has done so for the majority of his life.
I was satisfied that the cultural mother was a considered and child focussed witness. I accept her evidence.
Her intention is that the child move to live with her in Town H and that she share responsibility for him with her former partner, the cultural father.
She has re-partnered but is not living with that man as yet – though plans to do so in the future. She conceded an incident with her current partner where he threw small debris at the wheels of her car to prevent her leaving. The police records reflect that after a short period she returned and they talked calmly.[8]
[8] ICL Tender Bundle, pages 129-131.
She has not filed an affidavit from her current partner as neither she nor her partner wanted him to be involved. That means however the court is not in a position to independently assess any risk arising from her current partner. That said I accept her evidence that she is not at risk of harm from this man.
The Third Respondent Cultural Father
The cultural father is a Region EE man. English is his second language, as it is for all the respondents. He was assisted on the first day of trial by a support person. At the continuation of the trial he advised that he was content to proceed without that support.
His unchallenged affidavit evidence is that much thought was given over a number of months as to the decision to accept the child in accordance with Torres Strait Islander child rearing practice, including consultation with his parents.
Under cross-examination he was a thoughtful and persuasive witness. I accept his evidence.
Mr V & Ms W - The Cultural Paternal Grandparents
These witnesses were not required for cross-examination and as such their evidence is accepted unchallenged. That evidence confirms that consultation occurred prior to the child being given into the care of the cultural parents.
They give evidence about the child’s connection to their culture and extended family and that he has the comfort and knowledge of his place within that community.
Ms E - The Cultural Maternal Grandmother
This witness was not required for cross-examination and as such her evidence is accepted unchallenged. That evidence is of the biological mother proposing the child be given to her sister in accordance with Torres Strait Islander child rearing practices. She also gives unchallenged evidence of ongoing discussions had with the biological mother to ensure she fully understood what she was doing.
Her evidence is that while the cultural parents were living with her they remained the child’s primary carers and spent extended time with the cultural paternal family. She gives evidence of an open and respectful shared care arrangement with the cultural father and his family. She gives evidence of regular time spent and communication with the child by the cultural mother.
At the time of trial she was the child’s primary carer. Her concluding and persuasive evidence is that:
43. [X] lives in our community surrounded by a huge family network. [X] is part of the [Huff] family, [E & F] family, [V & W] family, the [FF] and [GG] families, and many more extended families. [X] has Grandmother’s, Grandfathers, Aunties and Uncles everywhere across the (Region HH) and the Torres Strait. We all love [X] and he is part of family and our community.[9]
[9] Affidavit of Ms E filed on 31 October 2022, paragraph 43.
Ms U - The Cultural Expert
The affidavit of this witness sets out her expertise and also her hands on involvement in assessing this particular arrangement.
There was no challenge to Ms U’s expertise, which is impressive. She is an elder with extensive personal and professional experience. She has worked for many years to see the recognition of Torres Strait Islander child rearing practices including her involvement with the working party that saw the state legislation created and passed.
Her affidavit annexes a report as to her interviews with the cultural family and biological mother as to what occurred and her opinion as to what orders this court should make – in particular she recommends that the child have no contact with the biological father. Although she does not specifically say so in her affidavit, it is clear that in her view this arrangement constitutes a Torres Strait Islander child rearing practice. This was confirmed through cross-examination.
Her affidavit expresses that the tradition of Torres Strait Islander child rearing practice of giving and receiving of children is considered “… one of the most sacred and taboo practices of the Torres Strait Islander people since time immemorial”.[10]
[10] Affidavit of Ms U filed 26 May 2022, p.6
She does however concede that the process has adapted to reflect social changes. For example, in modern times, the parties to the giving and receiving of a child in accordance with Torres Strait Islander child rearing practices are encouraged to get legal advice as well as counselling.
Her evidence is that the culture of all parties is considered when deciding if what occurred fits within the parameters of Torres Strait Islander child rearing practices – the only exception is where there is a non-Torres Strait Islander involved. Only the traditions of the Torres Strait Islander people are considered.
Under cross-examination she again spoke of the giving and receiving of a child being characterised “with love” and that the person receiving was selected with care.
She did not agree that the practice for unmarried biological parents in Region JJ provided that the father made decisions regarding a male child while the mother decided regarding a female child.
She agreed that in the Torres Strait there was another practice which could be called “caretaking” where other family members may raise a child. In that case the child may be raised by a family member, however the child was not given to be the child of the caretakers. She was clear in her opinion that the arrangement in this case was not a caretaker arrangement.
Although pressed under cross-examination, she would not agree that in an ideal world the biological father should be involved in the process or that the process was incomplete because he was not involved. She gave evidence that the practice can and does occur without both biological parents being involved, giving examples of where a mother is desperate or if there are safety concerns.
She explained that her recommendation for no contact with the biological father was based on cultural mores – that once a child is given there is no contact with the biological parents.
Her evidence is that disputes may arise, for example if a child was not well cared for, and such disputes were determined by the family.
She disagreed that her assessment was incomplete due to her failure to seek input from the biological father.
Counsel for the biological father questioned this witness’ independence due to her refusal to answer a question that she perceived as counsel’s efforts to “corner” her. I do not accept that her refusal means I should not place significant weight on her evidence. I accept that she is passionate about the acceptance of Torres Strait Islander child rearing practices, but that does not mean that she would be dishonest. I am satisfied that she was in fact an honest witness.
I accept her evidence that what occurred does, in her expert opinion, fulfil the definition of Torres Strait Islander child rearing practices. There was no other expert evidence before the court and she remained consistent and indeed adamant throughout her cross-examination.
Ms CC - The Family Report Writer
The parties have had the benefit of three Family Reports, the initial Family Report in 2021, an updated Family Report in 2022 and the addendum prepared in 2023 before the trial. The third report was done without undertaking further interviews.
To reflect the complex nature of this matter and in order to properly respect and gain an understanding of the cultural issues, the Family Report writer and the Indigenous Family Liaison Officer travelled to the Torres Strait to undertake interviews for the second and updating Family Report. The Independent Children’s Lawyer was also involved in this process. This allowed the Family Report writer to explore the complex tapestry of culture and family as understood by Torres Strait Islanders and to meet on their home turf the extended family who carry such importance in the life of islander children.
The Family Report writer also had the benefit of the expert cultural evidence at the time of the updating Family Report.
In the first Family Report[11], the recommendation was for the cultural parents to have equal shared parental responsibility, the child to live with the cultural father (where he was living at the time of the interviews) and spend time with the cultural mother as agreed, and that the child spend no time with the biological father. This recommendation was based on a number of factors[12] but largely the history of family violence, the biological father’s lack of insight, his aggression, particularly in the presence of the child B, that removing the child from his current environment “may pose a significant risk to the child’s development; emotionally and physically”[13], the geographical distance involved, and the concern that the biological father “would not be able to co-parent and communicate with the cultural parents and may also involve X in conversations about the events that led the child to be culturally adopted and eventually in his care”.[14]
[11] Family Report dated 8 September 2011 and released on 12 September 2021.
[12] Evaluation at paragraphs 113–127.
[13] Paragraph 121.
[14] Paragraph 124.
In the second and third reports, she stepped back from a clear recommendation and left the determination of living arrangements completely in the hands of the court. In the second report she noted the number of changes to the child’s living arrangements, the risk factors as addressed in the first report (noting that her assessment of risk from family violence remained unchanged), positive changes the biological father had made since moving to City M, noting that she deemed the risk of self-harm a potential risk factor, and the father being pro-active and addressing some of the issues raised in the first report. She also considered the risk factors arising from each potential outcome.[15]
[15] Evaluation at 113–133.
She expressed the opinion that if the child was placed in the care of the biological father then it was “highly likely” that would result in trauma for the child. That is a harm that would arise almost immediately.
If however the child did not have a relationship with his biological father and sibling, the impact would not be known for many years. She reported that the cultural family are well aware of the range of emotions the child may feel when he discovers that he has been traditionally adopted including “anger, confusion and he may reject his parents”, however they impressed upon the Family Report writer that he is “loved, supported and nurtured” and would be “comforted and consoled” when the time came.[16]
[16] Paragraph 125.
Importantly she noted that the child’s cultural family are “meeting his basic needs in a safe environment where he is loved and nurtured by his parents, grandparents and extended family. Additionally he is immersed in and making connections with his culture, community and traditions”.[17] The extended family impressed on the Family Report writer that he is special to them and fiercely protected as a child who is considered exceptional.[18]
[17] Paragraph 131.
[18] Paragraph 114.
Under cross-examination the Family Report writer saw the primary issue in dispute as whether what had occurred was an example of the Torres Strait Islander child rearing practice. I do not agree, as the court must follow the best interests’ pathway regardless of any findings that are made about the giving and receiving of the child. Whether the child has been culturally adopted is but one of the factors that must be considered at s 60CC(3). While that obligation is reinforced through the stand alone provision of s 61F it is not elevated above all others.
Under cross-examination the Family Report writer confirmed that there could be negative outcomes for the child if he did not have a relationship with his biological family. As to specific outcomes, she advised that whilst there could be a negative impact for some children, other children do not seek the relationship. Her opinion as to the “high” likelihood of trauma if he is removed from his cultural family was more certain.
Whilst she was of the view that there was no evidence that the biological father was deficient in the care of B, I do not agree. The biological father’s own evidence is that he has exposed B to family violence, B has changed schools on numerous occasions and his attendance and academic records in the material tendered are poor.
Under cross-examination, having considered the importance of sibling relationships, she agreed that the child would likely never have a relationship with B in the event that he had been culturally adopted. She acknowledged that there could be impacts on the child’s mental health but again she was of the view that it was difficult to predict.
The Family Report writer confirmed her opinion as to the risks in the biological father’s care due to his inability to regulate his emotions. Her evidence was that when a parent is unable to regulate their emotions, the child could experience emotional and developmental issues. She also expressed the opinion that there could be physical risks. This is because children do not know how to regulate their own emotions so they model from their parents’ relationships. She gave evidence of the possibility of a child developing anxiety or depression in such a case.
The Family Report writer expressed the opinion that the risks arising from the biological father’s mental health issues could be ameliorated through professional support if significant enough, and that good friendships and social networks could assist the father in adhering to a treatment program. She defined professional support to involve regular appointments, expressing that strictly adhering to the program was essential. The court can only know about the success or otherwise of such programs through review, which is often done through a report. She was of the view that the father should undertake the courses and counselling recommended before spending time with the child. She confirmed that DBT, the treatment recommended for the father by Dr Z, is a lengthy and intense program.
When asked how family violence risks could be mitigated or ameliorated, she confirmed her recommendation that the father do a behavioural change program.
Noting the father’s evidence under cross-examination that he may not be able to contain himself and that if he spent time with the child it may “slip out” that he was the child’s biological father, she was of the opinion that if the child is given information about his background, impulsively and without proper thought, that could lead to confusion, and depending on his age it could have an adverse impact on his emotional well-being. She also expressed the opinion that it could have an impact on his sense of identity, and that could show itself through acting out and risk-taking behaviours.
She expressed the opinion that if the child was introduced to the father as a cousin, and then was told that he was really his biological father then that could lead to confusion. It could impact on his sense of identity and make him question his family unit. For an Islander child the family unit is his extended cultural family, not just the cultural parents.
The third and addendum report reflected her review of the psychiatric evidence and updating subpoenaed material. Her opinion was that although there may not be direct physical risks, as appeared to be suggested by Dr Z, there was a potential risk of harm if the child is in the father’s care and the father is “provoked” and resorts to violence as he has done in the past.
The records reflect the father’s ongoing struggles with regulating his emotions and his impulsivity. The Family Report writer expressed that if the biological father did not manage his mental health appropriately his “ability to adequately care and act in a protective manner for his child/ren could be compromised”.[19] For the record, my understanding of “acting protectively” is not a reference to physical acts but rather the ability to contain physical and/or other violent reactions and to protect children from being the subject of or witnesses to violence of word or deed.
[19] Addendum Family Report released on 12 April 2023, paragraph 13.
I was impressed by the Family Report writer’s insights and opinions.
Dr Z – Single Expert Psychiatrist
Dr Z diagnosed the biological father with complex PTSD and a mental illness. He recommended courses and Dialectical Behaviour Therapy (“DBT”).
In his report he expressed the opinion that the biological father was not a risk of harm to his children. However he conceded under cross-examination that by this he meant no risk of direct physical harm rather than emotional or psychological harm.
In his report, Dr Z gave evidence that he did not perceive risks arising from the biological father’s psychiatric health. He confirmed that the diagnoses of a mental illness and complex PTSD were made by him.
When asked about how any risks could be mitigated, he noted that the father had in the past self-presented to seek assistance and to improve himself.
He gave evidence that the ways of mitigating risks were set out in his treatment recommendations.[20] This included the father completing the men’s behaviour change program and DBT. The latter therapy helps a person to understand their own emotions. He expressed that people with a mental illness present with charged emotion; they can have aggressive and unpredictable behaviour and can threaten self-harm.
[20] Affidavit of Dr Z filed 6 March 2023, p.31
He advised that DBT therapy must take place for a minimum of a year and in fact can require two years or even more of ongoing and consistent treatment. He was of the view that therapy was effective if the person engaged well and had the right support. I accept his evidence that that this is not a quick fix.
He expressed the opinion that medication does not work for everyone but can reduce impulsive or unpredictable behaviour.
As to the biological father’s capacity to parent,[21] it became apparent that Dr Z had not seen all of the material. Under cross-examination he was taken through a number of events he had previously been unaware of including:
(a)events where the child B was present at least in part or where protecting B was the trigger for the father’s violence; and
(b)That the father has heard voices that said “kill kill”, noting that Dr Z said that he had read it, but the father did not tell him. He noted that hearing voices can be quite common in people with a mental condition.
[21] Affidavit of Dr Z filed 6 March 2023, p.31.
When asked if he was troubled about the evidence of the biological father blacking out and hearing voices, Dr Z’s response was that it depended on how the father reacted to the voice. He was told that last time the father heard the voice was in 2021 and that he had assaulted the person, left him in a pool of blood and that an ambulance was required. Dr Z’s evidence was that was cause for concern.
He agreed that it was concerning that the father had acted on the voice, he agreed that the biological father has significant issues with aggression and impulse control, and that he does need work, and that if he did not get long-term psychological input then he would struggle.
The single expert psychiatrist gave evidence that the strategies he proposed would take time, and that a consistent approach and consistent engagement would be needed. His evidence was that mentally ill people struggle to be consistent, but expressed the opinion that they engage better with DBT. He also gave evidence that people with mental conditions can struggle with group therapy, which was an important part of DBT.
He expressed the view that complex PTSD and a mental condition have a lot of symptoms that overlap and that DBT would resolve a lot of the PTSD issues.
Ultimately, he agreed that it would take some time for these treatments to have any effect, and it would depend upon the father’s engagement as to the utility. Certainly the father’s psychiatric history[22] reflected that he had not been consistent in engaging in the past.
[22] ICL Tender Bundle, p.230
Dr Z was of the opinion that it was concerning that the father was unable to identify his triggers, which meant he would be unable to avoid triggers and reduce risks. He agreed that the father’s history of engagement with services was reactive, as opposed to reflecting forethought.
Dr Z expressed the opinion that there were some risks with the father in circumstances where the father was unable to identify his triggers, where he does have financial issues, and where he is reactive in seeking assistance. Dr Z expressed the opinion that the father tried his best to look after his son, but he conceded that the risk is still there in relation to aggression and financial stressors. He agreed that when he said the father was not a risk, he meant that he was not a direct physical risk rather than the risk of psychological and emotional harm to a child being exposed to that type of behaviour.
It was put to Dr Z that the father was made aware of PTSD and mental illness diagnoses, at least as early as 2019 but had done nothing to consistently address it. The single expert expressed the opinion that the public sector can be chaotic, and an individual can be seen by different medical professionals and end up with several different diagnoses. As a consequence, it can be difficult to source and continue with long-term treatment. That said I am satisfied that the evidence reflects that at times it is the biological father who has disengaged.
It was put to Dr Z that the father conceded that the orders he sought would cause harm to the child, but he still wished to proceed. So, whilst he had insight about the harm, he was pressing on. The psychiatrist expressed the view that that was more to do with the father’s emotional needs. Dr Z was of the opinion that the father wanted to provide to his children the blood relationships that he himself had missed, noting the father had been in care as a child.
I was assisted by these opinions.
Findings
The Applicant Biological Father’s Trial Affidavits
During the course of cross-examination prior to lunch on 24 April 2023, the father was asked questions about his trial affidavit filed on 24 October 2022. The affidavit expressed a number of opinions about Torres Strait Islander child rearing practices and the cultural parents. During the trial he advised the court those were not in fact his opinions. His evidence is that because of his poor eyesight he had not read the affidavit and was unaware of that evidence until cross-examined during the trial. Given the disclosures he made against his own interests I accept his evidence about that.
His evidence when pressed was “I can’t read”. After the luncheon adjournment submissions were made to the effect that the father could read, but suffered issues with his eyes whereby he experienced blurred vision and headaches if he read for a long time. He was meant to wear glasses but did not do so. At that time none of this was in evidence and the father was still under cross-examination.
As the matter was adjourned to 26 April 2023, leave was granted for the applicant’s solicitor to read the two trial affidavits to the father and to file an affidavit on or before 4:00pm as to whether each paragraph was or was not his evidence. This was attended to.
Under cross-examination the father was a candid and open witness, making concessions and admissions against his own interests. I found him to be an honest and credible witness.
The Applicant Biological Father’s Mental Health.
While the biological father advises that he has sought to engage with a variety of services as recommended by the psychiatrist, there can be no assurances that he would commit in any ongoing or consistent manner given his past failures to do so.
I find the father’s mental health to be a significant issue as a consequence of his concessions in the witness box and his long-term failures to address those issues consistently. The support that he was receiving at the time of trial did not include DBT and was anger management rather than a behaviour change programme. I am of the view that the treatment he was receiving is not adequate to address the risk factors as it is not the recommended treatment. This is not a criticism of the biological father, as the court understands the difficulties and challenges that he faces and accepts that he wants to address his issues. It is however simply a reality that he struggles to do so consistently.
The Applicant Biological Father’s Anger Issues
There is a litany of violent responses by the applicant biological father, some of which are outlined earlier in these reasons. The biological father had no insight that violent behaviour breeds violence and that exposing his son to this sort of conduct might not be in his best interest. He was almost proud of his violent conduct as he saw it as protective rather than as shameful.
His presentation in the witness box included that at times he pumped his fingers repetitively into clenched fists. When challenged about this, his evidence was that he did it to manage his emotions, but conceded that it may appear threatening to others.
At times during the cross-examination the father struggled and he became red in the face and he would slap around the paperwork. I am not persuaded this was always anger but at times was anxiety and to some extent frustration. It was clear that the father felt that some of the questioning was not relevant. Again, this reflected his poor insight as to what is required to properly meet the needs of a child.
Nonetheless I am satisfied that the father has difficulty managing his emotions and that his go to response is violence. I do not accept his assertion that his son has never been exposed to that side of him as on his own evidence that is simply not true.
He conceded that he had been provoked by people saying and doing things to B. He conceded that he was provoked when someone says something about his children that upsets him and that certain aspects of the trial process also upset him.
His evidence was that he never loses his anger with his children. However he had to concede that B had seen at least two violent events. Despite this his evidence remained there would never be violence around his children. This was contradictory evidence and I formed the view that he was telling the court what he wanted to do rather than what he actually did. His evidence was that he was “fixing” himself through counselling and anger management. He is not currently on medication as he wants to do it himself.
He went so far as to say that as long as he had B everything was under control. But the evidence is in fact to the contrary; that despite having B in his care he has still on at least two occasions been unable to control his rage.
The father is to be commended for his engagement with Y Centre. The father’s evidence is that he has engaged with Y Centre since he moved to City M almost six months prior to the first trial date and that he has attended on a weekly basis. Whilst he has produced no independent evidence of that engagement I have no reason to doubt that he has attended and engaged. With the diagnoses and his evidence as to an abusive childhood, it is however likely that he needs more help than he can obtain from a counsellor at Y Centre, and this is supported by the psychiatric evidence.
When talking of what he saw as provocative messages from the biological mother, he gave evidence that he thought she was trying to make him angry and jealous and that she succeeded. So despite believing that he was being deliberately provoked he still behaved poorly and was unable to maintain his equilibrium. I am satisfied that this lack of self-control continues as demonstrated by his conduct in the witness box.
He said that he had tried to be upfront and honest and I accept that. The fact that some details are not remembered by him, such as the identity of the aggrieved parties to the five protection order applications, does not indicate that he is trying to hide that information, because that is contradicted by the open evidence he gave about other matters to his detriment.
I am satisfied that the child would be at risk of harm in the father’s care due to the father’s own evidence outlined earlier in these reasons. I am satisfied that there is a high risk of violent behaviour occurring if the biological father believes that either of his sons are at risk of harm.
I am of the view that undertaking a men’s behaviour change program in circumstances where the father considers his past conduct justified, may be of limited assistance.
I am satisfied that at the time of trial the father was not capable of managing or controlling his anger. That may change in the future however he may again be unable to follow through with courses and counselling and even if he does, whether the outcome will be positive is an unknown.
I do not doubt that the biological father loves the idea of the child and wants to get to know the child and be a parent to him. Whether he can do what needs to be done so that the risks of permanent damage to the child as a consequence of exposure to violence and trauma remains in question. With the best will in the world the father may not be able to achieve his aim; his history is not his friend in that regard.
I am of the view that if the father is not successful in addressing his anger and impulsivity issues and the child is spending time with or living with him, then the child will be at significant and indeed unacceptable risk of harm. There is simply no evidence that the extreme nature of the father’s violence and his uncontrollable and impulsive reactions have been mitigated in any way.
THE LAW
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The court is guided by s 60B which sets out the objects of Part VII of the Act and the principles underlying it.
In making parenting orders, 65D, s 60CA and s 65AA provide that the best interests of the child are the paramount consideration.
Section 61F provides that where the court is dealing with Aboriginal or Torres Strait Islander children or parties, then it “must have regard to” any kinship obligations, and child-rearing practices, of the child’s Aboriginal or Torres Strait Islander culture.
Section 60CC prescribes the various “best interests” considerations that the court is obliged to consider in arriving at its determination.
Section 60CC(2) sets out the two primary considerations, described by Justice Brown in Mazorski v Albright (2007) 37 Fam LR 518 as “twin pillars” being the need for meaningful relationships and the need to keep children safe from harm. The court is required to give greater weight to keeping a chid safe from harm. The additional considerations are set out in s 60CC(3) and consideration must be given to all of those issues including parental capacity, the extent to which each parent has fulfilled their parental responsibilities, cultural matters and family violence. No greater weight is placed on any particular additional consideration.
In this matter, given that the court is asked to consider orders in favour of non-parents, a different pathway is triggered as not all s 60CC provisions apply to non-parents.[23]
[23] Kent J in Blaze v Grady (2015) 54 Fam LR 172, particularly at [122].
In MRR v GR (2010) 240 CLR 461, the High Court stated that ss 65DAA(1)(a) and (b) and 65DAA(2)(c) and (d) are expressed in imperative terms and oblige the court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time.
I am also conscious that the same can be said of the biological father’s oldest child as the father conceded that B had attended three schools in 2021 and 2022, and is now attending a different school again in City M. I am not critical of the father, as often necessities such as housing commission availability are the cause, however that is hardly a well settled example.
I am satisfied that the Torres Strait Islander concept of family has seen that this child’s needs are well met – just not always by the cultural parents themselves. I make no criticism of the cultural parents for relying on extended family. That is indeed very much in line with the Islander concept of family as we have learned through the cultural expert who gave evidence of the grandparents’ emotional support of the child.
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
The biological father conceded he had never paid nor offered to pay child support. He was taken to a document in which the mother said that at that time she had been paying regular money to him for when the child came into his care.[34]
[34] Affidavit of Applicant filed 24 October 2022, Annexure C2.
I accept that the child is supported financially solely by the cultural parents and extended cultural family.
S 60CC(3)(d) The likely effect of any changes in the child’s circumstances
If the child moves to live with his father he will be separated from his cultural family, being the only family that he has known for the last four years. The father’s position is that after six months all contact will cease, so that the child will lose those connections and supports totally. He will be living in a different town where he has no familiar faces. His only connection to the father and to City M is the biological connection.
If he remains living with the cultural parents then nothing changes for this child other than by arrangement between the cultural family as it has been done in the past.
The family report writer saw risks of psychological harm in either outcome, with more immediate and quantifiable risk if the child is moved to the biological father’s care in line with the biological father’s proposal.
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
The biological father’s proposal for a build-up of time involves considerable expenses. He proposes to meet those costs himself. This includes flights for himself, the Court Child Expert, and the cultural mother to and from Town G for the purpose of explaining the orders to the child. The father had not looked into the reality of those proposals. He did not know the cost of flights, or where the Child Court Expert or the cultural mother would be flying from. He nonetheless estimated $2,000 for a return flight.
The biological father also proposed to be solely responsible for the cost of travel and contact supervision. Again, he had made no enquiries about the costs or practicalities. He proposed that the contact take place in Town G but he was unable to provide evidence about where or who would supervise that time. He had made enquiries as to location and supervisors in City M with NN Centre but OO Centre had not got back to him and he could provide no evidence as to cost.
He conceded that at the time of trial his sole source of income was Centrelink benefits, having just been let go from his last job as a tradesperson. That job had involved working only two days a week. His evidence was that he had another job which was to start immediately after the trial. At the time of trial however he had $800 in the bank.
The biological father’s proposal would see him meeting the costs of contact supervision and monthly flights in circumstances where he has no actual capacity to do so at the time of trial. His evidence was that he would find the money; that he always did. I do not accept that evidence. You cannot make money appear from thin air on an ongoing basis.
And whilst the biological father’s proposal required him to undertake courses and counselling, he expected his time with the child to commence prior to the completion of that work and, further, that if the courses were not available then his time with the child should proceed nonetheless. He gave evidence that he had not heard back from some of the service providers but on the face of his evidence he had not followed it up.
His evidence around this area led me to form the view that he was simply ticking boxes rather than committing to the program he had put in place for supervised time and courses. Further, the cross-examination showed that the biological father had not turned his mind to the real practicalities of his proposal and how it would actually work.
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
I am troubled about the biological father’s capacity due to his propensity for violence, his conceded impulsivity and his inability to protect his child B from his outbursts of violent rage. He may have the capacity to provide shelter, food and practical supports but I am satisfied he has limited capacity to provide emotional support and meet psychological needs.
Under cross-examination, the biological father conceded that although he would try not to tell the child that he was his father and that B was his brother, it may ‘slip out’ once or twice. This was despite also conceding that if he did so there could be a bad outcome for the child.
The biological father conceded that the orders he sought were not in the best interests of the child and could cause him trauma and emotional and psychological harm. But nonetheless he remained determined to pursue having the child live with him, severing the child’s relationship with the people that the child has regarded as his family for four years, changing the child’s name and telling him that he is his real father, the first respondent is his biological mother and B is his brother. In doing this he would move the child geographically from the Torres Strait and Region HH area that is currently his home and relocating him to City M, so that everything would be strange and different. Nothing from his old life would travel with him. All this despite the father’s concessions about the negative impact on him of his own childhood trauma. This goes far beyond a lack of insight. He proposes wilfully and intentionally to assure harm to the child. Despite accepting that it will cause the child harm, he is determined to right the wrong that was done to him by the biological mother. His impulsivity and lack of true insight coupled with his determination to assume the role as a father to this child clearly overwhelms all other considerations.
At one point during cross-examination the father stated “I can’t read”. It was later clarified that in fact he could read but was both short and long sighted, had never bought glasses and thus was unable to read for any period of time without suffering blurred vision and headaches. His evidence, which I accept, was that he had not read his affidavit material in full and an early adjournment was granted that day to allow the material to be read to him. It is troubling that he has never addressed the issue, giving evidence that he could not afford glasses and also that he didn’t want to wear them. For the biological father to assist the child with homework, to read books to the child and to drive the child to and from school and extracurricular activities will all require glasses. It may seem a small matter but would have a real impact on his capacity to parent.
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
This is a four year old child. He is of mixed heritage. He has never met his biological father. He believes the second and third respondents are his parents in line with Torres Strait Islander child rearing practices and beliefs about cultural adoption. He believes that their parents are his grandparents.
The Family Report writer foreshadows the risk of significant psychological harm to the child in the event that he is told otherwise. This would be particularly so if the father impulsively blurts it out, as he concedes he may well do.
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
The child’s biological mother and both cultural parents are Torres Strait Islanders.
The child has spent the first four years of his life living in the Torres Strait and Region HH areas amidst Torres Strait Islanders.
The father lives in City M and is not a Torres Strait Islander.
Whilst the father gives evidence that he will maintain the child’s connection to the Torres Strait and Aboriginal communities, he brought no evidence as to how this would be achieved, other than saying he knows people form those communities. Further he gave evidence that he was unaware of the tradition of cultural adoption prior to the child being given to the cultural parents which contraindicates any real knowledge or understanding of the culture.
If the father is successful in his application then the following will occur:
a)The child will be removed from his home in Region HH and Torres Strait areas;
b)The child will be removed from the cultural parents and his extended cultural family; and
c)The child’s connection to that culture and those people will be lost or at the very least significantly damaged due to the father’s limited capacity to meet those cultural needs and his determination to bring the child’s relationship with those people, his cultural extended family, to a complete end.
S 60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The biological father is determined to be this child’s father to the exclusion of the cultural parents. He has pursued that through these courts and gave evidence that if unsuccessful he would appeal and that he would never stop until he had his son in his care. He conceded that his head said one thing but his heart said differently. The relentless and insightless determination he brings to that pursuit is troubling indeed.
S 60CC(3)(j) Any family violence involving the child or a member of the child’s family and 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
This issue has already been thoroughly explored and findings made.
S 60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The matter has been on foot since December 2020, the subject child is now four years old and has never met his biological father.
S.60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant
As noted earlier, where the s 60CC provisions do not allow consideration of non-parents, I have used the powers invoked by this provision to ensure that all relevant factors are properly considered.
This provision also allows the court to consider the biological father’s evidence as to his determination to pursue a relationship with the child through the appeal system and the potential impact on the child in the event that occurs. Counsel for the biological father made the point that the father’s views and wishes are irrelevant, that it is the courts view that is important. I agree, however the father’s evidence highlights the fact that his determination will override all other considerations noting his evidence that he would pursue the matter despite being aware that what he wanted was not in the best interests of the child. I am satisfied that he is in the court process for himself and not for the child.
The Family Report writer considered the impact on the biological father’s mental health in the event that this court does not make orders as sought by him. This court does not consider children to be treatment plans for their parent’s mental health issues. It is not a factor that I consider appropriate to consider in my determination. The legislative pathway is clear. The child’s best interests are the paramount consideration – not the biological father’s. It is the father’s responsibility to manage his own mental health.
DETERMINATION
Interlocutory Orders
As to whether this court should make interlocutory orders as sought by the father, I decline to do so for the following reasons:
(a)This matter has been on foot since 24 December 2020 – more than two and a half years ago. It is time to make an order that finalises this matter and avoids further litigation.
(b)The child is only four years old and yet for the majority of his young life there have been court proceedings on foot.
(c)The father has had ample time to work on his mental health. He has a long history of failing to follow through.[35] The material tendered during the trial reflected the father’s attempts to address his issues. Whilst I accept that it is not easy to obtain services from community mental health, I also note the records tendered reflect that at times the father has disengaged rather than been frustrated by a lack of services.
(d)I am not persuaded that the father does wish to change his behaviours and beliefs. As I noted earlier he is unashamed, almost proud, of his violent reactions where he sees himself as having been protective of his son.
[35] ICL Tender Bundle .
Living arrangements
I accept the opinion of the cultural expert that this child has been given and received in accordance with Torres Strait Islander child rearing practices. In short, that he has been traditionally adopted in accordance with Island custom. This is the view not only of the cultural expert but of all the Torres Strait Islander witnesses in this matter.
Having made that finding I must however consider that within the context of the legislative pathway.
I am satisfied that the biological father constitutes an unacceptable risk of harm to the child for the following reasons:
(a)If the child were to live with the father in accordance with his proposed orders, the child would be separated from the only family he had ever known. I accept the opinion of the Family Report writer that the child would be highly likely to suffer trauma as a consequence of that.
(b)The father’s impulsivity, anger and violence. While it may not be directed towards the child I am of the view that he is highly likely to be exposed to it – just as B has been. I have in mind the father’s own evidence about “hulking up”, losing it, beating someone to a bloody pulp, and being unable to contain his rage even in the presence of the police. Coming from his highly protected background, this behaviour would present a further and high level risk of physical and emotional harm to the child.
(c)The sheer relentless nature of the father’s determination to win this case at any cost, regardless of the damage that may be caused to the child, rings alarm bells.
I am satisfied that it is in the child’s best interests that he continue to live with his cultural family. I am satisfied that he is a child who has been culturally adopted in accordance with Torres Strait Islander child rearing practices. I am satisfied that the cultural parents and their families have the capacity to meet the child’s needs. I am satisfied that the risk of psychological harm that arises from the Torres Strait Islander child rearing practices are well known to his cultural family and will be well managed when the time arrives.
Turning to reasonable practicability, if the child remains living with the cultural family I am satisfied that he will continue to maintain meaningful relationships with those family members. There is a proven history of that having been done to good effect, despite the distances that at time separate them.
Submissions were made on behalf of the biological father that the court should consider any configuration of order that was deemed to be in the child’s best interests and that would allow this child to move into his biological father’s permanent care. The difficulty is that without some regularity of contact a meaningful relationship would be difficult to establish and the court has no evidence as to the appropriate or indeed possible regularity other than that as proposed by the father.
Turning to look at any time with the biological father. In terms of a traditional adoption, it is contrary to Island custom that there be any contact between the child and the biological family in terms of the usual sorts of orders that this court would make. On the father’s own evidence I am satisfied that if he did have contact with the child he would be unable to contain himself and that the reality of the child’s biological parentage would “slip out”. I agree with the Family Report writer that if the sharing of the child’s heritage was not carefully handled, it could be detrimental to the child’s physical and emotional health. That together with the family violence and danger and impulsivity conceded by the father lead me to the view that neither time nor communication with the father would be in the best interests of the child.
I am also satisfied that it would not be practicable for time spending orders to be made. The father lives in City M. The child currently lives in Town G. That is a 20 hour drive or flights which the father conceded would be about $2,000 return. Therefore his proposal (in the event that the child was ultimately to live with him) for two weekends of contact for 12 months is simply impracticable and cannot possibly be in the best interests of this young child. No one in this matter is wealthy, none of the parties can afford to spend around $4,000 per month plus accommodation costs plus contact supervisor costs. And even could they do so the amount of travel for a young child is burdensome.
In the event that roadblock was overcome, and the child lived in City M with the father, then any contact between the child and the biological mother on a practical level would be straightforward as she is also living in City M. Not that the father has proposed any such contact.
If the child was to live in City M but maintain regular contact with his cultural family then those costs and travel are again an issue, however that is likely to be less frequent once he starts school. And again the father does not seek such Orders. After a period of six months the father proposes all contact be ended.
Moving to consider the position if the child remains living with the cultural parents, the child spending equal time or indeed substantial and significant time with each cultural parent is unlikely to be reasonably practicable due to the distance. The cultural mother gives evidence that the drive from Town H to Town G takes a day. Then if travelling to the Torres Strait, the ferry to Town KK takes about 45 minutes, then the ferry to Town J (where the cultural father used to live) takes about 15 – 20 minutes. The cost of the return ferry trip is about $160 plus there would be the cost of petrol to get from Town H to Town G return. The cultural maternal grandparents live in Town G and the cultural paternal grandparents live on Town J.
The cultural father now lives on Town D which requires further travel by boat or plane. They are living in his partner’s parents’ home however they have permission to build their own home and he is seeking work on Town D as a tradesperson, such that it is clear he intends to remain living there. In cross-examination he said that he would like the child to live with him but also spoke of sharing with the cultural mother. When asked how they would deal with the situation if the child lived with the mother in Town H, his answer was that they would just have to come to an agreement. Given that they have managed to do so to date, I accept that they will continue to do so in the future.
I have considered that there may be future disputes as to the child’s living arrangements amongst his cultural family. Such disputes have been managed in the four years to date, with the child transitioning amongst the cultural parents and their families without any evidence of harm to the child. Quite the reverse based on the family reports. As the cultural mother said, she saw no problem with the child “moving within that circle of people and love that he knows”.
Both of the cultural parents were reluctant to support orders that the child spend time with the biological father in terms of the usual court orders as that is against Island custom. The cultural father was not troubled about the impact on the child when he was told that he was culturally adopted, as other members of his family had been through it and although different people react differently on finding out but “they always come with a part where they know where the love comes from and that’s the family”.
I am of the view that the biological father clearly has some level of insight as he concedes that what he wants is not in the child’s best interests. That said he is determined to pursue it anyway. I therefore agree with the Independent Children’s Lawyer that he himself has closed the door opened by the Family Report writer, who left it open to the court to consider whether there should be time between the child and the biological father.
I am satisfied that if the child lives with or only spends time with the father, that the father will disregard Island custom and tell the child about his relationship with the father and B without thought for anything but his own needs and desires.
I am satisfied that in the event that orders were made for the child to live with or spend time with the biological father, the biological father would be an unacceptable risk of emotional and psychological harm and expose the child to the risk of physical harm. This is because he himself concedes that he will be unable to control his burning desire to tell the child that he is his biological father and his determination to shift the cultural parents out of this child’s life completely.
I accept the submission that s 61F is relevant to reasonable practicability. In considering reasonable practicability, I am of the view that the court must in doing so consider not only the cost of travel but also in the event that the child lives with the biological father his ability to maintain the connection to culture. I do not accept that he has sufficient capacity to do so – certainly not comparable to the cultural family who are living that life.
I am satisfied that it is in the child’s best interests that he continue to live with his cultural parents or with his cultural extended family as they may choose, and spend no time and have no communication with the biological father. This is based upon the findings that I have made about family violence, the biological father’s anger and impulsivity and his mental health and the fact of the cultural adoption of the child and the Island customs that arise form that process. I am also satisfied that it is reasonably practicable despite the distances between the cultural parents and the extended family for the reasons outlined above.
Restraint
I propose to make the restraint against the biological father contacting or approaching the child. I am satisfied that given the opportunity the father will contact the child and tell him that he is his father. This can do the child no good until such time as he is ready and has the support of his cultural family in managing any fallout.
I will extend the scope of the restraint to prevent the father approaching the child at any location.
Parental Responsibility
In accordance with s 61DA(1), when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.
Looking at the biological parents alone, the presumption of equal shared parental responsibility does not apply between them, or in any configuration between the parties, because of the biological father’s extensive history of family violence as witnessed by the five Protection Orders as well as the mutual orders that lie between the biological parents. In this case the biological father is open and indeed unrepentant about his violent behaviour.
As regards to the cultural parents, there are no Protection Orders between them or between them and the biological mother. They have no relationship with the biological father so there are no allegations of violence or Protection Orders between them.
Whilst the cultural mother originally sought sole parental responsibility, I accept her evidence that at that time she did not really understand what that meant and that she has always been happy to share responsibility with the cultural father.
The cultural parents are separated and they communicate through their respective parents about the child. They both gave evidence that this works well. I accept their evidence that their relationship breakdown was relatively amicable. The cultural mother displayed a good understanding of the concept of parental responsibility and I accept her willingness to consult with the cultural father for the sake of the child.
The biological father, unsurprisingly feels a high level of resentment against the other parties in this matter, giving evidence that they took his son away for four years, that he did not see the birth; asking how that was fair. This is a self-focus rather than a child focus but it reflects his resentment and his perception of his entitlement as the biological father.
This was really clarified during cross-examination by Mr Raeburn for the ICL when the biological father conceded that his application was based on what he wanted rather than the child’s best interests. It was around this questioning that the father became very distressed and the matter had to be adjourned due to concerns for his mental health and well-being.
The biological father and the cultural parents have no relationship. They have never communicated. As they believe, and this court has found, that the process by which the child came into their care is a cultural adoption, then the cultural parents’ failures to communicate with the father or facilitate time is in line with that belief. This is particularly so given the father’s admitted wish to tell the child he is his biological father.
The biological father’s anger seems to be mainly focussed on the biological mother, however he seeks orders which ultimately cut the two people the child believes are his parents out of his life. Despite the fact that his orders sought provide for time between the child and the cultural mother on special occasions, under cross examination the father’s position was that after six months he wanted all contact to end.
For all those reasons I am of the view that equal shared parental responsibility should lie with the cultural parents. I will also make the orders facilitating the issue of a passport without the biological father’s consent to avoid future litigation.
The child’s name
Shortly after his birth the child was given by his biological mother to the cultural parents in what they believe to be a cultural adoption in accordance with Torres Strait Islander child rearing practices.
The cultural parents named him X Wilcox-Keller and he has always been known by that name. His birth was subsequently registered as X Clovis-Huff by the biological parents, in what I can only see as a strategic move rather than a child focussed one.
I propose to make the orders that will facilitate the cultural parents changing the child’s registered name to reflect the name given to him by his cultural parents at birth – X Wilcox-Keller.
CONCLUSION
Based on the findings and reasons set out above I am satisfied that the Orders that I now make are in the best interests of the child.
I certify that the preceding three hundred and forty-six (346) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope. Associate:
Dated: 29 November 2023
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