D and J
[2005] FMCAfam 230
•13 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & J | [2005] FMCAfam 230 |
| FAMILY LAW – Contact – indigenous children aged 14, 7 and 5 – children’s mother deceased in violent circumstances – children living with maternal grandfather – maternal grandfather believes father instigator of mother’s death – paternal grandmother seeks contact – high level of conflict – non–appearance by applicant – whether matter should be finalised – desirability for contact to be supervised. |
| Family Law Act 1975 (Cth), ss.68F(2) |
| Taylor v Taylor (1979) 143CLR 1 |
| Applicant: | L N G |
| Respondent: | B (W) G J |
| File Number: | DNM 2603 of 2002 |
| Judgment of: | Brown FM |
| Hearing date: | 9 May 2005 |
| Delivered at: | Darwin |
| Delivered on: | 13 May 2005 |
REPRESENTATION
| Solicitors for the Applicant: | In person – no appearance |
| Counsel for the Respondent: | Ms T |
| Solicitors for the Respondent: | Halfpennys Solicitors |
| Child Representative | Mr S |
ORDERS
That the applicant paternal grandmother L N G have contact to the children T L D born 25 July 1997 and A D D born 10 June 1999 as follows:
(i)on one occasion each month for three hours at Centacare Family Contact Centre;
(ii)the contact be supervised by the Director of Centacare or his/her nominee.
That for the purposes of such contact the applicant grandmother will make arrangements for the children to be picked up and returned to the maternal grandfather’s home at B C at her cost.
That the grandmother shall pay the costs charged by Centacare for their supervision of contact.
That the Children’s Representative personally serve a copy of the orders made today and the reasons for judgment on the paternal grandmother.
That the applicant paternal grandmother has 42 days from the date of service upon her of these orders to relist this matter.
That written reasons are to be provided to the parties by 20 May 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM 2603 of 2002
| L N G |
Applicant
And
| B (W) G J |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are L N G and B (W) G J. They are the paternal grandmother and maternal grandfather respectively of three children, C D born 17 December, 1992; T L D born 25 July, 1997; and A D D born 10 June, 1999. Currently the three children live with Mr J. These proceedings are concerned with contact arrangements between the children and Mrs D.
The children’s father is D W D, who was born on 15 June, 1970. He is not a party to these proceedings. The children’s mother is deceased.[1] She died on 1 January, 2002. As a result of the circumstances surrounding the mother’s death, it is a difficult and upsetting case.
[1] Out of respect for the feelings of the various people involved in this case, I will not refer to the deceased directly by name. The circumstances surrounding her death are set out in the findings of the Northern Territory Coroner, Mr C delivered on 10 February 2004.
Mr D and the deceased mother were involved in a relationship for approximately ten years. It is Mr J’s evidence that the relationship between the two was one that was marked by extreme violence inflicted by Mr D upon the deceased mother. She separated from Mr D prior to her death and obtained a domestic violence order against him.
The deceased mother died in unexpected and suspicious circumstances in the early hours of 1 January, 2002. As a result, an inquest was held into the circumstances surrounding her death. The medical cause of death was “drowning contributed to by a high level of intoxication”. The deceased was also found to have four recent stab wounds to her body. Mr C, the coroner, delivered an open finding in respect of the death. However, Mr J and other close members of the children’s maternal family firmly believe that Mr D was responsible for the death. Needless to say they hold feelings of the highest antipathy for Mr D, whom they believe is a violent and antisocial person. They are frightened of him.
The three children concerned have lived with Mr J and his wife since the death of the deceased. They have not had any contact with Mr D during that time. On 20 September 2002, Mr D began proceedings in this court seeking, on a final basis, that the three children concerned live with him and have weekend contact with Mr J. On an interim basis he sought alternate weekend contact to the children. Due to the unusual and tragic circumstances surrounding the matter, I ordered that each of the children be separately represented in these proceedings. This order was made on 17 December, 2002. The children’s representative is Mr S, a Darwin solicitor. On this day, I also ordered that the children concerned live with Mr J and in the interim that there be no contact between them and Mr D.
On 24 June, 2003 Mrs D was granted leave to intervene in these proceedings. She sought to have contact to the three children concerned on each third Saturday from 9.00am until 5.00pm. She also wished to have telephone contact with the children, on one occasion each week.
On 30 September, 2003 Mr D indicated that he no longer wished to proceed with his application in respect of the three children concerned. As a result, his application was dismissed. Thereafter, the proceedings have concerned Mrs D and Mr J. Their competing applications were fixed for trial in March of 2004 and a family report was ordered.
The family report was prepared by Ms T D. In her report dated
30 January 2004, Ms D reported as follows:
“The three children are effectively orphaned. From the overall information, it is likely that contact with their father would not be indicated for any of these children. While the current applications before the Court do not include any application from the father, Mr D D’s relationship with his mother needs to be considered in regard to Mrs D’s application for contact.
B J is a strong, protective and caring grandfather for the children. He is committed to maintaining the children’s safety. The children appear to feel safe and secure in their current residence situation.
C expressed clearly that she does not want contact with her grandmother at this time. In the opinion of the writer, it would be likely to be not in C’s best interests to force her to have contact with her grandmother before she is ready. It is likely that Mr J is deeply affected by the death of his daughter, and that his belief that the father murdered his daughter is affecting his ability to have a positive relationship with the paternal grandmother. In the assessment of the writer, C is partly influenced by Mr J’s attitude in her current opinion about contact with her grandmother. Nevertheless, in the opinion of the writer, C’s wishes need to be respected at this time.
From information provided by the Child Representative, the writer decided that the children would not be observed with their paternal grandmother during this assessment. They have not seen her for at least a year, it seems. Nevertheless, in the opinion of the writer, it is not possible to conclude that the younger of the two children would not benefit from contact with their grandmother. In the opinion of the writer, these children may be denied opportunities that are essential to the full development of their identity, if they have no opportunity for contact with their grandmother.
The first priority of such contact would need to be the children’s safety. Evidence from the past indicates that Mrs D may not be able to protect the children from her son, and may not be able to stop contact between the children and her son. The only contact arrangement that would fully ensure the children’s safety, in the opinion of the writer, would be fully supervised contact at the Children’s Contact Centre. Such an arrangement also provides the opportunity for some professional observation of the reactions of the children to initial contact with their grandmother, and for reports to be available in regard to the progress of contact. Mrs D expressed complete willingness to have contact with the children at the Children’s Contact Centre. In the opinion of the writer, Mrs D indicated that she understood the need to prioritise the children’s safety, and that for this reason she would be happy to cooperate with such a contact arrangement. During the interview, Ms C J and Ms I J both said that they would be prepared to transport the children for such contact if it should be ordered or agreed to.
In the opinion of the writer, Ms L A, Mr L J, and possibly Ms C J and Ms I J all indicated understanding of the idea that the children may be deprived of an important relationship if they are not supported to have contact with their paternal grandmother. It is possible that Mr J is unable to support the children at this time because there has not been enough time since his daughter’s death for him to progress through his grieving process. It is possible that after more time has passed, and the children have had more time in the settled and protective environment in which they now live, that Mr J will be more open to positively supporting the children in their contact with their paternal grandmother.
In the assessment of the writer, the risks associated with a decision that T and A have contact with their grandmother may include that Mr J may be unable to support the children in this contact, and that the children may have some stress because of this. In the opinion of the writer, the fact of this possibility does not outweigh the potential benefits of contact, for the children.”[2]
[2] See Family Report dated 30 January 2004 at paragraphs 27-33
As a result of these matters, Ms D recommended that T and A have contact with Mrs D, at the Children’s Contact Centre in Darwin, under strict supervision, on one occasion each month. Ms D did not recommend contact between C and Mrs D.
On 17 March 2004, with the consent of both Mrs D and Mr J, the following orders were made:
“1.That the applicant paternal grandmother, L N G, have contact to the children T L D born 25 July 1997 and A D D born 10 June 1999 as follows:
i) on one occasion each month for three hours for a period of four months at Centacare Family Contact Centre;
ii) that such contact be supervised.
2.That at the end of the said four month period a further family report shall be prepared by a Family Court reporter as to the future contact arrangements.
3.That for the purposes of the contact in order 1 hereof both the applicant grandmother and the respondent grandfather, B J, shall each attend an interview with the Centacare Family Contact Centre within 7 days of today’s date.
4.That the first contact shall take place no later than 14 days from this date.
5. That for the purposes of such contact the applicant grandmother will make arrangements for the children to be picked up and returned to the maternal grandfather’s home at B C at her cost.
6.That the grandmother shall pay the costs charged by Centacare for their supervision of contact.”
Ms D had recommended that these contact arrangements be revisited after some months and an updated family report be prepared. She herself was unable to prepare such a report and, in her absence, it fell to Mr R, the Director of Court Mediation Services at Darwin to prepare an updated report. His report was completed in November of 2004.
By this time it was clear that Mrs D wished to have contact with the two younger children at her home, away from the somewhat regimented and stilted environment of the Children’s Contact Centre. This was an outcome opposed by Mr J, as he was fearful of the possibility of the children coming into contact with Mr D.
In his report, Mr R recommended as follows:
“This is a particularly difficult and sensitive case involving three children who have been traumatised by the death of their mother and the events that have followed.
The paternal grandmother is an elderly and very frail woman who wishes to maintain a relationship with her grand children in the face of resentment and anger that emanates from the mother’s family.
Mr J presents as a man who is not personally opposed to contact taking place. He notes, however, that the views and actions of other family members also need to be acknowledged and considered in making any decision about contact. He described other members of the deceased mother’s family as likely to oppose contact and as motivated by a desire for “payback” in accordance with Aboriginal customary law. This point is clearly understood by Ms D and her family.
At present contact each month is continuing to take place at Centacare in an environment that is safe and supported for the children. Neither Mr J nor Ms D have raised any significant issues regarding the suitability of Centacare as an appropriate venue for contact to take place. Ms D and her family would ideally like a more open and flexible contact arrangement to be put into place and they are unhappy with the provision that contact be supervised.
It is difficult however, to see how a more open and flexible contact arrangement could safely occur (at this point in time) in view of the relationship existing between the two families. The situation holds potential for further conflict and violence that could impact upon the children, if the current orders were varied to allow for un-supervised contact to take place.”[3]
[3] See Family Report dated 5 November 2004 at paragraphs 17-21
As a result Mr R recommended that the current contact order – that is supervised contact between Mrs D and T and A at Centacare – continue for a further period of two years.
The parties’ competing applications were listed for final hearing on
21 February 2005. However, shortly prior to this date, Mrs D was admitted to hospital. She was too ill to attend the hearing and it was adjourned until 9 May 2005.
The hearing
Mr J and his counsel, Ms T, appeared at the hearing on
9 May 2005. Mr J relied on the following affidavits which had been filed on his behalf:
i)an affidavit of himself filed 9 February 2005;
ii)an affidavit of J-L L filed 15 April 2005.
Annexed to Mr J’s affidavit was a copy of the findings of the Coroner, Mr C SM into the circumstances surrounding the death of the deceased mother. The findings were handed down on
10 February, 2004.
Mr S also appeared on 9 May, 2005. He had not filed any material in the proceedings.
Mrs D did not appear, either in person or through counsel, on
9 May, 2005. She had earlier filed the following affidavits of evidence:
i)an affidavit of herself filed 12 March 2004;
ii)an affidavit of J D filed 12 March 2004.
Orders had been made for both parties to file updated affidavit material in anticipation of the hearing on 21 February 2005. Mrs D did not comply with that order. On 5 May 2005, Mrs D’s then solicitor filed a notice of ceasing to act with the court. This notice indicated that Mrs D had been informed that the case was listed for hearing before the court on 9 May 2005. Mrs D did not appear at court on 9 May, 2005.
However Mr D D did appear at court on 9 May, 2005. He had not commenced any fresh proceedings, following the dismissal of his earlier application. He had not taken part in either of the family reports which were before the court. It was his position that he was expecting his mother, Mrs D, to be at court. Enquiries were made in this regard, but Mrs D could not be contacted.
Counsel for Mr J and the Children’s Representative submitted that it was appropriate that the court finalise this matter in Mrs D’s absence. Mr D indicated his wish to adjourn the proceedings. However, I was of the view that Mr D did not have standing to make such an application, as he was not formally a party to the proceedings.
The court has an obligation to ensure that the parties to proceedings before it have an opportunity to participate in those proceedings. Before a person can be adversely affected by judicial order, he or she must be afforded adequate opportunity to be heard.[4] These proceedings have been on foot for over two and a half years. There have been two family reports prepared. Mrs D has taken part in both those family assessments. She has filed no additional affidavit material since March of 2004. There is evidence to indicate that the children concerned are upset by these proceedings. That is not surprising given the trauma they have suffered. I was also informed that Mrs D has availed herself of the opportunity to have supervised contact with T and A, as envisaged by the earlier orders. I am satisfied that Mrs D is aware that the proceedings had been set down for hearing on 9 May, 2005. She may however have an explanation as to why she was not able to attend court on that day.
[4] See Taylor v Taylor (1979) 143CLR 1
After bAcing these various factors in mind, I determined that it was appropriate to finalise the proceedings, in Mrs D’s absence. I do however propose giving Mrs D an opportunity to reactivate the proceedings, if she is so minded to do. For that reason, I pronounced the final orders I thought appropriate in this matter on 9 May, 2005.
I indicated that I would give written reasons in support of those orders at a later stage.
As both Mr J and Mr D were in Court on 9 May 2005, I was concerned at the potential for emotional distress to be caused to both of them, particularly Mr J, if I embarked on an ex tempore judgment. I did not wish to publicly revisit the trauma of the past, particularly in the presence of one of the protagonists of that trauma.
I was anxious to avoid such an outcome. For that reason, these brief written reasons have been prepared. They will also serve to inform Mrs D of the outcome of these proceedings.
The evidence
None of the deponents of the various affidavits listed above was cross-examined in these proceedings. Neither Ms D nor Mr R gave any evidence in addition to that which was contained in their respective family reports. Accordingly the evidence in this matter was not subject to any rigorous scrutiny.
a) Mrs D’s case
Mrs D was born at W W, in Central Australia, at some time in the early 1930’s. She identifies as a Kaidich woman. She is the mother of five children, who are all now adult. Besides her own children, she raised three of her grandchildren. She is now widowed.
Mrs D is a devout woman, who does not tolerate drinking or fighting in her home. Sadly, she acknowledges that her son, Mr D D and the deceased mother, had significant problems with alcohol during their relationship. As a result, it is her position that she played a significant role in caring for C, T and A, when they were young.
Mrs D does not have a positive view of Mr J and believes that he has attempted to influence the children against her. She is also concerned that neither Mr J nor his current wife are appropriate persons to teach matters relating to the children’s indigenous heritage and culture to them. She asserts that it is more culturally appropriate for this knowledge to be passed on to the children from paternal members of their family rather than from maternal family members.
In addition, Mrs D asserts that her cultural traditions are different to those of Mr J and his family. She is from the desert area of Central Australia. Mr J comes from B on the Gulf of Carpentaria. She describes Mr J and his family as being “island people”. Clearly she believes that the children in this case are more properly described as “desert children”. As a result, it is Mrs D’s position that she has to teach A the law from his father’s country. In her expression Mr D is “boss” for the children. It is also her view that, as the children’s closest direct female relative, it is culturally mandated that she teach “women’s business” to C and T.
Although she does not explicitly state it in her affidavit, it would appear to be Mrs D’s position that she will not be able to teach the children about their paternal cultural background or take them to corroborees, if contact continues to be supervised at the family contact centre on an indefinite basis. I can understand why this would be so. Regrettably however, Mrs D has provided no up-to-date affidavit material in this regard and did not attend at court on the hearing date.
Ms J D is Mrs D’s granddaughter. She is eighteen years of age. She corroborates Mrs D’s evidence that she (Mrs D) does not tolerate drinking or fighting at her home. She also confirms Mrs D’s evidence that she (Mrs D) is the central figure in a large extended family.
b) Mr J’s evidence
Mr J is sixty two years of age. He has been married for twenty seven years. Currently he is living at the B C. His son A and his daughter I also live at the B C. For obvious reasons, Mr J has an extremely negative view of Mr D and other members of his family. It is his fervent belief that Mr D brought about the death of his daughter, through acts of extreme violence.
He and other members of his family continue to be fearful of Mr D and of the possibility that there will be a violent confrontation with him in future. In addition, he does not believe that Mrs D, an elderly person, has sufficient strength or resolve to prevent Mr D having his own way in respect of the children and having contact with them in spite of Mr J’s objection and the court’s prohibition.
In his affidavit material, Mr J deposes as follows:
“…I oppose the orders sought by the Applicant Paternal Grandmother. The reason for my opposition is that the Applicant Paternal Grandmother was also aware for a very long time of the extreme violence that her son perpetrated against my daughter, and also to and in front of the children. She witnessed the violence on numerous occasions and did nothing to protect either my daughter or her children. There were occasions when Mr D and my daughter, together with the children, were residing with the Paternal Grandmother and whenever there was violence perpetrated she would simply chuck my daughter and the children out onto the street.
…I am therefore concerned that if contact were to occur outside of Centacare, and Mr D came back onto the scene, that the Applicant would simply be unable to protect the children from him. I am unsure of the date of release for Mr D but my wife, son and daughter have reported to me that they saw Mr D at Woolworths Casuarina on or about Saturday 5 February 2005. This causes me great concern.
In addition, the death of my daughter has caused much anger amongst the two families. I am concerned not only that Mr D may do something to the children, or to a member of my family, but also that his extended family may do something to one of us.
I am concerned that there may be “payback” as a result of these proceedings and as a result of the allegations made by my family of what has happened in the past. I do not therefore believe that it is in the vest interests of the children to be placed in any sort of physical proximity out side of the safety zone of Centacare because of these risks.
My prime concern for my grandchildren is to ensure that they are provided a security of home and an upbringing where they give and receive affection, understanding and love, which I believe is essential for them to overcome the obviously traumatic experience of the loss of their mother.
The Applicant is a very old woman who I feel strong sympathies towards to be able to have a relationship with the children, but I feel that she has no capacity whatsoever, either mentally or physically, to protect the children against not just Mr D but any other member of her family that may take strong views against myself or any other member of my family to the children’s disadvantage. It is these circumstances that I consider that for the children’s safety contact has to continue at Centacare.”[5]
[5] See Mr B J’s affidavit of evidence filed 9 February 2005 at paragraphs 18, 27-30
Ms J-L L describes herself as being Mr J’s adopted daughter. She is clearly closely aligned with Mr J and opposed to Mr D. She gave evidence as to an unpleasant incident between herself and Mr D and of being frightened of him. It seems clear that Mr D has been sentenced to a term of immediate imprisonment since the inquest concluded, but I am unaware of the circumstances of this sentence.
Mr J also relied on the findings of the Coroner, Mr C SM, into the circumstances surrounding the death of his daughter. In those findings Mr C found that there was a highly violent relationship between Mr D and the deceased mother. Mr C also found Mr D to be an unreliable witness, who had lied during his evidence before the inquest. Mr C, in his findings, also indicated that, although he was unable to make a positive finding in respect of the case, Mr J and members of his family had no doubt that Mr D had murdered the deceased mother.
Mr C said as follows in his findings:
“The deceased and D had been in a long and violent de facto relationship which ended in early 2001 after D had assaulted the deceased by stabbing her a number of times. D was convicted of aggravated assault and sentenced to imprisonment. A Domestic Violence Order was in force at the time of the deceased’s death restraining D from contact with the deceased. The affidavit sworn by the deceased in support of that application was read during Counsel Assisting’s opening and tendered into evidence. It provides a detailed and graphic account of the relationship and of the deceased’s many attempts to leave it. A copy of the affidavit is attached to my findings. D was the father of three of the deceased’s children.
I am satisfied to the requisite standard of proof that the deceased was with D D at L B shortly before her death. I accept the evidence of K S and his identification of D D. The DNA evidence also is compelling and clearly establishes that D was with the deceased on the morning of her death at L B. I am unable to find whether D D or any other person caused or contributed to the death of the deceased, to do so would be mere speculation. I reiterate that I found D D’s evidence to be unreliable and untruthful. His persistent denial about being with the deceased at L B does him no credit and may be suggestive of a guilty conscience. He has lied in his evidence at this inquest.
It is clear that the deceased may well have been assaulted prior to her death which is evidenced by the four stab wounds and accordingly, I refer the transcript of these proceeding and my findings to the Commissioner of Police and the Director of Public Prosecutions pursuant to section 35(3) of the Coroners Act.
The deceased died from drowning. I am aware that the family of the deceased are the opinion that D D caused the death, as is Senior Sergeant G L (the investigating police detective), however, on all of the evidence I cannot conclude nor exclude such a hypnosis. I leave open a finding as to how the deceased drowned and whether another person or persons were involved.”[6]
[6] See findings of the Northern Territory Coroner, Mr C delivered on 10 February 2004.
The law
The law to be applied in this case is contained in Part VII of the Family Law Act, the part of the Act which deals with children. Section 60B of the Act sets out the principles and objects, which underlie this part of the legislation. An important principle is that children have a right of contact, on a regular basis, with people who are significant to their care, welfare and development. Clearly such people can include grandparents and other extended family members. However, of the utmost importance in determining what are the appropriate arrangements for the care of children, are the provisions of section 65E of the Act. This provides that, in deciding whether to make a particular parenting order, the court must regard the best interests of the child or children concerned, as the paramount or most important consideration.
In determining what orders will best promote the interests of a particular child, the court must consider the various matters set out in section 68F(2) of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters which must be considered according to their relevance to a particular case. Paragraph (l) permits the court to take into account any other fact or circumstance that the court thinks is relevant. This ensures that the infinite variety of individual children’s circumstances can be addressed in any order made by the court. It is the court’s duty to make relevant findings of fact concerning the cases of each of the parties concerned and then apply each of the relevant sub-sections contained in section 68F(2) to those findings in a common sense and practical way in order to ensure that the final orders that are made, result in a situation that will serve the children concerned, best interests. The matters contained in section 68F(2) are as follows:
(a)Any wishes expressed by the child or children concerned and any factors such as the child or children’s maturity of level of understanding that is relevant in the circumstances;
(b)The nature of the relationship of the children concerned with the children’s parents and with other persons;
(c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or from any other person with whom he has been living;
(d)The practical difficulty and expense of the child having contact with people who are interested in the children concerned;
(e)The capacity of parents or any persons to provide for the needs of the children, including their emotional and intellectual needs;
(f)The children’s maturity, sex and background;
(g)The need to protect the children from any physical or psychological harm as a result of being exposed to abuse, ill-treatment, violence or other behaviour;
(h)The attitude to the child and the responsibilities of parenthood as displayed by the relevant parties;
(i)Any issue relating to family violence;
(j)Any applicable family violence orders;
(k)Those orders that are least likely to lead to the institution of further proceedings;
(l)Any other fact or circumstance.
Discussion
The important considerations in this case appear to be the need to strike a balance between the protection of the children from physical and psychological harm, as a result of being exposed to family violence, with the desirability of the children having some significant form of relationship with their paternal grandmother, particularly in the context of their indigenous background.
Given the unusual and disturbing circumstances surrounding the death of the children’s mother and the resulting high levels of antagonism and suspicion existing between the paternal and maternal aspects of the children’s family, I believe that there is a very high possibility of the children being exposed to family violence of an extreme nature, if there is a move away from supervised contact at this stage. In this regard, although Mr R’s evidence is untested, his recommendations appear to be well founded in fact.
I appreciate that I did not personally have an opportunity to assess Mr D himself in these proceedings. There is however evidence before me which indicates that he has a propensity to resort to violence, particularly if intoxicated or angry. He would appear to be an unstable and unsettling influence, so far as each of the children are concerned. Sadly it seems inevitable that the children are aware of what Mr J believes were the true circumstances of their mother’s death. As a result, they are undoubtedly extremely vulnerable children. Mr J is fiercely protective of them. Unfortunately Mrs D did not take an active role in these proceedings. As a result, I am not in a position to assess her ability to protect the children from Mr D. In determining what is the appropriate outcome in these proceedings, I am of the view that the protection of the children, from both physical and psychological harm, is of the utmost importance.
Mrs D is an elderly lady. Recently she was in poor health, which resulted in her admission to the Royal Darwin Hospital. I do not have confidence that she would be able to protect the children from Mr D, particularly if he presented himself at her home and demanded to see the children. Such an occurrence, in my view, is likely to lead to some form of confrontation between Mr D and members of the J family. I cannot discount the possibility of some serious form of “payback”.
I appreciate that Mrs D is an extremely significant person, so far as the children’s indigenous inheritance is concerned. She is possibly the only conduit of significant knowledge relating to their patrilineal family and traditional lands. Although her evidence is untested, I accept that she is an appropriate person to teach C and T “women’s business” and to inform A about his country. I also accept that it is difficult and, perhaps culturally inappropriate, for this knowledge to be exchanged in the context of a family contact centre during a brief period of supervised contact. I am also very well aware that Mrs D has perhaps a limited time in which to pass on this knowledge.
However, these considerations are subservient to the primary need to protect the children from harm. As I have already indicated, I believe that there is a very real risk of the children being exposed to such harm in the future. The situation between the J and D families remains volatile and is likely to remain so for the indefinite future.
As a result, I believe that I must move cautiously in respect of changing arrangements for the care of the children. I also believe that I would be imprudent to disregard Mr R’s recommendations in the case, particularly as those recommendations have not been challenged by Mrs D herself.It is usually desirable that litigation involving children not be unduly protracted. The legislation enjoins me to consider what orders are least likely to lead to the institution of further proceedings. Mrs D has chosen not to play an active role in this present round of proceedings. There may be very good reasons for this. She may feel that she no longer has the strength or resolve to pursue her application. She may be unwell. It is also not beyond the bounds of possibility that she accepts the recommendations made by Mr R.
However her absence from these proceedings makes the possibility of further proceedings highly likely. Notwithstanding this probability, at this stage, I have reached the view that it is desirable for the proceedings to be finalised. I reach this conclusion because I am concerned at the possibility of the children being unsettled if the proceedings continue unnecessarily. However, I consider that justice demands that Mrs D be permitted to re-list the proceedings, after she has considered these reasons for judgment. It may be that she may wish to proffer an explanation as to why she did not take part in the proceedings. The significance of her relationship to the children is not a matter which can be easily discounted.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: C White
Date: 13 May 2005
at paragraphs 20, 29-31
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