Davis v Davis

Case [2007] FamCA 1149


FAMILY COURT OF AUSTRALIA

DAVIS & SPRING [2007] FamCA 1149
FAMILY LAW - Child and parenting orders – Live with – Spend time and communicate with – Equal shared parental responsibility – Equal time or substantial and significant time – Relocation – From the Latrobe valley to the aboriginal homelands of Central Australia – Aboriginal culture – Traditions and kinship – Extended family and others – Best interests of the child born of an aboriginal mother and Anglo Australian father – Indigenous culture – What constitutes a connection? – Balancing the maintenance of emotional attachment with the child’s right to cultural connection – Role of the paternal grandmother – Parenthood – Order made in favour of party who is not parent – Primary and additional considerations – Geographical separation and distance – Practical and financial issues – Professional witnesses – Observations of witnesses – Standard of proof - Cultural experts – Social and community issues
Family Law Act 1975 (Cth) s 4; s 60B(2) and (3); s 60CA; s 60CC(2), (3),(4), (4A) and (6); s 60CG; s 61B; s 61DA; s 61F; s 64C; s65DAA
Evidence Act 1995 (Cth) s140

M & L [2007] FamCA 396 (per Full Court Kay, Warnick and Strickland JJ)
B & R (1995) FLC 92-636; (1995) 19 Fam LR 594
B & F and Ors [1998] FamCA 239 (unreported, 23 February 1998)
P & B [1998] FamCA 765 (unreported, 15 September 1998)

Thomsen & Walsh [2003] FMCAfam 262 (unreported, 7 November 2003)
In re J (a child) (FC), judgment delivered 16 June 2005
Briginshaw v. Briginshaw (1938) 60 CLR 336 at 361-2
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 62 ALJR 70 at 170 – 172
Re: H v Ors (1996) 1 ALL ER 1 at 16
Mazorski & Albright [2007] FamCA 520
Re: C P  (1996) 21 Fam LR 486 at 501
Dennett & Norman [2007] FamCA 57
Rice v Miller (1993) FLC 92-415
Re Evelyn (1998) FLC 92-807 at 85,101
D & F [2001] FamCA 382
Potts & Bims [2007] FamCA 394
U v U (2002) 211 CLR 238
A & A: Relocation Approach (2000) FLC 93-035
C v T [2006] FamCA 1198
Godfrey and Sanders [2007] FamCA 102
M and S  [2006] FamCA 1408
(Goudge) (1984) 54 ALR 514 per Everitt CJ
Sanders (1976) FLC 90-078
N and N (1981) FLC 91-111

“The Best Interests Of The Aboriginal Child In Family Law Proceedings”, published in The Australian Journal of Family Law, 12 AJFL 140;
Davis and Dikstein as expressed in their article “It Just Doesn’t Fit” published in 1997 in 22(2) Alternative Law Journal 64

APPLICANT PATERNAL GRANDMOTHER: MRS DAVIS
FIRST RESPONDENT FATHER: MR DAVIS
SECOND RESPONDENT MOTHER: MS SPRING
INDEPENDENT CHILDREN’S LAWYER:
FILE NUMBER: DGF 111 of 2006
DATE DELIVERED: 28 SEPTEMBER 2007
PLACE DELIVERED: MELBOURNE
PLACE HEARD: MELBOURNE
JUDGMENT OF: YOUNG J
HEARING DATE: 13, 14, 15, 16, 17, 20, 27, 28 & 29 AUGUST 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR PINNER
SOLICITOR…

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Details
AGLC
Davis v Davis [2007] FamCA 1149
Case
[2007] FamCA 1149
Decision Date

CaseChat Overview and Summary

In this matter before Young J, the proceedings concerned the welfare of a child, E, born in October 2004. The parties involved were the child's mother, the child's father, and the child's paternal grandmother. The dispute revolved around arrangements for E's upbringing, including where E would live, the extent of time E would spend with each party, and the nature of parental responsibility.

The court was required to determine several key legal issues. These included the appropriate orders for equal shared parental responsibility, the specific arrangements for E to live with the mother, and the conditions under which the mother and child would be permitted to relocate from Victoria to the Ernabella/Umuwa community. Furthermore, the court had to establish the detailed time E would spend with the paternal grandmother and father, both before and after the relocation, as well as the communication arrangements between E and these parties. The court also considered the standard of proof applicable to the allegations and evidence presented, particularly in light of the seriousness of some matters raised.

Young J applied the principles of the *Family Law Act 1975* (Cth), including considerations relating to Indigenous culture and the concept of equal shared parental responsibility. The court's reasoning involved a careful assessment of the evidence presented, including affidavits and submissions from various individuals, and an observation of witnesses. The standard of proof applied was the balance of probabilities, with the court acknowledging that the seriousness of allegations can influence the strength of evidence required to satisfy this standard, as per *Briginshaw v. Briginshaw* and *Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd*.

The court made comprehensive orders discharging previous orders and establishing equal shared parental responsibility between the mother, father, and paternal grandmother. The child was ordered to live with the mother, with permission for relocation to the Ernabella/Umuwa community under specific conditions. Detailed provisions were made for E's time with the paternal grandmother and father, communication arrangements, changeover procedures, and the exchange of information regarding E's education and medical care. The court also imposed restraints on the consumption of alcohol or illicit substances by the father and alcohol by the mother during specific periods concerning E's care. All extant applications were dismissed, and the Independent Children's Lawyer was discharged.

Orders

Orders of the court

MRS DAVIS

MS SPRING

REASONS FOR JUDGMENT

ISSUES

APPLICATIONS

AFFIDAVITS

SUMMARY OF ARGUMENT

DOCUMENTS PROVIDED TO COUNSEL

SUBMISSION OF INDEPENDENT CHILDREN’S LAWYER

BACKGROUND FACTS

MOTHER’S AGREED PERIODS IN THE LATROBE VALLEY

MOTHER’S AGREED PERIODS SPENT WITH W AND D

PREVIOUS ORDERS

SERVICE OF INITIAL APPLICATION ON MOTHER

INTERIM ORDERS MADE 17 AUGUST 2007

OBSERVATION OF WITNESSES

STANDARD OF PROOF

THE LAW

FAMILY LAW ACT - INDIGENOUS CULTURE

THE CHILD............................................................................................................................ 37

FAMILY LAW ACT – PARENTHOOD AND PATERNAL GRANDMOTHER

THE PATERNAL GRANDMOTHER

FATHER

MOTHER

MS T........................................................................................................................................ 74

MS M...................................................................................................................................... 79

MS A....................................................................................................................................... 86

DR J

MR O...................................................................................................................................... 98

DR K

s60CC(3) ADDITIONAL CONSIDERATIONS

EQUAL SHARED PARENTAL RESPONSIBILITY

EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME

ORDERS

ORDERS

1. THAT all previous orders in relation to the child E (“the child”) born … October 2004 be discharged.

2. THAT the mother, father and paternal grandmother have equal shared parental responsibility for the child.

3. THAT the child live with the mother in the LaTrobe Valley until 1 December 2007 and from that date the mother and the child be permitted to relocate from the State of Victoria (“the relocation”).

4. THAT subject to these orders and for a period of twenty-four (24) months from the date of the relocation the mother and the child live primarily in the Ernabella/Umuwa community and the mother be in substantial attendance with the child.

5. THAT the child spend time with the paternal grandmother and father as follows:

(a) until the relocation:

(i) in each week for a period of three (3) days as agreed and failing agreement from 12.00 noon Sunday to 12.00 noon Wednesday; and

(ii) at such other times agreed between the parties;

(b) following the relocation:

(i) in 2008 and 2009 for periods of fourteen (14) days as agreed in the months of April and October, and thereafter, commencing in the 2010 calendar year in each of the South Australian (Ernabella) first and third term school holidays for a period commencing three (3) days after the conclusion of school until two (2) days prior to the recommencement of school from 12.00 noon on the first day until 12.00 noon on the last day;

(ii) in the long summer school holidays in each year commencing in 2009 for a period of eighteen (18) days from 7th January in each year;

(iii) in the event that the mother visits the LaTrobe Valley for such time as can be agreed between the parties;

(iv) in the event that the paternal grandmother or the father visits Ernabella/Umuwa for such time as can be agreed between the parties;

(v) at all such other times as agreed between the parties.

6. THAT the child communicate with the paternal grandmother and father as follows:

(a) while the mother remains in the LaTrobe Valley:

(i) by telephone as agreed between the parties and failing agreement between 6.00 p.m. and 6.15 p.m. each Wednesday, Friday and Saturday with the mother to initiate the telephone call to the paternal grandmother’s landline;

(ii) at such other times as agreed between the parties.

(b) following the relocation:

(i) by telephone as agreed between the parties and failing agreement between 6.00 p.m. and 6.30 p.m. (times to be set at the location of the child) each Tuesday and on all birthdays, Father’s Day, Christmas Day and special occasions with the mother to initiate the telephone call to the paternal grandmother’s landline;

(ii) at such other times agreed between the parties.

7. THAT all parties use their best endeavours to obtain a form of electronic communication (including but not limited to e-mail and webcam) to enable communication to occur between the child and the paternal grandmother and father and, if so, this is to be in addition to telephone time spent.

8. THAT for the purposes of changeover pursuant to these Orders:

(a) all changeover periods in the LaTrobe Valley occur at a location agreed between the parties and failing agreement at …, Morwell;

(b) following the relocation all April and October, or term school holiday changeovers occur at a location agreed between the parties and failing agreement the Adelaide Interstate Railway Terminal at an agreed time at the front entrance.

(c) specifically for the January period as ordered from 2009 the mother deliver and collect the child to and the paternal grandmother or father collect and deliver the child from …, Morwell at 12.00 noon on the 7th and 25th of that month.

9. THAT if the mother together with the child (following the relocation) enters the State of Victoria at any time the mother must:

(a) notify the paternal grandmother and father of the proposed date(s) and the location of her trip; and

(b) use her best endeavours to organise the child to spend reasonable and proper time with the paternal grandmother and father at such locations and in such manner as may be agreed or be reasonable.

10. THAT all parties keep the others informed of their permanent residential address and all contact phone numbers (including mobile phone services) and notify each of them not less than seven (7) days prior to any proposed change of their permanent residential address and as soon as practicable prior to any change of telephone number (but if the paternal grandmother and father reside together only one of them is required to be notified by the mother).

11. THAT the mother do all things necessary to authorise and instruct the child’s school to provide to the paternal grandmother and the father, at their expense, if any, all school reports usually provided to a parent.

12. THAT the mother do all things necessary to authorise and instruct the child’s school to provide to the paternal grandmother and father, at their expense, if any, all other information as to her education and request that subject to their ability to do so, they speak to the paternal grandmother and/or father by telephone or other electronic means.

13. THAT all parties, as soon as practicable, notify and keep the others informed of any medical or hospital treatment required by the child during the time that she is with them (but it is noted that if the paternal grandmother and father reside together only one of them is required to be notified) and for the purpose of this Order the father, mother and paternal grandmother authorise and instruct the child’s treating medical practitioner or a hospital to communicate any relevant information to each of the other parties.

14. THAT the father be restrained from the consumption of alcohol or illicit substances during those times when the child is in his primary care and in the absence of the paternal grandmother, or during the twelve (12) hour period prior to him spending time with her.

15. THAT the mother be restrained from the consumption of alcohol during all times that the child is living with her and in her sole care pursuant to these Orders.

16. THAT at the written request of the paternal grandmother, the mother do all things necessary to support any application for a Permit for her to enter the APY lands.

17. THAT all extant applications be otherwise dismissed and the proceedings be removed from the list of cases awaiting hearing.

18. THAT the appointment of the Independent Children’s Lawyer be forthwith discharged.

19. THAT liberty be reserved to all parties, upon proper documentation filed and served, to make application in respect of any proper variation of the time spent with and communication orders.

20. THAT pursuant to sections 65DA(2) and 62B 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 Annexure “A” and these particulars are included in these orders.

IT IS CERTIFIED

21. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for all parties.

Background

Background to the litigation

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Evidence

Evidence Before The Court

S140(1) of the Commonwealth Evidence Act 1995 provides that a Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. Sub-paragraph (2) further provides that, without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:(a) the nature of the cause of action or defence; and(b) the nature of the subject – matter of the proceeding; and(c) the gravity of the matters alleged. In Briginshaw v. Briginshaw (1938) 60 CLR 336 at 361-2, Dixon, J. said:“Except upon criminal issues to be proved by the Prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.” Subsequently the High Court said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 62 ALJR 70 at 170 – 172:“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct”. A more recent discussion of the standard of proof to be applied in non-criminal proceedings is contained in the Judgment of Lord Nicholls in Re: H v Ors (1996) 1 ALL ER 1 at 16 where His Lordship stated:“Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more probable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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