Davis v Davis
[2007] FamCA 1149
•28 September 2007
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) Thomsen & Walsh [2003] FMCAfam 262 (unreported, 7 November 2003) “The Best Interests Of The Aboriginal Child In Family Law Proceedings”, published in The Australian Journal of Family Law, 12 AJFL 140; |
| 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 FOR THE APPLICANT: | RUTHERFORD & CO |
COUNSEL FOR THE FIRST RESPONDENT: | MR McGOWAN |
SOLICITOR FOR THE FIRST RESPONDENT: | LITTLETON HACKFORD & D’ALESSANDRO |
| COUNSEL FOR THE SECOND RESPONDENT: | MS SWART |
| SOLICITOR FOR THE SECOND RESPONDENT: | HALE & WAKELING |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | MS BRENNAN |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | O’HALLORAN DAVIS |
TABLE OF CONTENTS
ORDERS
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.
IT IS NOTED
A.THAT the paternal grandmother and father currently reside together and it is expected that they will arrange between themselves the time that each of them is to spend with the child either together or separately.
B.THAT all parties have indicated a preparedness to explore all other forms of electronic communication with the child where it is financially viable to do so.
C.THAT the mother, upon the relocation, will involve the child in various ceremonial and traditional cultural events and during these times they may be uncontactable. The mother must use her best endeavours to then maintain reasonable communication with the other parties.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Young delivered this day will for all publication and reporting purposes be referred to as Davis & Spring
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGF 111 of 2006
| MRS DAVIS |
Applicant Paternal Grandmother
And
| MR DAVIS |
First Respondent Father
And
| MS SPRING |
Second Respondent Mother
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
ISSUES
The child E (“the child”) was born on … October 2004 of a one year relationship of the father and mother. From approximately seven days after her birth the child has lived with her paternal grandmother, initially with the consent of the mother and thereafter pursuant to an interim ex parte order obtained from the Federal Magistrates Court. There is now before this Court a very live dispute as to with whom the child should live, as to what time should be spent and other level of communication had with the other parties and, if the mother is successful in her primary application, whether she and the child should be permitted to relocate to the aboriginal community of Ernabella, in the north of South Australia.
The mother’s case and the future of the child should she live with her is for her to be raised within aboriginal culture and kinship whereby the child will travel to, live in and be educated in other aboriginal communities within Central Australia. Extended family and elders will assist in her physical, cultural and emotional upbringing.
The paternal grandmother, with whom it is proposed that the child will primarily live, and the father intend that she will be raised by them in the LaTrobe Valley, but with an exposure to the indigenous Koori culture of that region.
Communication and ‘time spent with’ orders present very real practical, travel and financial concerns as does the issue of relocation.
This is a very difficult case where the impact and finality of my decision on all issues will substantially redefine the child’s life.
APPLICATIONS
Paternal Grandmother
The application of Mrs Davis was issued in the Federal Magistrates Court on 30 March 2005 and she then sought an order for the child to live with her and have contact with each of her mother and father.
At the commencement of these proceedings and as a requirement of the Court Counsel prepared and submitted, and now marked as exhibit “PG1”, are the orders sought on behalf of the applicant paternal grandmother and which are as follows:
1.THAT the child [E] born … October 2004 live with the paternal grandmother.
2.THAT the paternal grandmother, the father and the mother share the responsibility for the long term care, welfare and development of [the child].
3.That the paternal grandmother have the sole responsibility for the day to day care, welfare and development of [the child].
4.That the father spend time with [the child] as agreed with the paternal grandmother during those times that [the child] is not with the mother.
5.THAT the mother should she remain in the Gippsland area spend time with [the child]
(i)from 10.00 a.m. Sunday to 10.00 a.m. Wednesday in each week commencing 22 August 2007 until [the child] commences school and thereafter from 5.00 p.m. Friday to 5.00 p.m. Sunday;
(ii)for one half of each of the school term holidays including the long summer vacation as agreed between the paternal grandmother and the mother;
(iii) for special days as agreed.
6.THAT the change over for all of the time spent by the mother with [the child] be at …, Morwell.
7.THAT in the event that the paternal grandmother is not successful in her residence application [the child] reside with the father.
8.THAT the time spent by the paternal grandmother with [the child] be as agreed between the father and the paternal grandmother.
9.THAT in the event that the mother is successful in her application then the following orders apply:
(a)on the basis that the mother and [the child] reside in the Gippsland area the paternal grandmother spend time with [the child] as follows:
(i)prior to commencing school from 10.00 a.m. Wednesday to 10.00 a.m. Saturday;
(ii)following the commencement of school from 5.00 p.m. Friday to 5.00 p.m. Sunday on each alternate week;
(b)on the basis that the mother is permitted to relocate to South Australia (Ernabella Community):
(i)in Victoria at the paternal grandmother’s expense and the mother’s expense (shared equally) during both prior to attending school and during school terms on the first term and third term school holidays and for one half of the long summer vacation;
(ii)in South Australia at the paternal grandmother’s expense (solely) at times to be agreed and should there be difficulties in having the time spent in Victoria as provided for in paragraph 9(b)(i) hereof then in South Australia during school holidays.
10.THAT as may be otherwise agreed between the father and the mother where applicable.
Father
The orders sought by the father were documented in his response to the Federal Magistrates Court on 7 March 2005 and they have not been amended in these proceedings. He proposes that each of the three parties to these proceedings share in the parental decision making and responsibility for the child who would primarily reside with the paternal grandmother or, in the alternative, with the father. As to the mother he proposes that her time with the child be supervised, she be restrained from leaving the LaTrobe Valley and there be injunctive orders restraining her consumption of drugs or alcohol prior to any time spent with her daughter.
Mother
The initial response of the mother was filed in the Federal Magistrates Court on 7 September 2005 where she sought final and interim orders for the child to live with her and that she be solely responsible for her day to day care, welfare and development.
An amended response was filed in this Court on 3 April 2007 whereby the additional order was sought permitting the mother to relocate with the child to the Northern Territory.
At the opening of the mother’s case, and with leave of the Court, a more detailed document containing the proposed orders now sought by the mother was filed and served and has been marked exhibit “M1”. The orders now sought on behalf of the mother are as follows:
1.“All previous Parenting Orders be discharged.
2.The child [E] born ..,. October 2004 (‘the child’) live with the mother and she have sole parental responsibility.
3.The mother be permitted to relocate the residence of the child to the Pitjantjara lands in the north of South Australia from December 2007.
4.The child spend time with and communicate with the paternal grandmother as follows:
(a)While the child lives in Victoria, each alternate weekend from 5.00 p.m. Friday until 5.00 p.m. Tuesday, such time to be substantially at the paternal grandmother’s residence, such time to be suspended on one occasion in August/September 2007 to enable the mother to travel with the child to the north of South Australia.
(b)Upon the child relocating, for 7 days in each school term holiday period for the state in which the child lives and for 14 days in January each year, with the mother and paternal grandmother to meet in Adelaide for changeover, unless the mother is required to travel to Victoria for her studies, in which case the mother deliver and collect the child from the paternal grandmother’s home or other agreed meeting point.
(c)At any time when the paternal grandmother wishes to visit the child at the community and the mother facilitate and support the grandmother’s application for a visitor’s permit and visitor’s accommodation.
(d)By telephone on Wednesday in each week between 6.30 p.m. and 7.00 p.m., with the mother and the paternal grandmother to initiate the phone call on alternate weeks; and
(e)Or as otherwise may be agreed between the mother and the paternal grandmother.
5.The father be at liberty to participate in the paternal grandmother’s time with the child at her discretion.
6.The mother authorise the child's school to provide to the father and paternal grandmother, at their expense, copies of school reports, photos and other documents usually disseminated to parents.
7.The mother and father keep one another informed at all times of their residential addresses and contact telephone number(s).
8.The mother and paternal grandmother keep one another informed at all times of their residential addresses and contact telephone number(s).
9.The mother and paternal grandmother keep one another informed of any essential medical information and other information concerning the child’s well being such information to be transferred through the use of a communication book, unless otherwise agreed, or in emergency by phone or message.
10.The mother keep the father informed of any serious illness, accident or hospitalisation of the child.
11.All extant applications be otherwise dismissed and the matter removed from the list of cases pending finalisation.
12.The appointment of the independent children’s lawyer be discharged.
13.Usual orders s62B and s65DA(2)”
It is important to understand, and as counsel for the mother clarified in her final submissions, the mother does seek that the presumption of equal shared parenting responsibility should be rebutted, primarily on the “rather blunt assessment” that she would not want to be out voted by the other two parties on any primary parental decision. That perhaps is a somewhat misguided opinion, or advice given, but the mother’s case was that she would always respect the role of the paternal grandmother and consult with her. A joint parental responsibility order was not required. If such an order was to be made, counsel for the mother adopted the position that it should be jointly with the father only, and not the paternal grandmother. I do find that to be a perplexing submission and likely not to be in the best interests of the child.
AFFIDAVITS
Paternal Grandmother
Mrs Davis relied upon:
§her affidavit filed 23 March 2007;
§the affidavit of Ms S filed 30 May 2005.
Father
The father relied upon:
§his affidavit filed 21 March 2007.
Mother
The mother relied upon:
§her affidavit filed on 7 September 2005;
§her affidavit filed 14 March 2007 and the exhibits thereto;
§her affidavit filed by leave during these proceedings and with the annexures only from the Ernabella Anangu School website;
§the affidavit of Ms T.
Independent Children’s Lawyer
The Independent Children’s Lawyer has filed and relied upon:
§the affidavit of Dr J, psychiatrist, filed 11 May 2007;
§the affidavits of Ms M, forensic psychologist, filed 10 January 2006 and 15 March 2007;
§the affidavit and report of Ms A, cultural consultant, filed 4 December 2006;
§the evidence of Mr O, school principal; and
§the evidence of Dr K, medical practitioner from the Ernabella Community.
SUMMARY OF ARGUMENT
At the outset of the proceedings solicitors for all parties filed a summary of argument and a joint chronology. These documents have been referred to and relied upon in argument but they are not before the Court in evidence and have not been relied upon in determining any matter or fact in issue.
DOCUMENTS PROVIDED TO COUNSEL
At the outset of the case I provided to all counsel copies of the following:
§an article by Stephen Ralph, Director of Family Court Counselling, Darwin, “The Best Interests Of The Aboriginal Child In Family Law Proceedings”, published in The Australian Journal of Family Law, 12 AJFL 140;
§M & L (2007) FamCA 396 (per Full Court Kay, Warnick and Strickland JJ);
§B & R (1995) FLC 92-636; (1995) 19 Fam LR 594 - Full Court (Fogarty, Kay & O'Ryan JJ);
§B & F and Ors [1998] FamCA 239 (unreported, 23 February 1998) per Moore J;
§P & B [1998] FamCA 765 (unreported, 15 September 1998) per O'Ryan J;
§T & W [2003] FMCAfam 262 (unreported, 7 November 2003) per Brown FM.
SUBMISSION OF INDEPENDENT CHILDREN’S LAWYER
At the commencement of the hearing counsel for the Independent Children’s Lawyer advised the Court that she had no recommendation as to the outcome of the hearing and what was then considered to be in the best interests of the child. At the conclusion of the case however, and in written submissions and proposed orders which are now marked as exhibit “ICL5”, the submission was made that the paternal grandmother, father and mother should share equal parental responsibility and that the child should live with the mother in Central Australia and otherwise spend time with her paternal family. The proposed orders otherwise dealt with travel arrangements, specific issues and time to be spent, communication and other practical outcomes. Subsequently, and with the agreement of all counsel an amended document containing updated orders sought, and drawn after the receipt of all submissions from counsel, was delivered to the Court and made available to all other practitioners.
BACKGROUND FACTS
The following background facts are common to all parties:
… 1955 Paternal Grandmother born;
… 1983 Father born;
… 1983 Mother born;1999Mother commences relationship with Mr N;
… May 2001W N born;
2003Mother separates from Mr N;
… April 2003 D N born;
September 2003 Mother and father commence a relationship at Ernabella, South Australia;
September 2004 Mother and father separate;
… October 2004 The child born;
… October 2004 Mother departs Gippsland for the purpose of attending women’s business leaving the child in the care of the paternal grandmother
2 June 2005Order of Federal Magistrate Court, Traralgon Sittings;
July 2005Mother goes to Adelaide to be with her mother until her death;
August 2005 Maternal Grandmother dies in Adelaide and mother participates in ceremonial rituals over a period of approximately two weeks;
9 September 2005 Further Order of Federal Magistrates Court, made at Traralgon;
17 October 2005 First report of Ms M, psychologist;
20 January 2006 Report of Dr J, psychiatrist, as to his evaluation of the mother’s state of mental health;
30 January 2006 Proceedings transferred for hearing in the Family Court of Australia at Melbourne;
27 September 2006 Report of Ms A as to Aboriginal cultural issues;
4 October 2006 Proceedings given priority hearing;
February/March 2007 Father commences and ends relationship with Ms P;
March 2007 Second report of Ms M, psychologist;
13 August 2007 Matter finally listed for a five day trial.
MOTHER’S AGREED PERIODS IN THE LATROBE VALLEY
Following the child’s birth on … October 2004 the mother left her in the care of the paternal grandmother and travelled to Central Australia to be involved in various important cultural ceremonies. Thereafter, and in summary, her travel movements were as follows:
October 2004 Departed for Central Australia
Late November 2004 Returned to the LaTrobe ValleyMarch 2005Returned to Central Australia until May 2005 and at a time when the mother alleged that her safety and wellbeing was threatened by the father and his then conduct
May 2005Returned to the LaTrobe Valley
July /August 2005 Returned to Central Australia for important ceremonial and memorial issues arising from the death of her mother
September 2005 Returned to LaTrobe Valley
June / July 2006 Returned to Central Australia for memorial matters for her late mother and for ceremonies upon the death of her niece
May / August 2007 For a period of 77 days in Central Australia having departed without notice in late May and returning on 5 August
5 August –
13 August 2007 In LaTrobe Valley but no contact with paternal
grandmother or the child
MOTHER’S AGREED PERIODS SPENT WITH W AND D
At my request counsel for the mother prepared a document identifying the various periods of time post October 2004 that the mother spent with her other children. Though the document was subject to some cross examination by counsel for the father the dates and facts recorded herein (and slightly varied from the prepared document) which is exhibit “M2” record those periods:
… October 2004 Travelled with W and D to Alice Springs where picked up by mum L (Ms T) and taken to Ernabella;
late November 2004 W and D stay with mum L in Ernabella while mother returns to Gippsland;
December 2004 Auntie R and cousin J bring W and D to Gippsland;
January 2005 Cousin J takes D back to Ernabella and W stays with mother in Morwell;
March 2005Mother returns with W to Central Australia;
May / June 2005 Mother departs Alice Springs in late May to return, via Adelaide, to Gippsland; W in Alice Springs where she attends kindergarten at Yippirinya and is cared for by … (Uncle M’s ex-partner) during week and goes to the block with Nanna H on weekends. D at Ernabella with cousin J;
Early June 2005 Mother arrives in Gippsland;
July 2005Mother goes to Adelaide where her mother is ill and then to Ernabella and Alice Springs for funeral. Both girls with mother;
August 2005 Mother returns to Gippsland. W back at school in Alice Springs with … and Nanna H and D in Ernabella with mum L and cousin J;
December 2005 Cousin J brings both girls to Gippsland;
Late January 2006 Cousin J returns to Ernabella with D. W with mother in Gippsland;
June 2006Both girls with mother in Alice Springs for funeral;
25 July 2006 Both girls return to Gippsland with mother;
August 2006 Cousin J returns to Ernabella with D. W with mother;
November 2006 Cousin J returns to Gippsland with D;
March 2007 Cousin J returns to Ernabella with W and D. W visits mother’s grandfather in Alice Springs during May;
June 2007Mother travels to Ernabella and Alice Springs to collect both girls;
August 2007 W and D return to Gippsland with mother.
PREVIOUS ORDERS
The initial order was made on 2 June 2005 on the ex parte application of the paternal grandmother to the Federal Magistrates Court at Traralgon and it was ordered, until further order that the child reside with the paternal grandmother and that she have responsibility for her care, welfare and development.
On 9 September 2005 orders were made in the Federal Magistrates Court and the paternal grandmother and the mother were represented, though the father elected not to appear. Those orders appointed an Independent Children’s Lawyer and otherwise consent orders were made whereby the child was to have contact (as it was then known) with her father as agreed and otherwise contact with her mother at a supervised contact centre, .., in Morwell on two occasions per week and on the child’s birthday. The psychologist’s family report to be prepared by Ms M was then ordered.
The matter was again before that Federal Magistrate on 2 December 2005 when orders were made for holiday period contact to the father, subject to the mother’s time to be spent with the child and otherwise both parents were required to submit to a supervised drug screen procedure.
On 30 January 2006 before the same Federal Magistrate, but at Dandenong, orders were made by consent specifying the mother’s contact with the child, fixing a venue for changeover and then adjourning the proceedings to the Family Court of Australia for further hearing.
In summary then, and since the institution of proceedings more than two years ago, there has been no further interim or other defended hearing or any other order made by the Court on the merits of the case, save where there were consent orders made in circumstances that did not facilitate any investigation by the Court of the merits of the case. The circumstances and outcome of the order made by consent on 9 September 2005 were somewhat unusual and placed the mother at a very significant disadvantage given her cultural background and, on my understanding of the facts and events, placed her in a most unfortunate and unwarranted circumstance of being subjected to supervision and minimal time with the child. I regard this as an order to which the mother should then not have consented.
SERVICE OF INITIAL APPLICATION ON MOTHER
The proceedings before the Federal Magistrates Court of Australia at Traralgon on 2 June 2005 were commenced on an ex parte basis. The mother had left Victoria in March 2005 and for the balance of that month and throughout April and May was residing in Alice Springs or the Ernabella Community. I have been referred to and have read the affidavit of a law clerk, Ms S, filed 30 May 2005, and the annexure thereto. I accept that there was a very reasonable effort undertaken to serve the mother with the initiating application.
The mother’s evidence was that she did hear by word of mouth of the proposed Court action prior to the 2 June 2005 return date and she was actually on route to Victoria, and in Adelaide on that date. She was not represented at the hearing and subsequently was able to arrange a solicitor to act for her through a local family.
Given the significance and effect of the ex parte order this matter should not have been adjourned for three months. There most certainly should have been an opportunity provided in the order for the mother to return the matter to Court at the earliest opportunity, which would have been in the month of June 2005. I am not critical of the solicitors acting for the paternal grandmother but the very unfortunate consequence of that order and all of the events thereafter is that for a period now in excess of two years there has been no consideration by the Court of that interim order and thus the welfare and best interests of the child have not been independently considered. The outcome is all the more concerning as the interests of the child were to be paramount having regard to the carefully prepared and detailed first report of Ms M filed 10 January 2006 and before the Federal Magistrates Court. That report should likely have ensured very different ongoing interim orders where the child enjoyed appropriate time spent with and communication with all the relevant adults in her life.
I record the submission of Mr Pinner that the mother and her solicitors in her initial affidavit filed by leave on 7 September 2005 did not otherwise highlight and sufficiently argue or make issue of the lack of service or more particularly of the substantial interim orders made contrary to her interests and, as she would argue, the best interests of the child.
INTERIM ORDERS MADE 17 AUGUST 2007
The matter was part heard and not concluded before me on Friday 17 August 2007 and on that date I made an interim order for the mother to spend time with the child on a continuous basis from 10.00 a.m. Saturday 18 August 2007 until 10.00 a.m. Friday 24 August 2007 (inclusive) with her case to return to Court before me on Monday 27 August 2007.
On the resumption of the hearing counsel for the paternal grandmother initially sought to raise certain issues which were said to arise out of the interim orders. On instructions however he did not proceed with that application. The following day however counsel for the father, whose client had then concluded his cross examination, sought to adduce evidence on two particular alleged complaints made by the child in that:
(i)she complained of a sore ear and had claimed that she was hit by her mother; and
(ii)she was upset when she was about to be bathed and was terrified of “the mouses”.
At a time before I ruled whether additional evidence would be called as to the making of these complaints and any response thereto Ms Swart advised the Court that the paternal grandmother had taken the child to the local doctor, when returned by the mother, and had a blood test performed for, among other purposes, an investigation of syphilis. A medical certificate had been provided by counsel for the paternal grandmother to all other parties showing a “nil result”.
These issues and complaints could have opened up any number of issues but, on balance, I adjudged none of them to be of sufficient weight to warrant a further extension of the hearing given that all of the parties had then concluded their evidence.
The issues do highlight the lack of communication between the adults in this case. Ultimately only counsel for the father sought to persist and raise these issues and each of the other three legal representatives did not support a further calling of evidence or reopening of the case.
I delivered a brief extempore judgment concluding that it was not in the best interests of the child to further pursue these matters and I declined to permit the calling of any evidence.
OBSERVATION OF WITNESSES
I have had what I consider to be in this case the very real benefit of observing the mother, father and paternal grandmother in giving their evidence on oath and in the courtroom, their demeanour, behaviour and character and also when they were cross‑examined. This observation of the parties and also their witnesses has been of very real assistance in formulating appropriate orders. Those observations are acutely available to a trial judge and the legal authority for such a position is that part of the Judgment of Kirby J in Minagall v Ayres (1966) SASR 151 at 154 per Hogarth J; see also Government Insurance Office of New South Wales v Bailey(1992) 27 NSWLR 304 at P313:
“By conventional theory, the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process. They normally provide the primary decision-maker a distinct advance which controls, and even limits, the exercise by the appellate court of its statutory functions in an appeal by way of re-hearing: see Owners of Steamship Honestroom v Owners of Steamship Sagaporack [1927] AC 37 at 47; Jones v Hyde (1989) 63 ALJR 349 at 351; 85 ALR 23 at 27; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178ff.”.
I have had the significant benefit of hearing all of the evidence in its entirety, of reading carefully all of the affidavits, the exhibits to the affidavits and the other exhibits in the proceedings. I have reflected upon and have weighed all parts of the individual testimony against the balance of all evidence. I again stress that, in this case, my court observations of the parties were of very real benefit and importance.
The unique role and observations of a trial Judge have very recently been highlighted by the House of Lords, Appellate Committee, in the case of In re J (a child) (FC), judgment delivered 16 June 2005 and I refer to this opinion to support my observations in this case.
In paragraph 4 and paragraphs 10-12 (inclusive) of the Judgment of Baroness Hale of Richmond in that case the role of the trial Judge in the evaluation of oral evidence was considered and it was there stated that:
“10.The Court of Appeal appears to have intervened on the basis, first, that the judge’s conclusion on the risk was not justified by the evidence and second, that he had given it too much weight in his overall conclusion. Yet the assessment of the risk depended entirely on the judge’s evaluation of the father’s present intentions and likely future behaviour and its impact upon the child. There was objective evidence of the risk in the fact that the father had made the allegations in writing and then withdrawn them when he saw that they were damaging rather than helping his case. Whether he might do so again depended crucially on the judge’s evaluation of his oral evidence. The judge was the only person who could do this. He concluded that, while the father was sincere in his current intention not to raise such allegations again, there was a serious risk that if disputes arose in future, as they might easily do, he would resurrect them. These were findings of credibility and primary fact with which, for all the reasons explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, at pp 1372-3, an appeal court is not entitled to interfere”.
STANDARD OF PROOF
The appropriate standard of proof that I have applied is the civil standard, namely the balance of probabilities. The more serious that the matter or allegation was, or its importance in this case, then I have more strictly examined the level of proof required and that was more particularly so in respect of some of the more controversial disputed facts.
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”.
The civil proof therefore requires “a reasonable satisfaction” following a search for the truth and an evaluation of evidence adduced having regard to both statute and case law and in the context of the respective power or capacity of a party to produce or counter such evidence (Vetter v Lake Macquarie City Council (2001-2002) CLR 439 at 454).
The law requires that satisfaction be on a level of probability not certainty. I approached the determination of issues of proof on the basis that I could be fairly and properly satisfied of any alleged fact before accepting same. Conjecture or suspicion is not sufficient, as the proof of the fact must be both rational, reasonably open and likely. In this case there are starkly different versions of events. All of the parties gave evidence in direct contradiction, one to the other. I intend to make specific findings on contested matters where I am able to do so on the evidence and to the required level of satisfaction. In other instances it may be that, whilst I have a very real or likely suspicion I cannot conclude a finding. I will examine these factual contests throughout these reasons for judgment.
THE LAW
S60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that the Court, in deciding whether to make a particular parenting order in relation to a child, must have regard to the best interests of the child as the paramount consideration.
The objects of and principals underlying Division 7 of the Act and its amendments from 1 July 2006 are to ensure that the best interests of children are paramount and are fully and wholly considered by the Court in determining where and with whom a child shall live and orders to spend time with or communicate with adults.
As is provided for in s60B of the Act those objects are:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
Sub-paragraph (2) thereof highlights the principles underlying those objects and they are said to be (except when it would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
As part of the 2006 amendments to the Act, introduced by Act 46 and operative from 1 July 2006, the Parliament inserted a new sub-clause (3), directing the attention of the Court to its approach and interpretation of the right of children to enjoy culture, as provided for in the newly inserted sub-paragraph (e) above. The language of this legislation is identical, in all ways, to the then introduced sub-section (6) to s60CC. Thus the rights of an aboriginal child to enjoy his or her aboriginal culture is therefore enshrined as a principle within the objects of the legislation and also as an additional consideration in determining what is in the best interests of an aboriginal child.
I have had specific regard to all of these objects and their underlying principles. There are however cultural, lifestyle and very real financial and practical difficulties, on the facts of this case that may, of necessity, over-ride or modify those general objects. Each of the parents and paternal grandmother, and their extended family members perhaps have only a future limited opportunity because of travel, distance, cost and cultural issues to spend time with and communicating in a meaningful way with each other. I have included, in detail, within this judgment those objects and principles of the Act so they can be read, considered and understood by each of the families and perhaps they may be helpful in understanding their primary obligations to the child.
Sub-paragraph (e) requires that children “have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture)” and that highlights the difficulties of the case in that the child should be entitled to enjoy both the aboriginal culture and traditions of her mother and the white Angelo Australian culture and traditions of her father and his family within the LaTrobe Valley. The legislation gives to a child, as a principle and also as provided for as an additional consideration in determining what is in their best interests, a right to enjoy their aboriginal culture with their own people, that is with people who share that same culture. On the facts of this case and with the child having not been exposed whatsoever to that culture within her mother’s homelands that, and other legislative provisions, do present a very difficult task to the Court. The distance and practical difficulties and the gulf in understanding between all relevant adults is such that it is almost impossible for the Court to make orders which will offer the child all of her rights and opportunities in life. On balance and if the child lives with her mother there will be some level of restricted interaction with the white community and their culture but almost certainly if the child resides in the LaTrobe Valley she will not have any meaningful or timely opportunity to engage in, learn and respect the traditional culture of her mother’s tribe and homelands of the Western Arrernte and Central Australia. The importance therefore of “culture” as one of a number of stated principles must, of necessity, be balanced in the wider context of her best interests.
A Court is required to determine what is in the best interests of the child by a careful and meaningful evaluation of the primary and additional considerations as are set out in s60CC of the Act and these are identified as two primary considerations and a number of further and additional considerations, inclusive of sub-paragraph (h) thereof which provides particularly for an aboriginal child, their right to enjoy their own culture and share that with their own people and the impact of any proposed parenting order would have upon that right.
The primary considerations provided for in s60CC(2) are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I have throughout this Judgment carefully considered each of these primary considerations. I accept that they are fundamental in determining an order to be made in the best interests of the child. Though sub-paragraph (a) restricts the term “meaningful relationship” to both parents I have intentionally, and in the context of my subsequent discussion of the law of parenthood as it related to the paternal grandmother, extended my primary considerations to include that person who has had the primary and meaningful relationship with the child throughout her life.
Meaningful Relationship
In Mazorski & Albright [2007] FamCA 520, Brown J gave thorough consideration to the definition of “meaningful relationship”. Her Honour stated as follows:
18.“In a subsequent judgment, M & W [2006] FamCA 1414, Faulks DCJ referred briefly to the definition of “meaningful relationship” saying (at para 35):
The question of what constitutes in the circumstances a meaningful relationship is one not defined by the Act. The definition of substantial time with a parent is one that relates to significant times, rather than to the amount of time, and does not provide any particular assistance in determining what a meaningful relationship is.
In [H v M] [2006] FamCA 1071 Strickland J touched on the meaning of “a meaningful relationship” when he said, at para 101:
“There is no issue here that a meaningful relationship with a mother and the father will benefit the child. The child will of course live with the mother and spend time with the father, and although the dispute centres around the extent of the time that the child should spend with the father, that alone does not determine whether there will be a meaningful relationship or not. Other important factors include how the time is spent and the input of the parent during that time.”
19.The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new section 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
“The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.”
20.Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
21.At para. 128 discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The Government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
…
23.The New Shorter Oxford English Dictionary on Historical Principles (Clarendon Press, Oxford, 1993) defines ‘meaningful’ as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. ‘Meaning’ is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning).” A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive.” These definitions are repeated and further fleshed out in the Oxford English Dictionary (Second Edition, Clarendon Press, Oxford 1989). It defines “meaning” (“in generalised use”) as “significance”. The examples provided take the matter no further.
24.The Macquarie Dictionary (Fourth Edition, Macquarie, 2005) defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
25.What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant”.
I likewise have evaluated the past, present and most importantly the future relationships which are and will be of importance, significance and value to the child. I specifically find, as between parents that the best interests of the child require her to develop and maintain a meaningful relationship with her mother and in the foreseeable and long term future that relationship will be more constructive, meaningful and appropriate to her than a relationship with her father alone.
The additional considerations are identified in s60CC(3). It is agreed by counsel that the child is not of an age to express any views and there is no relevant evidence of any family violence applicable to the child, or currently to a member of her family, and I am therefore asked to leave aside any consideration of sub-sections (j) and (k) thereof.
I observe that the need to protect the child from any violence is a primary consideration within sub-paragraph (2) (b) and otherwise the term “family violence” is defined in s 4 of the Act and is specifically an issue to be considered within s60CG and any order now made must not expose a person to an unacceptable risk of family violence. I have had particular regard to those issues.
Each of the remaining relevant additional considerations of s60CC have been evaluated by me throughout the judgment and in my findings on evidence and otherwise in summary and they very much form part of the fabric of the orders that I have pronounced.
FAMILY LAW ACT - INDIGENOUS CULTURE
In s4 of the Act are contained the following definitions:
Aboriginal Child means a child who is a descendant of the aboriginal people of Australia.
Aboriginal … culture in relation to a child:(a)means the culture of the aboriginal … community or communities to which the child belongs; and
(b)includes aboriginal or … lifestyle and traditions of that community or communities
Part VII of the Act governs the law in relation to children. I have previously highlighted s60B(2)(e).
Section 60B(3) provides:
(3) For the purposes of sub-paragraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
Section 60CC(3) lists the additional considerations which the court must take into account in determining the best interests of the child and sub-section (h) provides one such consideration:
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) 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
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Section 60CC(6) provides:
(6)For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
The importance of culture in assessing the best interests of an indigenous child is afforded special attention in the Act because of the unique needs and difficulties faced by these children throughout history and at the present time. The Full Court elaborated on this in In the Marriage of B and R (1995) FLC 92-636 stating at 82-396:
“It is not just that Aboriginal children should be encouraged to learn about their culture, and to take pride in it in the manner in which other children might be so encouraged. What this issue directs our minds to is the particular problems and difficulties confronted throughout Australian history, and at the present time, by Aboriginal Australians in mainstream Australian society. The history of Aboriginal Australians is a unique one, as is their current position in Australian life. The struggles which they face in a predominantly white culture are, too, unique. Evidence which makes reference to these types of experiences and struggles travels well beyond any broad ‘right to know one's culture’ assertion.”
The Full Court in that case considered the literature on the experience of indigenous children and noted that it contained “constant themes” which were identified, at page 15, as follows:
“A.In Australia a child whose ancestry is wholly or partly indigenous is treated by the dominant white society as "black", a circumstance which carries with it widely accepted connotations of an inferior social position. Racism still remains a marked aspect of Australian society. Daily references in the media demonstrate this. Aboriginal people are often treated as inferior members of the Australian society and regularly face discriminatory conduct and behaviour as part of their daily life. This is likely to permeate their existence from the time they commence direct exposure to the outside community and continues through experiences such as commencing school, reaching adolescence, forming relationships, and seeking employment and housing.
B.The removal of an aboriginal child from his/her environment to a white environment is likely to have a devastating effect upon that child, particularly if it is coupled with a long term upbringing in that environment, and especially if it results in exclusion from contact with his/her family and culture.
C.Generally an aboriginal child is better able to cope with that discrimination from within the Aboriginal community because usually that community actively reinforces identity, self-esteem and appropriate responses. Racism is a factor which aboriginal children may confront every day. Because non-aboriginals are largely oblivious of that, they are less able to deal with it or prepare aboriginal children for it.
D.Aboriginal children often suffer acutely from an identity crisis in adolescence, especially if brought up in ignorance of or in circumstances which deny or belittle their Aboriginality. This is likely to have a significant impact upon their self esteem and self identity into adult life.”
The Act states that in order to promote the best interests of an aboriginal child and to allow them to fully develop their identity and self-esteem the child must be afforded the opportunity to maintain a connection with their culture, to enjoy their culture with others who share that culture, to develop a positive appreciation of that culture and to explore it to its full extent. This reflects Article 30 of the United Nations Convention on the Rights of the Child, to which Australia is a signatory and which states:
“In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.”
In an article entitled “The Best Interests of the Aboriginal Child in Family Law Proceedings” and published in (1998) 12 Australian Journal of Family Law 140, Stephen Ralph states at 145:
“The significance of this connection to culture in such cases rests in the child's potential need for support from an Aboriginal parent or carer and other Aboriginal people in dealing with the complex issue of what it is to be an Aboriginal child growing up in white society. Although this might not be an immediate and vital concern in considering the needs of an infant child, in the long term it is very likely to be a crucial factor influencing the child's passage through adolescence and later adjustment as an adult.” (my emphasis)
Both the Convention and the learned articles in evidence therefore highlight the foreseeable and long term importance of the child’s passage through adolescence and later adjustment in life as an adult. I have therefore carefully evaluated the need of the child to find and understand her identity over her developing years and to best understand what culture and society, on the particular facts of this case, will best provide for her physical and emotional security, development and wellbeing.
What Constitutes a Connection?
In considering sub-s 60CC(3)(h) and (6), the question then arises of what constitutes a child’s “connection” with his or her culture.
Sub-sections 60CC(3)(h) and (6) were introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the 2006 amendments”) and the full impact and importance of these new provisions are yet to be considered in detail by the Full Court.
In B & F and Ors [1998] FamCA 239, Moore J considered the scope and meaning of the term “connection”. At pages 29-30 her Honour stated:
“As I see it, the requirement to maintain a connection to their lifestyle, culture and traditions involves an active view of the child’s need to participate in the lifestyle, culture and traditions of the community to which they belong. This need, in my opinion, goes beyond a child being simply provided with information and knowledge about their heritage but encompasses an active experience of their lifestyle, culture and traditions. This can only come from spending time with family members and community. Through participation in the everyday lifestyle of family and community the child comes to know their place within the community, to know who they are and what their obligations are and by that means gain their identity and sense of belonging.” (my emphasis)
Stephen Ralph in his article (supra), which was published prior to the 2006 amendments, favourably discusses the views of Davis and Dikstein as expressed in their article “It Just Doesn’t Fit” published in 1997 in 22(2) Alternative Law Journal 64. At page 141 Ralph says:
“…Davis and Dikstein believe that the terminology ‘to maintain a connection to culture’ denotes a more active view of the child's need to participate in Aboriginal lifestyle, culture and customs. According to this view the child's need to maintain a connection to culture goes beyond a simple need for information and knowledge to encompass an active experience of the lifestyle, culture and traditions of Aboriginal people. This experience of Aboriginal culture can only be afforded to the child if they are able to have, at the very least, direct physical contact with their Aboriginal family and kin.”
The 2006 amendments strengthened the language of the provisions in relation to the cultural needs of indigenous children. They introduced a specific right of the child to, inter alia, “explore the full extent” of his or her culture and “to have the support, opportunity and encouragement necessary” to do so. A child of aboriginal heritage also has the right to “develop a positive appreciation of that culture”. The previous legislation required the Court to consider “the need” of an indigenous child to maintain a connection with his or her culture. By comparison, the new language creates a far greater imperative for the Court to give consideration to issues of culture. Certainly, the 2006 amendments imbued the notion of “connection” with a stronger and more active meaning.
On the evidence of this case I was therefore required to determine what is in the child’s best interest and in so doing understand and implement an object of the Act and the right of the child, as an additional consideration, to “fully explore and develop a positive appreciation of her culture”.
I accept the wisdom and learning that as a part aboriginal child, born of a white father, she nevertheless is an aboriginal child and has such rights and cultural entitlements. The duty upon the court is to correctly determine, both at present and on a long term basis, her best interests. This is an exceedingly difficult task.
There is no specific emphasis within the Act upon Anglo Australian history and culture. The child has been exposed to almost three years of life in the suburbs and with the citizens of Morwell and of the LaTrobe Valley. The circumstances of her recent involvement in the culture of the Indigenous peoples of Gippsland is largely foreign to and cannot be substituted for her Central Australian and Anglo Australian heritage. It is these very different cultures, environments, traditions and future opportunity and all of the real and practical issues of this case that do not easily lend themselves to a situation where the child can or should be part of and grow up within an environment where she is exposed to and benefits from both families and cultures. Therein lies a very real conflict because a child generally should enjoy, or have the opportunity and exposure to, each of its extended families, their lifestyle and environment.
Balancing the maintenance of emotional attachments with the child’s right to cultural connection
Stephen Ralph identified a key tension which features in the determination before me, that is the “maintenance of stable attachments versus the child’s need for cultural affiliation”. Whilst, Ms M found that the child has primary attachments to both her paternal grandmother and her mother, the child has spent the overwhelming majority of her life with the paternal grandmother and disrupting the bond between them would likely be a significant and traumatic event. Denying the child’s right to maintain and enjoy a connection with her indigenous culture and to properly know and grow up with her mother and maternal family, however, would also be a significant loss for her future wellbeing and life. These conflicts I have considered and balanced.
At page 141, Ralph observes that:
“This issue in nearly all cases… is resolved by adherence to the view that the child’s need for stable attachment generally out-weighs consideration of the child’s need for cultural affiliation. Judicial officers and court counsellors accept the proposition that a child's healthy socio-emotional development requires a stable, continuous, secure and affectionate relationship with at least one parent or adult care-giver. It is also generally accepted that disruption to such an attachment will have a negative developmental consequence for the child.”
At 143, Ralph says:
“While the achievement of stable and affectionate attachments is a highly important developmental goal for all children, the achievement of a coherent sense of identity based upon cultural affiliation is equally important.
…
The process of cultural affiliation is highly important in the child's long-term development, yet in the past it has not been accorded the status that it merits in decision-making. Often decisions have been justified on the basis of meeting the child's need for "emotional stability" without due consideration being given to the detrimental long-term consequences that follow on from a failure to adequately consider the needs of the child in the appropriate socio-cultural context”.
On the basis of these two passages I again have evaluated the secure present attachment of the child to her paternal grandmother with the cultural affiliation and the future that is best for her. I specifically have carefully looked to the long term consequences of my decision.
Ms M, in her viva voce evidence and as I have evaluated hereafter, noted that the psychological theory in relation to attachment is based on studies of Anglo-European families and did not address the experiences of indigenous families or those families involving multiple primary carers.
Ralph argues, at 143, that the value placed on a child’s emotional attachment to a primary carer:
“is steeped in the traditions of western psychology, with its emphasis upon the individual, and based upon modern Anglo-European notions of social and family organization. The prominence of psychological theory and clinical practice based upon the study of small family groups and individual needs runs counter, however, to an effective understanding of the collectivist nature of Aboriginal family life. … [In contrast], Aboriginal people are likely to argue that children have the ability to effectively attach themselves to many carers in the course of their ‘growing up’. In many indigenous cultures multiple, serial attachments are the norm and are not regarded as necessarily harmful to the child's development and long-term adjustment.
The Aboriginal perspective is based upon a collectivist view of family and social life that sees responsibility for the growing up of children invested in many people. According to this view children come to trust in the capacity and commitment of a multitude of people to care for them and nurture them through childhood and into adulthood. By this means children come to take their place in Aboriginal society where responsibilities and obligation to family and kin are deeply rooted and pervasive.
From this perspective the disruption caused to a child’s primary attachment, for example, is out-weighed by the benefits arising from the child’s exposure to a broader and deeper network of family and kin to whom the child will eventually form strong attachments. The implicit expectation is that children will grow up with maximum exposure to their cultural heritage and take their place within Aboriginal society. From the stand-point of a traditional Aboriginal family living in a rural or remote community this change would ensure the family’s spiritual and ceremonial obligations to the country would be maintained. In this setting cultural and family considerations are highly important in determining the child’s best interests. For Aboriginal people a desirable outcome of such deliberations is the preservation and promotion of Aboriginal culture, particularly its transmission to the next generation.” (my emphasis)
The concept of a broader and deeper family network and kinship is at the heart of the mother’s case but again I have carefully assessed these issues in the context of the primary and other additional considerations. No one fact by itself is over-riding of all other issues. With a different weighting and probative value they have all been included within my decision making process.
The direction provided by the Full Court in Re: C P (1996) 21 Fam LR 486 at 501 was that in a case involving a different culture and upbringing of indigenous parties, one with a Tiwi Island background and the other with a Torres Strait Island background the Court must have:
“An eye to the significance of differences between aboriginal groups and, … it was incumbent upon [the trial Judge] to take into account and balance an aboriginal environment on the one hand and a specific aboriginal Tiwi environment on the other”.
In M & L (Aboriginal Culture) [2007] FamCA 396, both parents had an indigenous background but their culture and traditions were very different. Their first languages were different and thus the life, upbringing and experiences that they would each offer to their teenage children were significantly separate and distinct. It was with that background that the Federal Magistrate and thereafter the Full Court of the Family Court undertook an assessment and analysis of the pros and cons for each of the children living within a particular Aboriginal community, balanced with the individual proposals of the parties and the best interests of the children.
In the Full Court, Kay J pronounced:
“42. In this case the prospect of the children being able to being [sic] frequently exposed to the company and culture of the absent parent is made all the less likely by the tyranny of distance and the significant lack of resources in either household. The Court must accept that these children cannot be maximally exposed to two different lifestyles and cultures. It needs to choose in which parent’s care the interests of the children will be best advanced. It must do so by acting upon the evidence available.”
His Honour’s statement is equally applicable to the facts of the present case and having heard all of the evidence I conclude that on any long term basis the child cannot be maximally exposed to two different lifestyles and cultures. In her best interests a decision must now be made, on the available evidence, as to what residence and environment and with whom she must now live.
The child’s rights to enjoy and maintain her culture are one consideration in addition to many others. The Act requires that these rights must be afforded real and significant weight. They are, however, to be properly balanced with all of her rights and all of the facts and issues which impact upon her welfare, upbringing and future life and this is what I have done and how I have reached my decision.
Section 61F
Division 2 of Part VII deals with parental responsibility. Section 61F provides:
In:
(a) applying this Part to the circumstances of an Aboriginal or Torres Strait Islander child; or
(b) identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;
the court must have regard to any kinship obligations, and child‑rearing practices, of the child's Aboriginal or Torres Strait Islander culture.
Section 61F was introduced in Act No 46 of the 2006 amendments (Sch 1, Pt 1 [14]). It is somewhat curious to understand the positioning of this section within this Division of Part VII. Kinship, as a concept and in its application, is relevant to the care, upbringing and best interests of a child. It is not limited to issues of parental responsibility. That is clear by the introductory words to sub-paragraph (a) where it is said to be “applying this part”. That is intended to be a reference to all of the children’s matters in Part VII and not merely to parental responsibility issues rather than, for example, the best interests of the child.
The mother’s proposals in this case for the future upbringing of the child are significantly dependent upon kinship and the involvement of her extended maternal family and respected elders in the care, education and teaching of culture and custom to her daughter. They are issues that are integrally part of my determination of what can be proved to be in the child’s best interests.
The Explanatory Memorandum to the 2006 amendments states:
“138.Item 14 inserts new section 61F into the Act. It provides that, in applying Part VII to the circumstances of an Aboriginal or Torres Strait Islander child or identifying a person/s that has or may exercise parental responsibility for such a child, the court must have regard to any kinship obligations and child-rearing practices of Aboriginal and Torres Strait Islander culture that are relevant to the child. The definitions of the terms ‘Aboriginal child’, ‘Torres Strait Islander child’ and ‘Aboriginal or Torres Strait Islander culture’, are inserted into the general dictionary in sub-section 4(1) of the Act by items 1, 2 and 6 of Schedule 1.
New section 61F implements recommendation 1 of the Family Law Council’s December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze. The purpose of this provision is to ensure that the unique kinship obligations and child-rearing practices (such as the involvement of extended family) of Aboriginal and Torres Strait Islander culture are recognised by the court when making decisions about the parenting of an Aboriginal or Torres Strait Islander child. This provision is consistent with other amendments to facilitate greater involvement of extended family members in the lives of children.
RELOCATION
The mother’s proposal is that if the child is to live with her she would then relocate her residence to Ernabella and accordingly the issue of relocation is wholly bound up within the question of with whom the child should live. The ultimate requirement is that these difficult issues be determined in the best interests of the child.
This matter was argued on the premise that I may order either that the child live with the paternal grandmother and the father in Victoria or with the mother in Central Australia. The mother’s unwavering proposal was that if I ordered the child live with her she would relocate the child’s residence to Central Australia, albeit after some months.
The approach to be followed in relocation cases has been well established. The High Court in U v U (2002) 211 CLR 238 affirmed the Full Court’s approach as set out in A & A: Relocation Approach (2000) FLC 93-035 that the Court must weigh up the parties’ competing proposals, having regard to what is now s60CC as well as other relevant factors such as the relocating parent’s right to freedom of movement, with the best interests of the child being the “overarching issue” or paramount consideration. Further, in A & A (supra) the Full Court held that the Court is not bound by the parties’ proposals and if these proposals are inadequate to meet the best interests of the child then, subject to the rules of procedural fairness, the Court may impose a different regime which would better cater to the child’s best interests.
The 2006 amendments place greater emphasis on the importance of both parents having substantial involvement in their children’s lives. In C v T [2006] FamCA 1198, an international relocation decision, Strickland J held that the 2006 amendments did not alter the established approach to be taken in relocation cases. His Honour noted, however, that the presumption of equal shared parental responsibility and the object, principles and factors to be taken into consideration in determining what is in the child’s best interest may well affect the outcome of individual relocation cases. At paragraph 223 his Honour stated:
“It is imperative that these objects, principles and considerations (in s60B) be given appropriate weight, but they do not raise a presumption against relocation, and the best interests of the child remains as the paramount consideration.”
In Godfrey and Sanders [2007] FamCA 102, an appeal of a decision by a Federal Magistrate preventing the mother from relocating from country Victoria to Brisbane, Kay J held that the 2006 amendments do not impose an onus of proof on the relocating parent and that the best interests of the child remain the paramount consideration.
Kay J referred to the decision of Dessau J in M and S [2006] FamCA 1408. At paragraph 32, Kay J found no reason to depart from Dessau J’s conclusions that:
“whilst the various provisions of the Act, as amended, emphasise the importance of maintaining an appropriate relationship between a child and its parents, the best interests of the child remain the paramount consideration.”
Observing that the amended Act now requires the Court to consider, as a primary consideration, the benefit to the child of having a meaningful relationships with both parents, Kay J said at paragraph 33:
“…it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.”
His Honour then concluded at paragraph 36:
“Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
I have previously considered the concept of a “meaningful relationship” and it is one of significance and importance to the child and of adding value to her life. It is a difficult concept to apply on the facts of this case.
Having regard to the best interests of the child the relocation outcome must be consistent with the decision made as to where the child should live.
I have weighed up all of the proposal, and considered all other options and I conclude that the mother should be permitted from December of this year to relocate with the child to Ernabella and then live within Central Australia.
I have considered the various alternatives which included the mother being required to live permanently in the LaTrobe Valley and I find that was not an appropriate outcome as it significantly denied the child of her culture and kinship, it was not in her best interests and placed the mother in a position that was wholly unrealistic and inappropriate. In like manner the alternative for the paternal grandmother or the father to live in Ernabella is unrealistic, impractical and unacceptable on their case to the Court. I find that relocation is so intertwined with the live with order that the mother and the child must be permitted to relocate, as sought in the application. That outcome is in the best interests of the child.
EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME
S65DAA requires the Court to deal with the concept of equal time or substantial and significant time which, on the facts of this case, present insurmountable difficulties. The section provides:
Equal Time
(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of sub-section (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Sub-section (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of sub-sections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Having made an order for the parents and the paternal grandmother to have equal shared parental responsibility I have evaluated, as required, all of the evidence to determine whether that time spent should be equal or substantial and significant. I conclude that, for all of the practical, travel, financial and other reasons outlined throughout this Judgment that the time spent must be what is reasonably available and practical. Each of the matters set out in sub-section (5) are directly applicable. As to sub-paragraphs (a), (b) and (c) thereof I have dealt with them in detail throughout the Judgment. The impact upon the child of a period of more significant and substantial time to be spent would, I conclude, have a marked impact upon her. Such impact would be adverse because of the travel time involved and the disruption that it would cause to her upbringing, education, learning of language, traditions and culture and, at this age, the level of confusion she may experience from the vastly different cultures and lifestyle.
The determination of what is appropriate time spent and level of communication has been exceedingly difficult in this case and it may well be that, on a long term basis the current orders are inappropriate and may prove to be unworkable. They are what the parties have largely proposed in the circumstance that the mother and the child were permitted to relocate to Central Australia and I expect each of them to use their best endeavours and make every effort to ensure that the child is the beneficiary of these orders.
I have accepted that Adelaide is the appropriate changeover venue on mid year and school term holidays. I do understand that there are difficulties confronting all parties but the father has volunteered to drive with the paternal grandmother to that city. It is a long day’s drive and will require overnight accommodation before the return to the LaTrobe Valley but hopefully it can be budgeted for by them and the motor vehicle will be suitable for such a journey. The mother’s obligation on those occasions will be to travel to and from Adelaide by public transport or other organised travel and to deliver and collect the child from an agreed location, which I will order to be at the front of the Interstate Railway Terminal, and as was suggested by the Independent Children’s Lawyer.
As to the December / January long school holiday periods I intend that the mother travel with and return the child to and from the LaTrobe Valley. The first period of time spent with pursuant to this part of the order will therefore commence on 7 January 2009 and will be for a period of eighteen days. The changeover on both the delivery and return should occur at …, Morwell at 12.00 noon on the 7th and 25th of January in that year and in the years thereafter. The mother will have to make prior arrangements for her travel expenses and accommodation.
As to the length and frequency of periods of time spent with the child there are again many real issues. The child will not likely commence at school until the year 2010. I have ordered two periods in each calendar year plus the Christmas holiday period plus any other reasonable period when the mother and the child are within Victoria. I am not confident that these proposed travel arrangements are convenient or manageable. I will therefore specifically reserve liberty to apply on all time spent with and communication issues so they may be varied by the parties where appropriate and for proper reasons.
My intention has been to structure time spent with orders that do facilitate an ongoing and meaningful relationship for the child with her paternal grandmother and father. Subject to all restrictions and qualifications I have intended to make that a priority of these orders, but in a workable and practical manner.
ORDERS
I order as follows:
22.THAT all previous orders in relation to the child E (“the child”) born … October 2004 be discharged.
23.THAT the mother, father and paternal grandmother have equal shared parental responsibility for the child.
24.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”).
25.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.
26.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.
27.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.
28.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.
29.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.
30.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.
31.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).
32.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.
33.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.
34.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.
35.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.
36.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.
37.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.
38.THAT all extant applications be otherwise dismissed and the proceedings be removed from the list of cases awaiting hearing.
39.THAT the appointment of the Independent Children’s Lawyer be forthwith discharged.
40.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.
41.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
42.THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for all parties.
IT IS NOTED
A.THAT the paternal grandmother and father currently reside together and it is expected that they will arrange between themselves the time that each of them is to spend with the child either together or separately.
B.THAT all parties have indicated a preparedness to explore all other forms of electronic communication with the child where it is financially viable to do so.
C.THAT the mother, upon the relocation, will involve the child in various ceremonial and traditional cultural events and during these times they may be uncontactable. The mother must use her best endeavours to then maintain reasonable communication with the other parties.
I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young
………………………………………………………..
Associate:
Date: 26 September 2007
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