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… |
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- AGLC
- Davis v Davis [2007] FamCA 1149
- Case
- [2007] FamCA 1149
- Decision Date
CaseChat Overview and Summary
The court was required to determine several key legal issues. These included the appropriate orders for equal shared parental responsibility, the specific arrangements for E to live with the mother, and the conditions under which the mother and child would be permitted to relocate from Victoria to the Ernabella/Umuwa community. Furthermore, the court had to establish the detailed time E would spend with the paternal grandmother and father, both before and after the relocation, as well as the communication arrangements between E and these parties. The court also considered the standard of proof applicable to the allegations and evidence presented, particularly in light of the seriousness of some matters raised.
Young J applied the principles of the *Family Law Act 1975* (Cth), including considerations relating to Indigenous culture and the concept of equal shared parental responsibility. The court's reasoning involved a careful assessment of the evidence presented, including affidavits and submissions from various individuals, and an observation of witnesses. The standard of proof applied was the balance of probabilities, with the court acknowledging that the seriousness of allegations can influence the strength of evidence required to satisfy this standard, as per *Briginshaw v. Briginshaw* and *Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd*.
The court made comprehensive orders discharging previous orders and establishing equal shared parental responsibility between the mother, father, and paternal grandmother. The child was ordered to live with the mother, with permission for relocation to the Ernabella/Umuwa community under specific conditions. Detailed provisions were made for E's time with the paternal grandmother and father, communication arrangements, changeover procedures, and the exchange of information regarding E's education and medical care. The court also imposed restraints on the consumption of alcohol or illicit substances by the father and alcohol by the mother during specific periods concerning E's care. All extant applications were dismissed, and the Independent Children's Lawyer was discharged.
Orders
Orders of the court
MRS DAVIS
MS SPRING
REASONS FOR JUDGMENT
ISSUES
APPLICATIONS
AFFIDAVITS
SUMMARY OF ARGUMENT
DOCUMENTS PROVIDED TO COUNSEL
SUBMISSION OF INDEPENDENT CHILDREN’S LAWYER
BACKGROUND FACTS
MOTHER’S AGREED PERIODS IN THE LATROBE VALLEY
MOTHER’S AGREED PERIODS SPENT WITH W AND D
PREVIOUS ORDERS
SERVICE OF INITIAL APPLICATION ON MOTHER
INTERIM ORDERS MADE 17 AUGUST 2007
OBSERVATION OF WITNESSES
STANDARD OF PROOF
THE LAW
FAMILY LAW ACT - INDIGENOUS CULTURE
THE CHILD............................................................................................................................ 37
FAMILY LAW ACT – PARENTHOOD AND PATERNAL GRANDMOTHER
THE PATERNAL GRANDMOTHER
FATHER
MOTHER
MS T........................................................................................................................................ 74
MS M...................................................................................................................................... 79
MS A....................................................................................................................................... 86
DR J
MR O...................................................................................................................................... 98
DR K
s60CC(3) ADDITIONAL CONSIDERATIONS
EQUAL SHARED PARENTAL RESPONSIBILITY
EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME
ORDERS
ORDERS
1. THAT all previous orders in relation to the child E (“the child”) born … October 2004 be discharged.
2. THAT the mother, father and paternal grandmother have equal shared parental responsibility for the child.
3. THAT the child live with the mother in the LaTrobe Valley until 1 December 2007 and from that date the mother and the child be permitted to relocate from the State of Victoria (“the relocation”).
4. THAT subject to these orders and for a period of twenty-four (24) months from the date of the relocation the mother and the child live primarily in the Ernabella/Umuwa community and the mother be in substantial attendance with the child.
5. THAT the child spend time with the paternal grandmother and father as follows:
(a) until the relocation:
(i) in each week for a period of three (3) days as agreed and failing agreement from 12.00 noon Sunday to 12.00 noon Wednesday; and
(ii) at such other times agreed between the parties;
(b) following the relocation:
(i) in 2008 and 2009 for periods of fourteen (14) days as agreed in the months of April and October, and thereafter, commencing in the 2010 calendar year in each of the South Australian (Ernabella) first and third term school holidays for a period commencing three (3) days after the conclusion of school until two (2) days prior to the recommencement of school from 12.00 noon on the first day until 12.00 noon on the last day;
(ii) in the long summer school holidays in each year commencing in 2009 for a period of eighteen (18) days from 7th January in each year;
(iii) in the event that the mother visits the LaTrobe Valley for such time as can be agreed between the parties;
(iv) in the event that the paternal grandmother or the father visits Ernabella/Umuwa for such time as can be agreed between the parties;
(v) at all such other times as agreed between the parties.
6. THAT the child communicate with the paternal grandmother and father as follows:
(a) while the mother remains in the LaTrobe Valley:
(i) by telephone as agreed between the parties and failing agreement between 6.00 p.m. and 6.15 p.m. each Wednesday, Friday and Saturday with the mother to initiate the telephone call to the paternal grandmother’s landline;
(ii) at such other times as agreed between the parties.
(b) following the relocation:
(i) by telephone as agreed between the parties and failing agreement between 6.00 p.m. and 6.30 p.m. (times to be set at the location of the child) each Tuesday and on all birthdays, Father’s Day, Christmas Day and special occasions with the mother to initiate the telephone call to the paternal grandmother’s landline;
(ii) at such other times agreed between the parties.
7. THAT all parties use their best endeavours to obtain a form of electronic communication (including but not limited to e-mail and webcam) to enable communication to occur between the child and the paternal grandmother and father and, if so, this is to be in addition to telephone time spent.
8. THAT for the purposes of changeover pursuant to these Orders:
(a) all changeover periods in the LaTrobe Valley occur at a location agreed between the parties and failing agreement at …, Morwell;
(b) following the relocation all April and October, or term school holiday changeovers occur at a location agreed between the parties and failing agreement the Adelaide Interstate Railway Terminal at an agreed time at the front entrance.
(c) specifically for the January period as ordered from 2009 the mother deliver and collect the child to and the paternal grandmother or father collect and deliver the child from …, Morwell at 12.00 noon on the 7th and 25th of that month.
9. THAT if the mother together with the child (following the relocation) enters the State of Victoria at any time the mother must:
(a) notify the paternal grandmother and father of the proposed date(s) and the location of her trip; and
(b) use her best endeavours to organise the child to spend reasonable and proper time with the paternal grandmother and father at such locations and in such manner as may be agreed or be reasonable.
10. THAT all parties keep the others informed of their permanent residential address and all contact phone numbers (including mobile phone services) and notify each of them not less than seven (7) days prior to any proposed change of their permanent residential address and as soon as practicable prior to any change of telephone number (but if the paternal grandmother and father reside together only one of them is required to be notified by the mother).
11. THAT the mother do all things necessary to authorise and instruct the child’s school to provide to the paternal grandmother and the father, at their expense, if any, all school reports usually provided to a parent.
12. THAT the mother do all things necessary to authorise and instruct the child’s school to provide to the paternal grandmother and father, at their expense, if any, all other information as to her education and request that subject to their ability to do so, they speak to the paternal grandmother and/or father by telephone or other electronic means.
13. THAT all parties, as soon as practicable, notify and keep the others informed of any medical or hospital treatment required by the child during the time that she is with them (but it is noted that if the paternal grandmother and father reside together only one of them is required to be notified) and for the purpose of this Order the father, mother and paternal grandmother authorise and instruct the child’s treating medical practitioner or a hospital to communicate any relevant information to each of the other parties.
14. THAT the father be restrained from the consumption of alcohol or illicit substances during those times when the child is in his primary care and in the absence of the paternal grandmother, or during the twelve (12) hour period prior to him spending time with her.
15. THAT the mother be restrained from the consumption of alcohol during all times that the child is living with her and in her sole care pursuant to these Orders.
16. THAT at the written request of the paternal grandmother, the mother do all things necessary to support any application for a Permit for her to enter the APY lands.
17. THAT all extant applications be otherwise dismissed and the proceedings be removed from the list of cases awaiting hearing.
18. THAT the appointment of the Independent Children’s Lawyer be forthwith discharged.
19. THAT liberty be reserved to all parties, upon proper documentation filed and served, to make application in respect of any proper variation of the time spent with and communication orders.
20. THAT pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” and these particulars are included in these orders.
IT IS CERTIFIED
21. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for all parties.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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