Dendy & Penta
[2024] FedCFamC2F 1116
•20 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dendy & Penta [2024] FedCFamC2F 1116
File number(s): LNC 315 of 2023 Judgment of: JUDGE TURNBULL Date of judgment: 20 August 2024 Catchwords: FAMILY LAW – PARENTING – Res tempore Reasons – Travel to Region C – Child of Aboriginal descent – Whether the child travelling to Region C poses an unacceptable risk – Connection to Aboriginal heritage and culture – Cultural practices. Legislation: Family Law Act 1975 (Cth) s 68B, Part 7 Cases cited: B & F [1998] FamCA 239
B & R [1995] FLC 92-368
Davis & Davis and Anor (2008) 38 Fam LR 671
Davis & Spring [2007] FamCA 1149
Davis & Davis [2007] FamCA 1149
Donnell & Dovey [2010] FamCAFC 15
Gareth v Naylor [2019] FamCA 561
Hort & Verran [2009] FamCAFC 214
MR & GR [2010] 240 CLR 461
Sheldon & Weir (2011) FamCAFC 212
Division: Division 2 Family Law Number of paragraphs: 57 Date of hearing: 19 March 2024 Place: City J Counsel for the First Applicant: Appearing in person Counsel for the Second Applicant: Appearing in person Counsel for the First Respondent: Ms Lawrence Solicitor for the First Respondent: Bishops Barristers & Solicitor Counsel for the Second Respondent: Appearing in person Counsel for the Independent Children's Lawyer: Ms Hunt Solicitor for the Independent Children's Lawyer: Legal Aid Commission ORDERS
LNC 315 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DENDY
First Applicant
MR DENDY
Second Applicant
AND: MS PENTA
First Respondent
MR B DENDY
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
20 MARCH 2024
THE COURT ORDERS THAT:
1.X born in 2017 ("X") be permitted to travel with MR B DENDY ("the Father"), MR DENDY ("the Paternal Great Grandfather") and/or MS DENDY ("the Paternal Grandmother") to Region C, State H twice per year as follows:
(a)For up to four (4) nights during the summer months (January/February);
(b)For up to seven (7) nights and during the annual hunting season noting this is to coincide either during or as close to the school holiday period as possible; and
(c)At other such times as agreed by the parties.
2.During all trips to Region C, X is to be accompanied by the Paternal Grandmother who will ensure X is supervised at all reasonable times and shall do so until he attains the age of eight (8) years.
3.X not be permitted to engage in any commercial hunting practices on an employed basis until he attains the age of twelve (12) years or older.
4.The Father, the Paternal Grandmother and/or the Paternal Great Grandfather provide MS PENTA ("the Mother") 14 days' notice of the intended travel dates to Region C and 3 days written notice of the specific travel dates (noting times may vary due to weather and flight conditions) and upon receiving such notice the Mother is to facilitate said travel.
5.Either the father, the paternal grandmother and/or the paternal Great Grandfather shall be responsible for the costs of the child's return flights to Region C.
6.The Father, the Paternal Grandmother and/or the Paternal Great Grandfather will ensure that appropriate safety items are provided for X such as helmets, lifejackets and any other necessary and appropriate safety items.
7.The Father, the Paternal Grandmother and the Paternal Great Grandfather ensure that X is not exposed to any third parties using illicit substances or drinking alcohol to excess whilst on Region C.
8.Pursuant to section 68B of the Family Law Act 1975 (Cth) the Applicant Paternal Great Grandfather is restrained from providing any direction to the Applicant Paternal Grandmother or to any other person supervising X from undertaking any work or other activity that would distract them from their obligation to supervise X pursuant to Order 2 of these Orders.
9.Save for these Orders and the Final Orders made 4 March 2024, that all extant parenting Orders are discharged.
10.All extant proceedings are dismissed.
THE COURT NOTES THAT:
A.Nothing set out in these Orders is intended to preclude the Mother from travelling to Region C with X.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
These Reasons were originally delivered res tempore on 20 March 2024. They have been slightly amended to correct grammatical errors and for ease of reading.
Overview
These are parenting proceedings relating to the child X, born in 2017 (‘X’). The Applicants are Ms Dendy (‘the paternal Grandmother’) and Mr Dendy (‘the paternal Great Grandfather’) (collectively ‘the Applicant’s’). Ms Penta — the first Respondent — is X’s mother (‘the Mother’), and Mr B Dendy — the second Respondent — is X’s father (‘the Father’).
These proceedings were commenced on 15 May 2023. By March 2024, the parties were able to reach final agreement in relation to all matters in dispute, save for the question as to whether X should be able to travel to Region C before he attains the age of eight years. The Agreement was made an Order on 4 March 2024 (‘the 4 March Orders')
The 4 March Orders confirmed that the Mother and Father have equal share parental responsibility for X, that X lives with the Mother and spends time each week with the Father, including one overnight time each alternate Saturday night. The Father's time on that night occurs at the residence of Ms D or the paternal Grandmother. The paternal Grandmother's time with X occurs at the time that the Father spends his time with him. I commend all of the parties for being able to reach such substantial agreement in relation to the matters that were in dispute.
The remaining issue — whether X should attend Region C — permeated the entire proceedings.
It is noted that on 19 December 2023, interim Orders were made (‘the Interim Orders’) for X to attend Region C with the paternal Grandmother, the paternal Great Grandfather and the Father, for three nights in January 2024 — notably outside of the hunting season. The Interim Orders included an Order for the child to be provided with appropriate safety items, including helmets, life jackets, and be protected from exposure to alcohol and drug use and be appropriately supervised and provided with medical care if required.
The issue for the hearing of the matter was whether, on a final basis, an Order should be made for X to attend Region C prior to attaining the age of eight years, and if so, the conditions of that time, if it is Ordered.
The Hearing
The hearing occurred on 19 March 2024. For the final hearing, the parties filed short affidavits and short summaries of argument. Cross-examination was limited to the issue in dispute, as were submissions. Again, I commend all parties on the manner in which they conducted themselves at this hearing, notwithstanding the genuine disagreement that existed between the Mother and the other parties regarding this important issue.
The Independent Children's Lawyer (‘ICL’), Ms Hunt, relied upon a Child Impact Report filed on 6 October 2023. The Reporter was not required for cross-examination. In Ms Hunt's outline of case, she very helpfully set out her proposed Orders, which are extracted here:
MINUTE OF ORDER SOUGHT BY THE INDEPENDENT CHILDREN'S LAWYER
1. THAT [X] born [in] 2017 ("[X] ") be permitted to travel with [MR B DENDY] ("the Father"), [MR DENDY] ("the Paternal Great Grandfather") and/or [MS DENDY] ("the Paternal Grandmother") to [Region C], [State H] twice per year as follows:
(a) For up to four (4) nights during the summer months (January/February);
(b) For up to seven (7) nights and during the [hunting] season noting this is to coincide either during or as close to the school holiday period as possible;
and
(c) At other such times as agreed by the parties.
2. THAT during all trips to [Region C], [X] is to be accompanied by the Paternal Grandmother who will ensure [X] is supervised at all reasonable times and shall do so until he attains the age of eight (8) years.
3. THAT [X] not be permitted to engage in any commercial [hunting] practices on an employed basis until he attains the age of fourteen (14) years or older.
4. THAT the Father, the Paternal Grandmother and/or the Paternal Great Grandfather provide [MS PENTA] ("the Mother") 14 days notice of the intended travel dates to [Region C] and 3 days w1itten notice of the specific travel dates (noting times may vary due to weather and flight conditions) and upon receiving such notice the Mother is to facilitate said travel.
5. THAT either the father, the paternal grandmother and/or the paternal great grandfather shall be responsible for the costs of the child 's return flights to [Region C].
6. THAT the Father, the Paternal Grandmother and/or the Paternal Great Grandfather will ensure that appropriate safety items are provided for [X] such as helmets, lifejackets and any other necessary and appropriate safety items.
7. THAT the Father, the Paternal Grandmother and the Paternal Great Grandfather ensure that [X] is not exposed to any third parties using illicit substances or drinking alcohol to excess whilst on [Region C].
AND THE COURT IS ASKED TO NOTE:
1. THAT nothing set out in these Orders is intended to preclude the Mother from traveling to [Region C] with [X].[1]
(Original emphasis)
[1] Case Outline of the Independent Children’s Lawyer filed 14 March 2024.
The Applicants confirmed that they agreed with all Orders sought by the ICL save for Order 3. Ultimately, all parties agreed that X is not permitted to engage in any commercial hunting practices on an employed basis, until he attained the age of 12 years.
The Mother agreed with the Orders sought by the ICL, and the stated amendment to Order 3, save that she did not want X to attend Region C until he had turned eight years of age. He will turn eight in 2025.
During the hearing, the paternal Great Grandfather also agreed to an Order that he be restrained from directing the paternal Grandmother to undertake work on Region C whilst X is under her supervision pursuant to Order 2 of the proposed Orders. Ultimately, the positions of the Applicants and the Father were aligned. The Mother's simple but important position was that X's time on Region C does not commence until he attains the age of eight years.
The paternal Grandmother was cross-examined by the Mother's counsel, Ms Lawerence, the paternal Great Grandfather and the ICL. I found her to be an impressive witness who deeply cares for her grandson and is committed to ensuring that he is safe in her care. Importantly, she acknowledged and understood the Mother's concerns about X's safety, stating to the effect that she also held such concerns about her own children's safety when they first went hunting on Region C.
The Father gave evidence and was clear and concise as to the activities that occur on Region C. He was adamant that X was safe on Region C and that he would take any necessary measures to placate the Mother's concerns, including obtaining a doorbell camera so that the Grandmother can keep watch on X when he is sleeping in the Father's accommodation.
The paternal Great Grandfather impressed as being deeply committed to his grandson's welfare and eloquently set out the important need for X to attend Region C and connect with other members of his Aboriginal community. This, he said, was vital for X's identity and it would allow him to connect with Region C and his extended family, who will help him understand his culture, history and traditions.
The Mother was only cross-examined by the ICL. The Mother is a proud Aboriginal woman who clearly understands the importance of X being exposed to his cultural heritage, history and traditions. The Mother is legitimately concerned about X's safety and has a genuine belief that, even under supervised conditions, he cannot be kept safe if he goes to Region C before he is developmentally able to self-protect.
The Mother distrusts the paternal Great Grandfather and does not believe that the Grandmother will be able to effectively supervise X at all times, fearing she will be required to work in the hunting business on Region C. The Mother's concerns were not placated with the proposal of there being injunctive orders made to ensure that X's time on Region C is safe and that he is always appropriately supervised.
Region C
Region C is in rural State H. In 1995, Region C was vested in the state Aboriginal Land Council on behalf of the Aboriginal community under a state act. The paternal Great Grandfather explained the cultural significance of Region C in his trial affidavit. He said:
11. [Hunting has] played a key role in Aboriginal life. The flowering of the [native flora] announced the return of the [game]. Different tribes met for the annual [hunting] of [game] over the summer months. White people made [hunting] commercial, but […] the feasting of [game] remains largely unaltered. [Hunting] is a historic cultural activity that connects us directly to our past.
12. Over the years, [hunting] again became a major source of food supply and income for Aboriginal families [in the region]. The main [areas] were [Region C and other regions]. [Hundreds of] Aboriginal people would go to the [regions] during the season. In [the 1930s] there were [over 250] men, women, and children [in Region C] alone…[2]
[2] Affidavit of Mr Dendy filed 13 March 2024 [11]-[12].
He attached to his affidavit photographs of people going to Region C at that time. He said:
12. … I went to [Region C] when I was aged 3 and 4.
13. Although little remains of the [buildings] that Aboriginal families used since the [mid 19th century], we know the location of the sites and most of the people who worked there. Some of the old buildings have names dating back to the 1950s. The [site in Town E] has names going back even further. Knowledge of people being born and died at [Region C] are known to me and others. Stories of Aboriginal [people], and who 'walked [the area]’ to get grog, are all part of our rich history. When [X] was at [Region C] in [early] 2024, I showed him where the old hospital was, and he rolled over and over on his tongue that '[Ms F]’ was the Aboriginal woman who ran it. He would never have learnt that had he not been [in Region C]. As part of [X]'s reciprocal obligation, he is expected to learn our history and pass it on to his descendants.[3]
[3] Ibid [12]-[13].
Submissions
The paternal Great Grandfather’s submissions were adopted by the Grandmother and the Father.
He referred to X's right to maintain and enjoy his culture with other people who share his culture and maintain a connection with his culture, as set out in sections 60CC(3H) and 60C(6) of the Family Law Act 1975 (Cth) (‘the Act’). He submitted that maintaining a connection with one's culture requires an active participation in that culture, and such participation should occur at an early age. That association with other Indigenous persons and valued community members who practiced their culture of harvesting and processing animals is important in maintaining culture and connection to such, as well as absorbing the knowledge associated with the practicing of hunting. This, he submitted, will firm up the child's identity and his place within the Aboriginal community. He submitted that X was introduced to his culture at Region C when he was only two or three years of age, and that to deny him an ongoing connection with that culture for the next two years will leave a gap in his knowledge and understanding of his culture and history, and his connection with other Aboriginal people who are able to help him to understand that culture and history. The paternal Great Grandfather very helpfully referred to several authorities of this Court, some of which I will refer to later in these Reasons.
The Mother's concern was directed to X’s safety in Region C. Her view is that X is unable to self-protect at this time, and that even the paternal Grandmother, although well-intentioned, is not able to fully supervise him whilst in Region C. As such, he will be exposed to many safety risks — as addressed in her Case Outline:
•The mother is not satisfied that [X] is old enough to self-protect [in Region C] and is seeking that [X] attains (8) years old before he goes to [Region C].
•The mother is concerned about the following safety issues [in Region C]:
•Unlicenced and loaded firearms;
•Drug use including [illicit drugs];
•Alcohol and high levels of intoxication;
•Snakes
•Motor vehicles that are not fitted with seat belts and are not roadworthy;
•[Region C] being a commercial [hunting area] and the risk that [X] will have to work;
•Lack of supervision and concerns [X] being left unsupervised when the father, paternal grandmother and great paternal grandfather are working; and
•Activities and learnings that are not age appropriate.[4]
[4] Case outline of Ms Penta filed 18 March 2024.
The Mother argued that X should attain the age of eight years old before he travels to Region C. At that age, he will have better understanding of his surroundings and be able to self-protect. The Mother said that she is aware that there have not been any other children in Region C at his young age.
The Mother also submitted that as an Aboriginal woman, she can keep X connected with his culture, including by taking him to Town G to learn about hunting. This important cultural skill will therefore remain an important and ongoing activity for him, in a safe environment where he can learn about and be protected from the various associated risks. She submitted that it cannot be claimed that she does not value the importance of X's connection with Region C, as she agreed to X travelling to Region C each summer and around the Easter break in each year, after he attains the age of eight years.
The ICL, as can be seen from her proposed Orders, submitted that it is in the child's best interest for him to be able to attend Region C from now. The ICL submitted that the Act makes it clear that X has a right to enjoy his culture with other people that share that culture and to have the support, opportunity and encouragement to explore the full extent of that culture consistent with his age and developmental level.
The ICL accepted that there are risks in Region C — particularly snake bite. However, those risks are mitigated by the Order requiring the paternal Grandmother to supervise X whilst in the region and not participating in work whilst she undertakes that task. The ICL submitted that her proposed Orders strike the right balance between being physically protective of X and ensuring his right to enjoy his culture, noting also that the hunting season is a particularly short period of time in each calendar year. The ICL also took comfort in the Mother's previous agreement to X travelling to Region C during the summer months.
The Law
In Gareth & Naylor [2019] FamCA 561, the Court stated in relation to the child’s enjoyment of her Aboriginal culture:
The Father identified the relevance of ss 60B(2)(e), 60CC(3)(h), 60CC(6) and 61F to these proceedings, on the basis that B has Aboriginal heritage. Section 61F and ss 60CC(3)(h) and 60CC(6) were inserted into the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)...[5]
[5] Gareth & Naylor [2019] FamCA 561 [103].
The Court continued:
In Hort & Verran [2009] FamCAFC 214; (2009) FLC 93-418 the Full Court approved the statements of Young J in Davis & Davis [2007] FamCA 1149; (2007) 38 Fam LR 671 explaining the 2006 Amendments, as follows:
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.
The Full Court in Hort & Verran [2009] FamCAFC 214; [2009] FLC 93-418 considered how the factors applicable to Aboriginal children in the new statutory context should be applied, and particularly the comments of Young J in Davis in relation to the notion of ‘connection’, as follows:
In Davis & Davis and Anor (2008) 38 Fam LR 671; [2007] FamCA 1149 Young J said:
In B & F [1998] FamCA 239, Moore J considered the scope and meaning of the term "connection". At 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.
In Donnell & Dovey [2010] FamCAFC 15 the Full Court stated:
[W]e consider that an Australian court exercising family law jurisdiction in the twenty first century must take judicial notice of the fact that there are marked differences between indigenous and nonindigenous people relating to the concept of family. This is not to say that the practices and beliefs of indigenous people are uniform, since it is well known that they are not. However, it cannot ever be safely assumed that research findings based on studies of European/white Australian children apply with equal force to indigenous children, even those who may have been raised in an urban setting.
In our view, judicial officers dealing with cases involving an indigenous child should be expected to have a basic level of understanding of indigenous culture, at least to the extent that this can be found in what the Full Court in B and R (supra) called ‘readily accessible public information’. It should not be expected that parties must approach the Court on the basis that the presiding judicial officer comes to the case with a ‘blank canvas’.
It is also to be expected, in our view, that judicial officers will be familiar with the reported decisions of the Full Court dealing with indigenous children, as well as the policy considerations that have informed the significant changes made to the legislation pertaining to indigenous children.[6]
(Emphasis added)
[6] Ibid [103]-[105].
The paternal Great Grandfather also referred me to Davis & Spring [2007] FamCA 1149, where the Court stated:
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.[7]
(Emphasis added)
[7] Davis & Spring [2007] FamCA 1149 [70]-[73].
In a decision of Sheldon & Weir (2011) FamCAFC 212, the Full Court stated in an appeal that was ultimately dismissed:
The trial Judge referred to the following passage from Hort & Verran (at par 106), and said “I agree that case drew together the jurisprudence in relation to the factors in relation to Aboriginal children which is to be applied in this case” [par 505]:
In Davis & Davis and Anor (2008) 38 Fam LR 671; [2007] FamCA 1149 Young J said:
…
Stephen Ralph in his article (above), 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) Alt L J 64. At p 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 the 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, a direct physical contact with their Aboriginal family and kin.
…
Her Honour then referred to the “series of articles” tendered on behalf of the appellant [par 506], one of which was written by Mr Ralph, upon whose expert opinion evidence the appellant seeks to rely pursuant to s 93A of the Act. Amongst the passages which her Honour quoted from those articles, which are significant for present purposes, was the following:
To be an Aboriginal person is to live the culture through interactions with one’s community and learn about what it is to be Aboriginal.
Her Honour then recorded:
The article provides a detailed expose of Aboriginal child rearing practices and points out that a child may have multiple caregivers with occasional lengthy absences from their parents and develop multiple attachments. The security of an Aboriginal child raised in this fashion, would be derived from a network of regular caregivers and acceptance in their community. In a multiple caregiver context, the opportunity is created of forming enduring relationships in the community which allows the support and maintenance of the child’s emotional health throughout their life span.
It is clear that her Honour there recognised, and accepted, the assertion of the appellant that Aboriginal culture was “lived” through “interactions” with one’s community.[8]
(Emphasis added)
[8] Sheldon & Weir (2011) FamCAFC 212 [108]-[110].
The Child’s Best Interests
This Court must craft and consider terms of a parenting Order with regard to the child's best interests as the paramount consideration.
I am not bound by the terms proposed by the parties, and subject to the pathway set out in the Act in Part 7, and particularly section 66DA and DAB, may create parenting orders as I think are proper in the circumstances. What, however, guides the assessment of the child's best interests? How, once their best interests are ascertained, does the Act ensure that parenting Orders reflect them as the paramount consideration?
The objects of part 7 of the Act, and the principles underlying those objects, indicate the Act's aspirations with respect to the child's best interests. Crucially, the underlying principles reflect and seek to enforce a child's human rights. Part 7 of the Act, to give effect to a child's best interests, carves a legislative pathway. The pathway has a number of substantive stepping stones which may be legitimately and properly followed in various forms. I will follow the path set out in MR & GR [2010] 240 CLR 461, which remains authoritative.
The Act sets out two mandatory considerations at section 60CC(2). It is noted that section 60CC(2)(b) is to be given greater weight than section 60CC(2)(a). This means that the need to protect a child from physical or psychological harm, from being subject to, or exposed to abuse, neglect or family violence, outweighs the benefit of a child having a meaningful relationship with both of their parents. The Act also includes a number of additional considerations under section 60CC(3), which will be considered insofar as they are relevant to this matter. I have referred to some of those factors already, so far as they affect Aboriginal children. I have regard to all of the relevant matters set out in section 60CC, so far as they relate to the refined issue before me. As stated, section 60B of the Act sets out the objects and principles to be applied when applying Part 7 of the Act. Section 60B(2)(e) states:
Children have a right to enjoy their culture (including the right to enjoy their culture with other people who share that culture).
Subparagraph (3) states:
For the purpose of subparagraph (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.
As stated, section 60CC(3) and section 60CC(6) largely reflect the principles that I have just mentioned at section 60CC(3)(h), which states:
If the child is an Aboriginal child or 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 their culture with other people who share that culture); and
(ii) the likely impact of any proposed parenting Order under this part will have on that right.
Section 60CC(6) states, under the heading 'Right to Enjoy Aboriginal or Torres Strait Islander Culture':
For the purposes of paragraph (3)(h), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Island 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.
Consideration
As stated, the Mother is a proud Aboriginal woman who understands and accepts the importance of X having a deep knowledge and connection with his culture, history and traditions — of which hunting plays an important part:
I am Aboriginal and this is something that I am very proud of. I have recently obtained my [hunting] Licence and I am planning on taking [X] to [Town G] in Tasmania to go [hunting] in the interim before [X] attains eight years of age. This will mean that [X] is still participating in this cultural activity in a safe and controlled environment with me. [X] travelled to [Region C] in [early] 2024. We had an agreement as to when [X] was to be returned and [Ms Dendy] informed me that they had not booked return flights and [X] would be returned a day late. I was distressed by this as we had an agreement, and it was not complied with. When [X] returned to my care, he told me that he does not want to go back to [Region C]. He told me, "it is dangerous mum" and, "I was scared". [X] cried when he told me this and was telling me how much he missed me.[9]
[9] Affidavit of Ms Penta file 14 March 2024 [4].
The Mother's concern is that X will not be safe if he attends Region C before he is able to self‑protect — at the age of eight years — referring to several concerns set out below.
Drug Use
The Mother claims that the Father uses illicit drugs and that other adults smoke marijuana and use other drugs in Region C. She also worries about X being exposed to persons affected by alcohol. These claims were not denied by the Father nor the paternal Great Grandfather. The paternal Great Grandfather said that these persons smoke drugs away from him — as he does not approve — mainly on a Saturday night, in a building some 25 metres from the main home. All agree that X should not be exposed to drug use, nor to intoxicated persons, and agree to the injunction at paragraph 7 of the ICL’s Orders.
The Grandmother made it clear, under cross-examination, that she would fully supervise X and ensure that he is not exposed to such behaviour. The risks of such behaviour were highlighted by the Father, who claimed that the reason a person was bitten by a snake was that he went hunting after consuming a large quantity of marijuana.
Several dangers do exist on Region C, particularly around the hunting season, and being affected by any substance would likely place any person at risk. X will, however, be under the watchful eye of the Grandmother, who I accept will fully supervise him. I accept that she is an independent person, not under the control of her parents or anyone else, and she will follow her own direction and instincts. Under cross-examination from Ms Hunt, she confirmed her stance. Ms Hunt asked:
So if you supervise, can you elaborate on the type of activities.
Reply:
Swimming and breakfast. He loves to be around the men, and what I'm expecting him to do is go around the [buildings]. He will be curious, and he will sit in the house with his pop and learn […], and I will be watching, and to throw the [animals] back through, and he can get distracted in catching [animals]. I will be kept very busy all day.
Question:
Do you acknowledge the Mother's concerns?
Reply:
Yes I do. I'm a Mother, and even when my kids went at a younger age, I would worry. I would worry about the snakes, the risks [in Region C], because I go there so often, but there are no difference to those risks and risks [in other parts of State H]. If you haven't participated, you fear it's a problem, but when you do it, it is clear there is nothing to worry about. I appreciate it because, as a young Mother, it did worry me, but it is okay in the end.
Question:
So it's positive, the importance of your role as a Grandmother?
Reply:
Yes. She [the Mother] trusts me and knows I will look after him, as will other family members present.
Question:
Do you teach him regarding snakes, etcetera?
Reply:
I'm terrible. I don't go too far out. I'm strict in making sure he doesn't put himself at risk fishing. It's an adult responsibility. I say to him I would not let him do things if he would be physically harmed.
Question:
So we're talking about the next few years. If you can't travel, how will that be managed?
Reply:
If I have to go, I will do that, and if I can't go, he can't go.
Children often have to navigate the reality of adults consuming alcohol and even, unfortunately, illicit substances in their presence from time to time. I accept that the paternal Grandmother will undertake her supervisory obligation seriously and ensure that X is not exposed to such activities. I also note the close connection between X and the paternal Great Grandfather and the Grandmother set out at paragraph 17 of the Court Child Expert's Report:
On becoming aware of his grandmother and great-grandfather’s presence in the Court, [X] was excited and when he saw [Mr Dendy] ran up and threw himself into a hug with him. [X] then went over to [Ms Dendy] hugging her and she spent some time complimenting his presentation. During the observation with [Ms Dendy] and [Mr Dendy], [Ms Dendy] was highly active, engaging in extended imaginary play with [X], showing a high level of natural skill in parenting play. [Mr Dendy] appeared to engage more in physical play with [X], with the impression gained that this is the type of play that [Mr Dendy] is used to and that [X] enjoys the opportunity for more wrestling/riding type behaviours. Overall no concerns were noted and it was a warm loving interaction, with [X] giggling and smiling throughout.[10]
[10] Child Impact Report filed 6 October 2023 (‘CIR’).
I am satisfied that all adults will act protectively of X when he attends Region C.
Lack of Supervision
The Mother's next concern was that X will be left unsupervised whilst the Grandmother works in the hunting operation in Region C. This issue was largely resolved by consent, with all agreeing that X will not work in any commercial hunting process until he reaches the age of 12. The paternal Great Grandfather explained that on occasions children of that age have received some money for engaging in some aspects of the hunting enterprise. The Grandmother explained — with a smile — that X currently believes that he is at this time a big help to that hunting operation, as she set out in her affidavit:
[X] thrived [in Region C]. He was happy, helpful and engaging. Everyday, he swam in the ocean [engaged in sporting activities], and assisted in 'maintenance' work with his own set of tools. He would report to me "Gran-Gran, I'm helping Granddad with this now" even though the task at hand did not require the assistance of a 6-year old. [X] was very helpful around the homestead and he would say that both Grandad and I needed the assistance of a young 'man' as we were getting old now.
[X] made his own spit - a long stick the men carry the [animals] on - in preparation for [hunting], remembering how he was shown during previous times by his Elders and his Dad. [X] wanted to ensure his spit was exactly the same as 'Granddad's.'
To my delight, [X] remembered all aspects of [hunting]. He thrived in relating how the crew catch [animals] and pointed out areas where his Dad catches [animals]. [X] related how he helps offload [animals] when a catch arrives at the [outbuilding] and related how proud he was of himself assisting his Dad and the crew.
[X] showed me how all areas of the [outbuilding] worked and what each room was used for. I was very proud to see [X] had not forgotten important cultural practices learnt from his Elders, practices that he will pass down to generations below him.[11]
[11] Affidavit of Ms Dendy filed 13 March 2024 [4]-[7].
I accept the evidence of the Grandmother that she is an independent, strong person who will not take directions from any other person, including her father, and will take her supervisory role of X very seriously. As stated, the paternal Great Grandfather agreed to an injunction that he will not direct the Grandmother nor any other person supervising X to work whilst he is under that person's supervision.
Conclusion
I am satisfied that it is in X's best interest to attend Region C from this moment. The importance of his connection to Region C, and those that attend there, cannot be understated. It is a fundamental part of his identity. As Moore J 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.[12]
(Emphasis added)
To deny X that experience over the next two years, is to deny him his fundamental rights.
[12] B & F [1998] FamCA 239 (Moore J) 29-30.
The Court Child Expert considered the parties' differing concerns and made comments about the importance of his cultural connection:
It appears contested as to the role of [X]'s attendance [in Region C] in his identity formation, sense of self and connection to culture, with [Ms Dendy], [Mr B Dendy] and [Mr Dendy] reporting a belief that not being able to travel there has already negatively impacted on [X]. [Ms Dendy] outlined that she refers to [X] in their [Aboriginal] language and reported [X] identifies himself as strongly attached to [Region C], a view shared by [Mr B Dendy]. [Mr Dendy] outlines concerns that [X] may be assimilated to such a degree that he is unable to connect to culture, unless he spends regular time engaged in Aboriginal practices in Aboriginal places. [Ms Penta] disagrees, outlining that she strongly embraces her Aboriginal heritage and has cultural items available to [X] and can share with him their culture or take him to other [regions] important to their people.[13]
[13] CIR (n 10) [31].
The Mother disagrees, stating that she strongly embraces her Aboriginal heritage, has cultural items available for X, and can share his culture with him and or take him to other important and significant places.
Regardless of how X accesses his culture, if his access is limited it could have substantial detrimental effects on his mental health and behaviour — potentially impacting him as an adult.
While the adults share a culture, there needs to be a degree of cooperation to ensure X's needs are met within the area — otherwise the effects on him will be substantial.
The Court Child Expert further considered X’s travel to Region C and connection to culture:
In relation to [X]'s travel to [Region C] and connection to culture, it appears that there will need to be provisions within an Order for the paternal grandmother to support the connection if [Ms Penta] or [Mr B Dendy] does not facilitate attendance at such cultural activities. An example of an appropriate arrangement, is that there be provision within the Order to allow [Ms Dendy] to take [X] on four occasions per year for periods of no more than two overnights to engage in such activities, provided she gives [Ms Penta] and [Mr B Dendy] 28 days’ notice, bearing in mind they have the first option to arrange his attendance. [X] is likely to highly benefit from attending any ceremonies, camps or cultural activities such as [hunting] available to him.[14]
[14] Ibid [38].
I accept the unchallenged evidence of the Court Child Expert in this regard.
I am satisfied that the risks identified by the Mother will be mitigated by the Orders that are proposed by the ICL and ultimately agreed by all parties. I am satisfied that the Grandmother will appropriately supervise X whilst he is on Region C and ensure that he is safe from all of the concerns the Mother sets out in her affidavit material.
I accept that the Grandmother is also concerned about X's safety in Region C — as she was with her own children — and that she will ensure, probably overzealously, that X is kept free of such risks.
I will leave the last words to the Grandmother:
[X] is an energetic young boy and our days were filled with activity. Overall, [X] thrived [in the region], his environment was educational, cultural, nurturing and happy. Wonderful and lifelong memories were made for [X] and myself and [Mr Dendy], of which I'm sure [X] will treasure and share with his family.
[X]'s identity to his cultural heritage remains strong. Teaching [X] our old ways [in Region C] were often met with responses such as "because I'm [Aboriginal]!" and "only [Aboriginal people] can do this" and "I already know how to do this because I'm [Aboriginal]". [X]'s use of […] (language) was encouraged and he was proud to pull myself and [Mr Dendy] up when we did not use our [language] at times.
I commend [Ms Penta] for giving [X] the opportunity to visit [Region C] again. [X] has a very strong connection with this [region], and his cultural practices, and for [X]'s overall wellbeing as an Aboriginal person, these trips should always be encouraged, accessible, and without limitations.
When I was at [Region C] during [hunting] in 2023, I was struck by the joy us women had together when cleaning, washing and packing the [game]. The stories that just flow about different Aboriginal people has no equivalent in the cities. The men are so patient showing us how to do things properly. I can see why [X] is so attracted to being part of [hunting in Region C].
For all the Reasons stated, I will make the Orders as set out at the commencement of these Reasons.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 20 August 2024
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