Donnell & Dovey
[2010] FamCAFC 15
•10 February 2010
FAMILY COURT OF AUSTRALIA
| DONNELL & DOVEY | [2010] FamCAFC 15 |
| FAMILY LAW - CHILDREN – With whom a child lives – With whom a child spends time – Relocation – from Brisbane to the Torres Strait – Adequacy of reasons – Where the child’s mother had died and child was living with eldest sister – Where the Federal Magistrate ordered that the child eventually leave the sister’s care in Brisbane to live with the father in the Torres Strait – Cultural issues – Torres Strait Islander culture – Aboriginal culture – Indigenous child-rearing practices – Where according to Wakka Wakka traditions it is culturally appropriate for a child to live with their eldest sibling upon the death of a parent – Exceptions to the practice – Limited evidence – Where the Federal Magistrate considered the placement of the child’s half-siblings with their respective fathers – Where the father had been largely absent from the child’s life – Not open to the Federal Magistrate to find it culturally appropriate for a child to live with their father upon the mother’s death FAMILY LAW - EVIDENCE – Absence of anthropological evidence – Where the parties did not seek to place anthropological evidence before the Federal Magistrate – Whether the Federal Magistrate should have adjourned proceedings until further evidence was available – Where the Federal Magistrate accepted the evidence of the parties in relation to cultural issues FAMILY LAW - LEGISLATION – Family Law Act 1975 (Cth) – Best interests of a child – Definition of “parent” – Section 60CC – Application of primary and additional considerations to a non-parent – Application of section 61F FAMILY LAW - DISCRETION – Parenting capacity – Where the Federal Magistrate made a finding based on the father’s intentions to parent the child – Whether the Federal Magistrate had adequately considered the father’s past conduct in relation to parenting the child FAMILY LAW - EVIDENCE – Expert evidence – Reliance by Federal Magistrate on the single expert’s evidence – Differential treatment of parties by the single expert – Methodology employed by the single expert led to a perception of bias – Procedural fairness was not afforded to the sister by the single expert in preparation of the expert’s report – Emphasis placed on the child’s Torres Strait Island heritage – the child’s Aboriginal heritage was not properly considered – Emphasis placed on “parent-child relationship” without consideration of cultural context – Where the Federal Magistrate erred in relying on the single expert’s evidence – Appealable error established – Appeal allowed |
| Evidence Act 1995 (Cth), s 144 Family Law Act 1975 (Cth), s 60B, s 60CA, s 60CC, s 61B, s 61C, s 61F, s 64B, s 64C, s 65C, s 65DAA, s 69ZX(3) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Family Law Rules 2004 (Cth), r 15.59(3), r 15.63 Federal Magistrates Act 1999 (Cth), s 42 Federal Proceedings (Costs) Act 1981 (Cth), s 6, s 8, s 9 |
| A v J (1995) FLC 92-619 Aldridge & Keaton [2009] FamCAFC 229 B and R and the Separate Representative (1995) FLC 92-636 Champness & Hanson (2009) FLC 93-407 Davis v Davis (2008) 38 Fam LR 671 Hort & Verran [2009] FamCAFC 214 Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378 In re CP (1997) FLC 92-741 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Marsden & Winch (No. 3) [2007] FamCA 1364 McCall & Clark (2009) FLC 93-405 Mulvany & Lane (2009) FLC 93-404 Potts & Bims [2007] FamCA 394 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 |
| APPELLANT: | Ms Donnell |
| RESPONDENT: | Mr Dovey |
| INDEPENDENT CHILDREN’S LAWYER: | Michael Emerson |
| FILE NUMBER: | BRC | 2316 | of | 2008 |
| APPEAL NUMBER: | NA | 29 | of | 2009 |
| DATE DELIVERED: | 10 February 2010 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick, Thackray & O'Ryan JJ |
| HEARING DATE: | 23 September 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 3 March 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 515 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Brasch with Ms Umashev |
| SOLICITOR FOR THE APPELLANT: | Parker Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Linklater-Steele |
| SOLICITOR FOR THE RESPONDENT: | Brisbane North Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Kirkman-Scroope |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Emerson Family Law |
Orders
The appeal be allowed.
The orders made by Federal Magistrate Howard on 3 March 2009 be set aside.
The matter is remitted for hearing before a Federal Magistrate other than Federal Magistrate Howard.
There be no order for costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by him in relation to the appeal.
The Court grants to each of the parties and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the rehearing of the application.
IT IS NOTED that publication of this judgment under the pseudonym Donnell & Dovey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 29 of 2009
File Number: BRC 2316 of 2008
| Ms Donnell |
Appellant
And
| Mr Dovey |
Respondent
REASONS FOR JUDGMENT
Introduction
This appeal concerns O B-Dovey, the eight-year-old son of Mr Dovey and the late Ms B.
O is descended from two indigenous groups. His father is a Torres Strait Islander and his mother’s people are from the Wakka Wakka tribe. The appeal raises important issues concerning O’s indigenous heritage.
O’s mother and father lived together for about two years before they separated in 2002, when O was seven months old. The father returned to live in the Torres Strait. O remained with his mother in Brisbane, together with his half-brother and half-sisters from his mother’s previous relationships.
O’s mother died in a motor vehicle accident in 2007. Ms Donnell, the appellant, is her eldest daughter and O’s eldest half-sister. She and her husband have cared for O since the mother died.
O’s father had seen O on only four brief occasions from when he went home in 2002 until the death of O’s mother. Upon learning of her death, the father travelled to Brisbane and spent about 10 days with O. They stayed in the home of the mother’s brother, where three of O’s half-sisters were also staying.
O commenced living with Mrs Donnell and her husband shortly after the funeral of the mother. The father was unhappy with this arrangement and decided O should live with him. In September 2007 he instructed solicitors to prepare an application to secure that outcome. The application was signed but never filed. By this time the father had returned to G, on the mainland, where he had been living for some months. In due course he went back to the Torres Strait.
After an unsuccessful attempt at mediation in January 2008, proceedings were commenced by Mrs Donnell in March 2008 in which she proposed that O live with her. The father opposed the application. An interim consent order was made for O to remain with his sister, but arrangements were made for him to spend time with his father. As it turned out, O’s father was only able to see him on a few occasions before trial.
The father’s case had been that O would live in the Torres Strait, where the boy would be immersed in the local language and culture. However, just a few weeks before trial the father returned to live at G, where he decided he would remain for about two years before going home to the Islands.
Immediately following the two day trial in March 2009, Federal Magistrate Howard decided that O should live with the father. The change in residence was to be introduced gradually; however, the operation of the orders was later stayed pending this appeal.
… We will refer Mr Dovey as “O’s father” or “the father”. We will refer to Mrs Donnell as “O’s sister” or “the sister”, and we will sometimes refer to her husband as “O’s brother-in-law”. In citations from the Federal Magistrate’s reasons we will substitute “the report writer” for the name of the report writer.
Background
The following brief background is drawn largely from the findings of the Federal Magistrate; however, in some instances we have relied upon other material which we understand is not controversial.
O was born in 2001. He is the only child of the relationship between the father and the mother. O was given the name “O … B-Dovey”.
O lived with both parents until their separation in 2002. We have already referred to the limited involvement the father had in his life from 2002 until the death of O’s mother in 2007.
In the absence of findings by the Federal Magistrate, we will not detail all of the various claims about what occurred immediately following the death of O’s mother. It is sufficient to say that O’s sister gave evidence that she was unhappy with what she understood to be the father’s decision to allow O to remain living with her late mother’s brother. She took O and he has remained with her ever since.
O’s sister commenced proceedings in March 2008, seeking sole parental responsibility and an order for O to live with her. She proposed that O spend time with the father for a total of four weeks each year. At trial she proposed an order for equal shared parental responsibility. She also proposed that while the father remained at G he would have O each second weekend and for half of all school holidays. If the father returned to the Torres Strait she proposed that he have O for all of the school holidays, apart from the Christmas holidays which would be shared equally. She also proposed weekly telephone communication.
The father’s amended Response sought that O live with him and that he have sole parental responsibility. He proposed that while he was still living in G the sister would have O on one out of three weekends and for half of school holidays. He proposed that upon his return to the Torres Strait the sister would have O for the whole of the June/July school holidays and half of the Christmas holidays. He also proposed weekly telephone communication.
O’s father was 33 years of age at the time of trial. He married his present wife in November 2008. They had been in a relationship for about five years and they now have a daughter, who was born in 2008. At the time of trial they were living in the home of the wife’s mother at G, which is about a four hour drive from Brisbane.
O’s sister was 21 at the time of trial. She and her husband were married in 2007. They now have two children. The first, a boy, was born in 2007. The second was born after the trial.
At the time of trial, O was living with the sister and her family in B, which is a northern suburb of Brisbane. His other half-siblings were also living on Brisbane’s north side.
· N, then nearly 18, was living in … about 20 kilometres from B;
· M and K (12 and 11) were living with their father, Mr M, in L, which adjoins B;
· C (5) was also living in L with her father, Mr G.
O’s parents come from large indigenous families. O’s father has numerous relatives, spread over many generations, in the Torres Strait. O’s mother was a Wakka Wakka woman. O’s sister gave evidence that the land of the Wakka Wakka runs from Proserpine to Brisbane. She has many relatives in Brisbane.
The Federal Magistrate’s orders
During the trial O’s sister and father agreed all of the orders that would be made once the Federal Magistrate determined with whom O would live.
The Federal Magistrate decided that O should live with the father. The parties had agreed that if this was to occur, O would spend gradually increasing times with his father.
The first orders made by the Federal Magistrate were those agreed concerning parental responsibility and the promotion of O’s appreciation of his indigenous heritage. These orders were as follows:
1.That except as provided for in paragraph 2 below, the Applicant and Respondent will consult each other and use their best endeavours to reach agreement about major long term issues for the child O … B-DOVEY born 2001 (known as O …), including but not limited to:-
(a)the primary school to be attended by the child
(b)the secondary school the child attends;
(c)the child’s name; and
(d)the child’s health; and
(e)any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with either party as provided for in these orders.
2.That with respect to the child’s shared Aboriginality and Torres Strait heritage:
(a)the party with whom the child lives shall be responsible for ensuring the child learns about and is involved in both the Aboriginal and Torres Strait Island aspects of his shared culture;
(b)notwithstanding (a), the other party will be entitled to advise the resident party of cultural events, happenings or age-relevant teachings and the resident party will use their best endeavours to facilitate the child’s involvement in those events, happenings and age-relevant teaching;
(c)further, when the child spends time with a party, that party is entitled to involve the child in their own traditions and practices.
AND IT IS NOTED, with respect to cultural issues, both parties acknowledge their respect for the other party’s culture and importance to positively promote the child’s shared Aboriginality and Torres Strait heritage.
It appears the first of the orders was drafted in these terms because the Federal Magistrate was doubtful that an order could be made allocating “parental responsibility” to a person who is not a parent (Transcript, pages 63 to 64). As we will later discuss, this was a misapprehension (as was belatedly drawn to his Honour’s attention during closing addresses – Transcript, page 157). As it turns out, no order has been made for allocation of parental responsibility. This appears contrary to the intent of the parties (see Transcript, pages 64, 66 and 131).
The Federal Magistrate’s orders then laid down the agreed program by which O would spend increasing periods of time with his father. This involved:
· for the first three months, O spending time with the father each alternate weekend from Friday afternoon to Sunday afternoon;
· for the next three months, O spending time with the father for three out of every four weekends from Friday afternoon to Sunday afternoon;
· the weekend visits being suspended during school holidays in these two periods (i.e. O would spend all school holidays with his sister);
· O moving to live with the father at the end of these two periods.
The Federal Magistrate next made an order preventing the father from relocating to the Torres Strait before January 2011. This consent order was made in the context of the father’s plan to remain in G for two years.
The orders went on to provide that once the relocation occurred, O’s sister could spend time with O for all school holidays, save for the Christmas holidays which would be shared equally. The costs of travel were to be shared equally. In the meantime, whilst the father was still at G, O’s sister would be able to spend time with O each second weekend and for half of school holidays.
The orders also made provision for O’s sister to communicate with O by telephone, letter, email and Skype.
The Federal Magistrate’s reasons
The trial was conducted over two days in March 2009, at the conclusion of which the Federal Magistrate delivered judgment. We might observe that the learned Magistrate set himself an ambitious task in delivering reasons ex tempore in a case such as this.
After referring to some factual background, his Honour said he should consider “the applicable sections and sub-sections in pt.VII of the Act”. He first recited ss 60B(1) and (2), which set out the objects of Part VII of the Family Law Act1975 (Cth) (“the Act”) and the principles underlying those objects.
His Honour also set out s 60B(3), which deals with the right of Aboriginal and Torres Strait Islander children to enjoy their culture. He observed that the case was very interesting because O “has at his disposal two diverse, ancient and very rich cultures”. He went on to say that he had no doubt that O was going to live a life:
which will be the envy of children around the world because of the importance that the people closest to him in his life have placed upon their cultural heritage. That is to say, the Aboriginal cultural heritage and the Torres Strait Islander heritage.
His Honour then set out s 60CA, which directs the court to regard the best interests of the child as the paramount consideration.
His Honour next referred to s 60CC, which indicates how a court determines what is in a child’s best interests. He noted that this essentially involves the court considering the matters set out in ss 60CC(2) and (3).
His Honour then recited s 60CC(2), which contains the two “primary considerations” to be taken into account. His Honour noted that the first of these is “the benefit to the child of having a meaningful relationship with both of the child’s parents”. His Honour said that unfortunately O now had only one parent.
His Honour went on to say (emphasis in the original):
18.It is worth noting at this point in time that whilst s.60CC(2)(a) is indeed the first stated primary consideration, it is a consideration which has to be taken into account and (for want of a better term) “considered” along with the additional considerations which are set forth in s.60CC...
Having noted that the other “primary consideration” was not relevant, his Honour found there could be no doubt that it would beneficial for O to have a meaningful relationship with his father. He said that “in respect of that issue concerning the importance of s.60CC(2) I will before perfecting final orders, turn my mind to the specific cases I have been referred to by counsel this afternoon”. His Honour did not return to identify those cases, nor did he discuss how he turned his mind to them. However, he did say it was clear:
19.… that the first stated primary consideration is a matter which has to be given due weight having regard to the fact that it is referred to as a primary consideration but cannot be seen as a defining consideration in respect of any parenting order. Any order that is made, it goes without saying, must be consistent with the best interests of the child.
His Honour then turned to consider s 60CC(3), which sets out the “additional considerations” that must be taken into account.
Having found that O’s views ought not be given any weight, his Honour moved to s 60CC(3)(b), which concerns the nature of the child’s relationship with each of the parents and with other persons (including any grandparent or other relative of the child). Given that one of the grounds of appeal directly challenges this part of his Honour’s reasons, we set it out below in full:
22.I find that the child has an excellent relationship with his father. I find that the child has a close and loving relationship with his father. By the same token, I find that the child has an excellent, close and loving relationship with his older sister, [the sister], her husband, [O’s brother-in-law] and his other maternal relatives. I also find that it is highly likely to be the case that the child will get along well with the father’s nuclear family. I will make no comment about the extended family because of generally the lack of evidence in relation to them.
His Honour next referred to s 60CC(3)(c), which refers to “the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”. His Honour said he would consider that subparagraph “even though it refers specifically to parents”. He recorded that it seemed to him that both parties had presented as willing and able to facilitate and encourage a close and continuing relationship between O and the other party. He noted that, to their credit, the parties had been able to substantially agree the orders to be made, other than the primary issue of “residence”. His Honour found this pointed towards their willingness and ability to encourage the relationship between O and the other party.
His Honour next discussed s 60CC(3)(d), which is in these terms:
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living.
As this is an important factor, we will repeat all his Honour had to say about it:
25.In this regard there will of course be a period of transition no matter what occurs. In particular, with the father living in [G], it will take some time for the child to become used to travelling to and from [G] between his current home in [B] and the father’s home in [G]. I am satisfied though that wherever this child remains living primarily or wherever this child lives primarily, the support that he will receive from those people who are closest to him will soften any impact or likely effect of an adverse nature upon the child as a result of the travelling and the movement that is almost inevitable in this child’s life.
26.The father, of course, is proposing to live in [G] for a period of approximately two years. After that the father proposes to return to the Torres Strait. My comments in relation to the changes in the child’s circumstances include the situation where the father is in the Torres Strait. I do not consider that there will be any undue, long term, negative impacts upon the child whether he remains living primarily in [B], primarily in [G] or primarily in the Torres Strait.
The next provision considered was s 60CC(3)(e), which relates to the practical difficulty and expense of a child spending time with and communicating with a “parent”. His Honour said that “clearly it won’t be easy”, especially when the father returned to live in the Torres Strait. However, no matter where the child was living it seemed to his Honour that the parties would (because they had already agreed to do so) share the cost of travel that would enable O to maintain “proper contact with each party”. (We note there was no ground of appeal directed to this finding, notwithstanding the difficulties that had already been experienced in ensuring that contact visits occurred when arranged.)
Paragraph 60CC(3)(f) relates to the capacity of each of the child’s parents and any other person, including grandparents or relatives, to provide for the needs of the child, including emotional and intellectual needs. His Honour expressed satisfaction that each party had the capacity to provide for these needs. He particularly noted that the father had worked at various jobs, including traditional fishing in the Torres Strait.
The next factor considered was s 60CC(3)(h), which is clearly of importance given that O’s mother was Aboriginal and his father is a Torres Strait Islander. This provides as follows:
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.
His Honour expressed his satisfaction that whatever order he made, O would have the opportunity to enjoy both cultures, including the right to enjoy those cultures with other people who share them.
His Honour then dealt with the factors in paragraphs 60CC(3)(i) through to (m), although he recognised that some of the findings about these factors touched on some of the others already discussed.
In dealing with this group of factors, his Honour first referred to the father’s evidence that he had prepared an application for O to live with him in September 2007, but this had not been pursued because his lawyers failed to prosecute the matter. His Honour found that the father had “evinced an intention” to apply for an order for O to live with him and accepted his explanation why this had not occurred.
His Honour also considered it was important to note the father’s evidence that he had previously considered making an application for “custody” while O’s mother was still alive. The Federal Magistrate accepted the father’s evidence that the mother had threatened to “disappear” if he did so, and it was for that reason he had not proceeded.
His Honour then found that O’s sister and her family “identify as members of the Wakka Wakka Tribe”. He recorded that the sister had given evidence that part of the Wakka Wakka tradition is that “it is the responsibility of an eldest child to raise a younger sibling in circumstances where the parents have passed away”. He then recited the following very important paragraphs from the trial affidavit of the sister:
38.Our Mother was a woman of the Wakka Wakka tribe and their land runs from Proserpine to Brisbane. I also identify as a Wakka Wakka woman. The tribal line is matriarchic and it is the women who are dominant and assume the leadership role. Our Mother helped her sisters to look after their children if they could not manage and the women keep the family together.
39.When a parent passes away, it falls to the oldest child to look after their financial affairs and the younger children and to make the necessary arrangements. That is how it has always been in my family, so the role I have taken on with [O] is culturally appropriate. The Respondent was barely there and I took that place and took on that responsibility. I respectfully ask that this Honourable Court have regard to the kinship obligations and the child rearing practices of our Aboriginal culture.
40.The Aboriginal Elders are usually Grandparents and older people and they hold a special place in our community and have a respected status. The Elders know more and therefore it falls to them to teach the younger people in the tribe. Our Nanna, [S], who is my Grandmother’s first Cousin, is an Elder and I can seek her out for advice and guidance if needed. She lives nearby at [MD] and works as a Drug and Alcohol Counsellor. In her spare time, she also works with troubled indigenous children and attends camps with them.
His Honour said he accepted the evidence of O’s sister that “when a parent passes away it falls to the oldest child to look after their financial affairs and the younger children and to make the necessary arrangements”. However, he went on to say that the “situation in respect of this matter requires some closer consideration”. He then noted that three of O’s half-sisters had been living with their fathers since the death of O’s mother. His Honour said:
36.This set of circumstances appears to me to be consistent with the applicant’s evidence of the Wakka Wakka tradition. To put it another way, if there is a suitable parent available it is not inconsistent with the Wakka Wakka tradition for a child who has lost one parent to go and live with the remaining suitable parent. In this case, for the reasons that I will continue to enunciate, I consider that there is a suitable parent and that of course is the father.
His Honour then found that the father had close cultural and family connections to the Torres Strait Islands. He said it was “not surprising” that the father had returned to the Torres Strait after separating from O’s mother. He went on:
37.… It is also not surprising, on one level, that the separation occurred between himself and the mother in view of the evidence before the Court that it is a part of the Wakka Wakka tradition that a mother plays a dominant role and the evidence before the Court that it is part of the Wakka Wakka tradition that a mother may take several partners and have children with those several partners.
His Honour then dealt with the significance of the father’s absence from O’s life As this is of considerable importance we will repeat all his Honour said:
38.The father then travelled of course to live in the Torres Strait after he separated from the mother. What impact does his absence during that time have upon the outcome of these proceedings? The tyranny of distance has been referred to by … counsel for the Independent Children’s Lawyer. In this case there are the following issues:-
a)the tyranny of distance is inter-twined with cultural issues and the need for both parties to spend time with relatives and friends sharing a similar cultural background. That is why I have found that it is not, to my mind, altogether unusual that the father went to the Torres Strait after separation;
b)I accept the father’s evidence that he attempted to organise to have the child visit him in the Torres Strait; those attempts were unsuccessful;
c)I accept his evidence that the mother on occasions agreed that the child could come to visit but then changed her mind.
His Honour then noted that O’s father and sister had once had a good relationship and said he was satisfied, having regard to the fact that they had substantially agreed on most of the orders to be made, that “their formerly good relationship will be re‑enlivened” when the proceedings were concluded.
His Honour found there had been “one instance of family violence” [i.e. between O’s parents]; however, he accepted the opinion of the report writer that the father was “not an habitually violent person”. His Honour noted that no party had sought to make any particular issue of that one violent incident. He also noted that the relationship of O’s parents had been “rocky” and the mother had used marijuana “inappropriately”.
The Federal Magistrate then referred to the father’s “fishing career in the Torres Strait”. He noted the father’s evidence that for periods of time “he may or may not be fishing”. His Honour inferred from this evidence that the father was in a position where he could be flexible with his fishing activities. He said he would infer that the father would restrict his time away fishing when he and O were living in the Torres Strait. He also noted the father’s evidence that he had had land‑based jobs. He accepted that, if necessary, the father would obtain a job on land.
His Honour found that O had enjoyed his time with his father in the Torres Strait when he had visited recently. He also accepted that O had “greatly enjoyed living primarily with his older sister and her husband” who he accepted had been “excellent role models”. He also accepted that they would continue to be excellent role models because in the years ahead “[O] will continue to spend a significant amount of time with the [sister] and her extended family”.
His Honour noted that O’s brother-in-law had recently been promoted and had been able to “obtain relatively substantial income”, which would mean that the parties would have the capacity to share the cost of travel once O began living in the Torres Strait. He went on to express his satisfaction that the time O would spend with his father in the Islands would enable the father to teach the boy “the traditional ways of the Torres Strait Islanders, including, importantly, the art of fishing – not only from the cultural perspective but as a possible future working career”.
His Honour then expressed satisfaction that O’s mother’s family would ensure O was “well versed in the traditions of his Aboriginal culture” during their time with him. He found that the father and O’s sister were “essentially gentle people with [O’s] best interests at heart” and that O would enjoy the benefits of both cultures.
His Honour then turned to consider the two reports of the report writer who had been appointed during the proceedings. He noted that she had twice visited the Torres Strait to observe O with his father. (This was incorrect as O was not with the father when she made her first trip.) He noted that the report writer had also been to O’s home in Brisbane to observe O with the sister, her husband and extended family. He expressed his satisfaction that the report writer “had sufficient time and opportunity to observe [O] with both the [sister] and her family and with the father”. He noted, without making any further comment, that the report writer had referred in her report to “Aunty [S]” who his Honour found “holds an important position within the [sister’s] family”.
His Honour next referred to a submission by O’s sister’s counsel concerning Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”). He noted that the submission essentially was that little or no weight should be given to the two reports for a number of reasons:
including the fact that, in counsel’s submissions, the report writer over‑emphasised the importance of the Torres Strait Islander culture to the detriment of a proper examination of the Aboriginal culture and the relative importance of both cultures.
His Honour said that for reasons he had already stated he did not consider this to be the case. In doing so he referred to the earlier paragraphs in his judgment in which he had found that the report writer had visited both residences and had met with “Aunty [S]”. He went on to say:
I consider that the report writer did have sufficient opportunity to observe the child, [O], with both parties and their families in the parties’ respective home environments. In the father’s case the Torres Strait will be the long-term home environment. The report writer’s opinion, as stated in her reports, is that the child ought to live primarily with the father. I particularly note that the second report by the report writer did specifically address certain issues, including the issue that she ought, that is the report writer, ought give more consideration to [O’s] Aboriginal heritage. I consider that the report writer has taken into account in an appropriate way the importance of the child’s attachments to the respective families and the importance of the respective cultures of those families.
The Federal Magistrate then set out an extract from the second report containing the report writer’s recommendations. We repeat this extract below as it is of considerable significance. The underlining was added by his Honour. His Honour omitted paragraph 5.6 but we think it worth including since it refers to potential difficulties in O being able to remain in contact with an absent father/sister by telephone.
5.SUMMARY and RECOMMENDATIONS
5.1There have not been significant developments in this matter in the preceding months. Financial and employment restrictions have prevented the father from seeing his son and so [Ms Donnell] remains reluctant to support a change in residency for [O] based on the lack of demonstrated commitment on the father’s part to parenting [O]. The father has relocated for a period of time to [G]. This ought to minimise some of the disputes around contact.
5.2My views around the abilities and commitment of each adult party to support and love this boy remain unchanged. [The sister] is unquestionably devoted to [O] and, if [O] did not have a parent who was willing and able to care for him, I would have no hesitation in fully supporting her ability and capacity to provide wonderful parenting to her little brother. [O] loves her and her husband [O’s brother-in-law] and he is both comfortable and relaxed in his world with them. [The father] and his wife [J] are also committed to caring for [O]. My observations of their behaviour as parents toward their daughter [T] and [O] support my view that they too are competent and loving parents. Each time I have seen [O] with his father, I have observed an increasing level of familiarity and connectedness. I note, however, that [O], is not quite as relaxed with his father and step-mother as he is with his sister and her husband. This is not at all surprising given the time he has spent with each of these families.
5.3There is a sense that the issue of culture has detracted from other critical aspects of this matter. It has been suggested that my previous report was biased against Aboriginal culture in favour of Torres Strait Culture. Obviously, [O’s] cultural identity will be comprised of both cultural heritages and it would be absurd to suggest that one culture does or should be priorities [sic] above the other. The issue is probably more around which family might more willingly expose [O] to the alternate culture. The fact that [O] knew very little, if anything, of his parental cultural heritage until relatively recently suggests that this may not have been a high priority for [O’s] maternal family. Nonetheless, the court can but hope that whoever [O] lives with, he will maintain a strong and appropriate cultural awareness of both Aboriginal and Torres Strait culture.
5.4The other issues that speak to the ‘best interests’ for this child are around his identity formation – in every sense. It was pleasing to hear [the sister] and [O’s brother-in-law] acknowledge that [O] does have a right to have a relationship with his father and that it would be wrong to discourage or thwart a relationship between them. Certainly, the fact that [O’s] other young siblings live with their respective fathers, suggests that this arrangement is accepted with the maternal family. There is abundance [sic] evidence that speaks to the importance of the parent-child attachment, parent-child identification and parent-child belonging. Strong and functional formation of the afore-mentioned concepts provide children with a stronger opportunity to create more functional adult lives and relationships. [Footnote: Prof Guy Diamond: Attachment Based Family Therapy Training, Brisbane, January, 2009.] Conversely, children that are denied (for whatever reason) strong and loving parent-child relationship are at significantly greater risk of poor outcomes (across a range of issues) in adulthood. Although [O] has been afforded a level of protection from long-negative effects following his mother’s death, from his maternal extended family, it is critical that he has the greatest opportunity available to him to be nurtured, supported and parented. As noted in my previous report, I believe that this will be achieved most fully via living with his father and continuing to enjoy the benefits of all the relationships he currently has with the maternal family. I recommend that [O] live with his father and spend time with his siblings and extended maternal family during school holidays.
5.5It appears that the most contentious issue is likely to be how and when this change in living arrangement might occur. Given that [O] is obviously more familiar with [the sister], it seems reasonable that the transition to his father’s family ought to occur in such a way that [O] has the opportunity to build a deeper relationship with his father prior to a full transition of residence occurs. I expect that this could occur within the first half of 2009. I believe that visits for weekends, public holidays (long weekends), school holidays and perhaps even a part day or so off school (to compensate for travel time), is likely to be afford [sic] [O] the opportunity to feel more comfortable with his father and develop a deeper bond with [J] [the father’s wife] and his [i.e. [O’s]] sister. If [O] has frequent contact with his father over the next say four months, I would expect that he could start Term 3 at [G].
5.6The issue of telephone contact remains difficult – especially because [O] – like his father – is not a great telephone talker. Whilst I encourage and even recommend telephone contact as an adjunct to visits, I would not wish to be prescriptive in this regard. Neither would I want “telephone contact performance” to become a reference point or marker for “parental performance”.
Having set out this extract, his Honour said he noted in particular paragraph 5.4, in which the report writer “talks of the fact that there is an abundance of evidence that speaks to the importance of the parent/child attachment, parent/child identification and parent/child belonging.” He said this would be “particularly underlined in the quotations which will be included in the reasons and the reference to Professor Guy Diamond”. (This part of the extract was duly underlined when his Honour’s ex tempore reasons were published.)
His Honour then said he had noted the criticisms made of the report writer’s report but went on to say:
Those criticisms did not specifically address that particular piece of evidence included in the report writer’s report. To my mind, that sentence does deserve to be highlighted. The Court’s attention was drawn specifically to it by … counsel on behalf of the father.
It is clear that the sentence to which his Honour was referring in this passage was the one in paragraph 5.4, where the report writer referred to the abundance of evidence concerning the “importance of the parent-child attachment, parent-child identification and parent-child belonging”.
Although it clearly had other important ramifications for the outcome of the proceedings, it seems his Honour regarded the preceding discussion of paragraph 5 of the report as linked to the submission relating to the decision in Makita. This appears to be so because immediately after the discussion concluded his Honour recorded that the Makita decision “does not, in this particular case, impact upon my findings that the report writer had a proper opportunity to observe [O] with both parties and their families”.
His Honour went on:
59.It seems to me to be the case that the Aboriginal heritage and the Torres Strait Islander heritage, whilst they are extremely important issues in this case, ought not be issues which totally subsume the case. The Court must consider matters and issues which go beyond the cultural issues to which I have referred. There really is no evidence before the court to rebut the expert evidence of the report writer of the importance of a parent/child attachment. I accept the evidence of the report writer. I accept her recommendations.
60.It is important to note at this point that I also accept the following opinion noted by the report writer in evidence in Court today that in respect of her opinion she is keen for [O] to live with the person whom she believed can “nurture his strongest sense of self that he can have”. I accept that evidence and I accept that the evidence is consistent with her recommendation as to where [O] should live primarily and it is consistent with paragraph 5.4 of her written report, in particular that sentence to which I just referred.
61.The Court has had an opportunity to observe both the father and the [sister]. Having regard to the objects of Part VII of the Act (quoted earlier) which appear in s.60B and having regard to the evidence generally – even if the Court were to leave the report of the report writer to one side – for the reasons that I have stated herein (in particular I note paragraphs 1 – 48 inclusive and paragraph 62) I would exercise my discretion in favour of a conclusion that the child should live primarily with the father. Having said that, I in no way resile from the findings I made earlier that the report writer’s opinions are both valid and ought be accepted by the Court.
It is important to record that paragraphs 1 to 48 inclusive and paragraph 62 of the reasons, to which the Federal Magistrate referred in the paragraph just quoted, were all of the paragraphs in his reasons which did not relate to the report writer and her reports.
Paragraph 62 was the final paragraph in the reasons. Here the Federal Magistrate recorded it was important to refer to the father’s decision to move to G, which he found was “essentially a child-focussed decision”. He said the move would make it much easier for O and his transition from the home of the sister. He said the fact the father was living in G would allow O to spend regular time with his family in Brisbane over the next two years and, in fact, he would be primarily living with his sister for the next six months.
Grounds of Appeal
The amended Notice of Appeal contained the following grounds.
1.Abandoned.
2.In the circumstances of the Father’s limited involvement with the child since 2002 (a matter accepted by all parties at trial), His Honour failed to give reasons, or adequate reasons to support his findings that:
(a)The child has an excellent relationship with his Father;
(b)The child will get along well with his nuclear family;
(c)The Father’s move to [G] was child focused;
(d)That the Father was the party most able to nurture the child’s strongest sense of self.
3.Further to the matters set out in (2) above, His Honour’s findings were contrary to the weight of the evidence.
4.His Honour erred and his discretion miscarried by placing undue emphasis on the placements of the subject child’s siblings with their Fathers upon the death of their Mother without reference to those Fathers’ involvement with their children prior to the Mother’s death.
5.In considering the relevant s60CC matters, His Honour erred and his discretion miscarried by placing emphasis on the Father’s parental intentions, as opposed to his actual conduct as a parent.
6.His Honour erred and his discretion miscarried by
(a)accepting and placing weight on the Family Report, and/or
(b)by finding that Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 had no application to this matter and in doing so, His Honour failed to give reasons, or adequate reasons to support this finding.
7.In the premises:
(a)His Honour erred and his discretion miscarried by placing undue emphasis on the status of the Father as a parent.
(b)His Honour failed to give reasons, or adequate reasons, to explain why he was prepared to accept the Appellant as a parent for the purposes of s60CC(3), but not for s60CC(2)(a)
(c)His Honour erred in law in treating the Appellant as a parent for some s60CC purposes, but not others.
8.When considering the s60CC factors, including s60CC(3)(h) and (6), His Honour erred in failing to inform himself of any anthropological evidence and/or “well recognised peer reviewed research” concerning the parties respective Aboriginal and Torres Strait Islander cultures.
Although the amended Notice of Appeal proposed that the Full Court re‑exercise the discretion of the Federal Magistrate, all counsel agreed that if the appeal was allowed there would be no alternative other than for the matter to be remitted for rehearing.
Ground 7 – inconsistent application of the legislation
We will address Ground 7 first. We do so not only because all counsel addressed it first in their submissions, but also because in dealing with this ground it will be convenient to set out the statutory provisions which provide the legal context in which the decision was made.
Although framed in three parts, the ground raises two issues. The first asserts error by the Federal Magistrate in placing undue emphasis on the status of the father as a parent. The second complains of the contradiction in his Honour having been prepared to treat O’s sister as a parent for the purposes of the “additional considerations” in s 60CC(3) but failing to treat her as such when considering the one relevant “primary consideration”.
The ground raises vexed issues concerning key provisions in Part VII of the Act. It highlights some of the difficulties associated with a law which seeks to guide the exercise of the discretion required to ensure that the outcome of proceedings is the one most likely to promote the child’s best interests. The difficulties are particularly acute when the child is of Aboriginal or Torres Strait Islander origin.
We will postpone until later in these reasons our discussion of the tension that arises when interpreting the legislation as it relates to Aboriginal and Torres Strait Islander children. This will also involve deferment of consideration of the first limb of Ground 7. This is more appropriately discussed with the complaint concerning the family reports, upon which his Honour relied heavily in placing weight on the father’s status as a parent.
At this stage we will focus our attention on the second limb of Ground 7, which raises an issue of general application in disputes involving a “parent” and a non-parent. In tracing the provisions relevant to this discrete topic we will nevertheless flag the provisions in Part VII that relate to Aboriginal and Torres Strait Islander children.
The distinction between parent and non-parent first appears in the opening provisions of Part VII, namely ss 60B(1) and (2), which set out the objects of the legislation and the principles underlying those objects. These provide:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(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.
(2) The principles underlying these objects are that (except when it is or 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).
These provisions are followed by s 60B(3), which seeks to amplify the meaning of s 60B(2)(e) in cases involving Aboriginal or Torres Strait Islander children. To this point in the legislation, nothing is said to suggest that the objects and underlying principles, insofar as they create a distinction between parents and non-parents, should be applied differently when dealing with Aboriginal or Torres Strait Islander children.
Subsection 60B(3) provides:
For the purposes 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.
The next important, indeed overarching, provision, is s 60CA which provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
It will be noted that there is no reference in this provision to any distinction between parents and non-parents. The child’s best interests remain the paramount consideration regardless of the biological (or other) connection of the child to the parties to the proceedings.
It will also be noted that s 60CA introduces the concept of a “parenting order”. That expression is defined by s 64B which relevantly provides:
(1) A parenting order is:
(a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
(2) A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
…
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
It will be seen that s 64B(2) makes clear that parenting orders, including orders for “parental responsibility”, may be made in favour of non-parents as well as parents. The point is reinforced by s 64C, which provides that “a parenting order in relation to a child may be made in favour of a parent of the child or some other person”. Section 65C goes on to provide that a parenting order may be applied for by a parent, a grandparent, the child him/herself, and “any other person concerned with the care, welfare or development of the child”.
The expression “parental responsibility” is defined by s 61B to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Hence an order can be made for a non-parent to have parental responsibility or to share that responsibility with another person who may or may not be a parent. However, s 61C makes clear that in the absence of an order of the court or parenting plan, only the “parents” of a child have “parental responsibility”.
The allocation of parental responsibility can have important consequences for the way in which a court deals with an application for parenting orders. This is so because s 65DAA provides that “If a parenting order provides … that a child’s parents are to have equal shared parental responsibility” then the court must “consider” whether the child spending equal time with each of the parents would be in the child’s best interests and reasonably practicable and, if it is, then the court must “consider” making an order to provide for the child to spend equal time with each of the parents.
Section 65DAA goes on to provide that if, in such circumstances, the court does not make an order for the child to spend equal time with each of the parents, the court must “consider” whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable and, if it is, the court must “consider” making an order to provide for the child to spend substantial and significant time with each of the parents.
The provisions of s 65DAA do not have any application in circumstances where one parent is given sole parental responsibility. More importantly for present purposes, it is clear that the section can have no application in circumstances where an order is made for a parent to share parental responsibility with a person who is not a parent.
It will be seen from this brief review of the relevant provisions that the legislation makes important distinctions between parents and non-parents. Ultimately, however, orders can be made in favour of either parents or non-parents and, in determining what those orders should be, the best interests of the child remain the paramount consideration.
This brings us to s 60CC, which contains the factors the court must take into account in determining what orders will be in the child’s best interests. It is the Federal Magistrate’s treatment of these factors which is the subject of attack in the second limb of Ground 7. However, before moving to discuss those factors we should also flag one other provision of the legislation which we consider is of considerable importance to this appeal.
This is s 61F, which is in the following terms:
Section 61F Application to Aboriginal or Torres Strait Islander children
In:
(a) applying this Part [i.e. Part VII] 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.
Although we have said we regard s 61F as important, no mention was made of it during the hearing below or in the Federal Magistrate’s reasons. We do note, however, that the sister’s solicitor clearly had it in mind when drafting paragraph 39 of the sister’s affidavit, and she also made specific reference to it in her Case Outline Summary (Appeal Book 182).
We will later explain why we consider this provision has significance in the present appeal. It is sufficient to say here that in the absence of any argument we will proceed on the assumption that s 61F does not have relevance to our consideration of the second limb of Ground 7 – and more specifically, does not have any impact on the definition of “parent”.
The only attempt made in the legislation to assist in interpreting the meaning of the word “parent” is contained in s 4(1), which says that “parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child”. We therefore proceed on the basis that “parent” means a biological or adoptive parent and does not include a person who stands in loco parentis to a child: Mulvany & Lane (2009) FLC 93-404 per May and Thackray JJ at [32]. See also Hort & Verran [2009] FamCAFC 214, per Coleman, O’Ryan and Strickland JJ at [84]. We exclude from consideration for present purposes the difficult issues associated with children born as a result of artificial conception procedures, as to which see the decision of the Full Court in Aldridge & Keaton [2009] FamCAFC 229 at [16] to [22].
Importantly, for present purposes, we accept that the word “parent”, when used in relation to a child, does not include a person who may be treated as a parent of that child by the customs of people of Aboriginal or Torres Strait Islander background. Whether this assumption can withstand critical analysis is a matter best left to an occasion when the Court has the benefit of argument on the possible application of s 61F.
We turn now to consider s 60CC, which on its face maintains clear distinctions between a “parent” and a non-parent. To assist understanding of our discussion, we will set out the section in full, including the two paragraphs containing the “primary” and “additional” considerations the court must take into account. We have bolded some parts of the text to draw attention to those factors which specifically refer to “parents” and those which may have application to a party to the proceedings who is not a “parent”.
Section 60CC How a court determines what is in a child’s best interests
(1) Subject to [an irrelevant matter], in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations 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.
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(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 predecessor to s 60CC was s 68F(2). This now repealed subsection contained the list of matters the court was required to take into account in dealing with disputes concerning children. Although that list of factors contained some that referred only to parents, this did not seem to give rise to any particular difficulty. This was to change following the amendments made to the legislation in 2006. The amendments to Part VII placed a sharper focus on parents in the objects and principles underpinning them. They also provided what might appear to be a hierarchy in the importance to be attached to some of the factors. In particular, the first of the “primary considerations” places a particular emphasis on the benefit to a child of having a meaningful relationship with both parents.
There have now been a number of cases which have come before the Full Court involving a parent and a non-parent in which it has been asserted that the trial Judge or Magistrate erred because of an inconsistent approach taken in addressing the relevant factors. This has especially been so where although one of the parties is not a “parent” within the meaning of the Act, they have been regarded within the family as if they were a “parent”. The difficulty has also arisen in other cases where one of the parties has been the primary carer to the child and hence largely stood in the place of a “parent”. For an example of each of these types of cases see Mulvany & Lane (supra) and Hort & Verran (supra).
In both Mulvany & Lane and Hort & Verran an issue was raised on appeal arising out of the approach taken at first instance to the application of s 60CC(3)(c). It will be noted that this paragraph makes no reference to the willingness and ability of a non-parent party to facilitate, and encourage, a close and continuing relationship between the child and one or both of the child’s parents. Yet, in a case involving a non-parent (who may have played and seeks to play a significant role in a child’s life), it would seem essential to address that person’s willingness and ability to facilitate the relationship between the child and the child’s parent(s).
Anxious to address this factor, some judicial officers have treated the non-parent as a parent, or as if a parent, when addressing s 60CC(3)(c). In the present case, the Federal Magistrate expressly noted that this factor refers only to parents but said he proposed to consider the provision nevertheless.
While we accept this approach has the benefit of grouping findings in a way that provides an easy flow to the judgment, it has become apparent that it can also give rise to suggestions of error. The appearance of error can be avoided by a simple means when addressing factors such as ss 60CC(3)(c) and (e), which are referable only to a “parent”. To the extent that the subject matter is also relevant to a non-parent, discussion can be delayed until the point in the reasons where the judicial officer is addressing s 60CC(3)(m), which refers to “any other fact or circumstance that the court thinks is relevant”.
The suggested error in the present case, and in the earlier cases, arises out of the fact that having treated the non-parent as a parent, or as if a parent, for the purposes of discussion of s 60CC(3)(c), the judicial officer has not been willing to regard the non-parent as a person to whom s 60CC(2)(a) applies. It will be recalled that this is the paragraph which contains the first of the primary considerations, namely “the benefit to the child of having a meaningful relationship with both of the child’s parents”.
In our view, there can be no doubt that s 60CC(2)(a) has no application to a person who is not a “parent”. This is so because the paragraph refers only to “parents”, and there is no extended definition of that word – save for the one incorporating adoptive parents (and query the potential application of s 60H). However, that fact does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75].
On our analysis, the various factors contained in ss 60CC(2) and (3) may be seen as a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another. Sensibly, the legislature has recognised that it cannot provide an exhaustive set of signposts as the destination is uncertain and the routes by which it may be reached are as infinite as the factual circumstances that present themselves in courtrooms every day.
This is why the legislature has included a “catch-all” provision, s 60CC(3)(m), which ensures the court can take into account every factor that may assist in reaching the right destination. It is important to keep in mind, however, that s 60CC(3)(m) is contained within the set of factors deemed to be “additional considerations”. Therefore, any matter not captured by s 60CC(2) cannot be a “primary consideration”, regardless of how important it may be in determining the outcome.
For the reasons above, we consider the Federal Magistrate would have erred if he had treated O’s sister as a “parent” for the purposes of s 60CC(2)(a), as that provision has no application to someone who is not a “parent”.
Although the Federal Magistrate did discuss the willingness and ability of O’s father to facilitate and encourage a close and continuing relationship between O and his sister (and vice versa) when dealing with s 60CC(3)(c), he did so having expressly acknowledged that the paragraph applies only to parents. It would have made no difference if his Honour had discussed this clearly relevant factor when addressing s 60CC(3)(m).
We accept that when discussing s 60CC(3)(e) the Federal Magistrate did not expressly acknowledge that it too applies only to parents; however, nothing turns on this. His Honour’s treatment of that issue, which was clearly relevant, has not been the subject of any complaint. Furthermore, his treatment of that factor needs to be read in the context that his Honour was giving his reasons ex tempore and had already demonstrated that he was alive to the issue that some of the “additional considerations” do not apply to non-parents.
For the sake of completeness, we observe finally that in her closing address at trial, counsel for the sister accepted that the Federal Magistrate could not treat O’s sister as a “parent” for the purposes of s 60CC(2)(a), but she did invite his Honour to treat her as a parent for the purposes of s 60CC(3)(c) (Transcript, page 158 and 159).
For these reasons we do not consider there is any merit in the second limb of Ground 7.
Before moving from this ground, we should record that some of the remarks we have made concerning the application of s 60CC(2)(a) may seem at odds with statements made by May and Thackray JJ in their joint judgment in Mulvany & Lane (supra) and remarks made by Finn J in the same case.
May and Thackray JJ said:
75.… Whilst we accept the learned Federal Magistrate was right to conclude the father was not a “parent” within the meaning of the Act, we consider he erred in the way he allowed that conclusion to affect the process of reasoning by which he reached his decision.
…
78.In our view, his Honour was quite right to consider and make findings in relation to all of the relevant “additional considerations” in s 60CC(3), even though he acknowledged some had no application to the father because they relate only to a “parent”. However, for the sake of consistency it seems to us his Honour should have adopted the same approach when discussing s 60CC(2)(a). What occurred instead is that the father was treated as a “parent” for some purposes but not others.
In the present proceedings, counsel for O’s sister relied upon paragraph 78 of Mulvany & Lane in support of her proposition that the Federal Magistrate, having treated O’s sister as a parent for the purpose of s 60CC(3)(c), erred in refusing to regard her as such for the purpose of s 60CC(2)(a). However, we do not regard May and Thackray JJ as saying that a non-parent must be treated as a “parent” for any of the provisions in s 60CC. They have clearly said the opposite in relation to the primary considerations in the portion of paragraph 75 quoted above.
The remarks made by May and Thackray JJ in Mulvany & Lane need to be considered in the particular factual context of that case. The party referred to as “the father” had always understood he was the biological father of the child. The child also understood that he was his biological father. The fact that “the father” was not a biological parent only came to light following testing in the period prior to the trial. The whereabouts of the biological father were unknown and the mother intended that “the father” would have an ongoing relationship with the child. In these circumstances the maintenance of the relationship between the child and “the father” was clearly a matter of considerable importance.
We understand May and Thackray JJ to have said no more than that in these factual circumstances it would have been appropriate for the Federal Magistrate to have discussed the importance of the child having a meaningful relationship with “the father”. This does not mean, however, that the benefit to the child of maintaining a relationship with “the father” in that case could be treated as being a “primary consideration”.
Our interpretation of their Honours’ decision is supported by what they said in paragraph 82 (emphasis added):
82.Such discussion, however, is ultimately unhelpful. It diverts attention away from the central enquiry, which is to determine the outcome that will be best for the child. Instead, it focuses attention on semantic issues about whether relevant matters should be discussed by reference to one s 60CC factor instead of another. In our view, provided his Honour gave due weight to all relevant factors, it would matter not whether he considered the child’s very important relationship with the father by reference to s 60CC(2)(a) or by reference to one of the additional considerations.
Whilst we are in general agreement with what May and Thackray JJ said in paragraph 82 of their judgment, we would add that if the maintenance of a relationship between the child and a non-parent is discussed by reference to s 60CC(2)(a) it should be made clear that the factor is not being treated as if it were a “primary consideration”. In fact, given the number of appeals coming before the Court related to this topic, we consider the safer course may be to delay discussion of that issue until the “additional considerations” are being addressed.
In dealing with this same issue, Finn J said in Mulvany & Lane:
5.I am prepared to accept (at least as presently advised) that his Honour was correct in concluding that the father was not a “parent” as that term is used in Part VII of the Act.
6.Having reached that conclusion, his Honour was not prepared to consider or treat the father as “a parent” for the purposes of s 60CC(2) (primary considerations in determining the child’s best interests) or of s 61DA (presumption of equal shared parental responsibility). Yet he was prepared to consider or treat the father as a parent for the purposes of s 60CC(3) (additional considerations in determining the child’s best interests), saying in this regard:
Because of the nature of the relationship between the [father] and the child I consider it appropriate in the special circumstances of this case to consider the relevant subsections within s.60CC(3).
7.Nowhere does his Honour explain why he adopted this apparently inconsistent approach to the father’s position under the various provisions of the legislation which he applied in determining this case. In my view this is a significant flaw in his Honour’s reasoning.
…
10.However, this argument overlooks what in my view is another significant flaw in his Honour’s reasoning, and that is, his approach to, and application of, s 60CC(2)(a). That paragraph provides that a primary consideration in determining what is in a child’s best interests is “the benefit to the child of having a meaningful relationship with both parents”.
11.His Honour determined (in paragraphs 20 and 21 of his reasons) that as the mother was the only parent “who is a party to the proceedings”, it would follow that the only primary consideration relevant in this case is the benefit of the child having a meaningful relationship with the mother. His Honour then went on to determine (in paragraphs 31-33 of his reasons) that the mother could only properly discharge her obligations as a parent if she was living in a country where she was happy and well settled, and that this could only be in Hong Kong. Therefore for the child to have a meaningful relationship with the mother, he would have to live with her in Hong Kong.
12.In my opinion, it was not open to his Honour to interpret s 60CC(2)(a) in the way in which he did, that is, in effect to hold that where a child only has one parent participating in the parenting proceedings, it will be a primary consideration in determining the child’s best interests, that the child have a meaningful relationship with that parent. The legislation does not say this. Indeed it could well be asked why, if his Honour was prepared to place an interpretation on s 60CC(2)(a) other than an interpretation clear on its plain words, did he not interpret the expression “parents” to include the father in this case?
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15.It is indeed unfortunate that given the now very detailed provisions of Part VII and the acknowledgement in that Part of the important roles that persons who are not natural parents of a child can have in a child’s life (see, for example, s 60B(2)(b)), that the legislation does not give some clearer indication of the weight to be attached to the child’s relationship with a person other than his or her parent, compared with the child’s relationship with the natural parent in the determination of proceedings between a parent and a person other than a parent.
16.As the legislation currently stands, and assuming that it is correct that “parent” means only a natural or adoptive parent, it would seem that in a case such as this, the court can only reach its determination in parenting proceedings on an application of s 60CC(2)(b) (protection from harm) and of the additional matters in s 60CC(3) so far as they expressly or impliedly refer to a person other than a parent.
In view of what was said in paragraphs 15 and 16 of Finn J’s reasons, we do not necessarily think her Honour is saying that a non-parent, if treated as a parent for the purposes of the additional considerations, ought also be treated as a parent for the purposes of the primary consideration in s 60CC(2)(a), though the content of paragraph 6 and 7 of her reasons may lead to that conclusion. To the extent that Finn J may have come to that conclusion, we respectfully disagree.
It does occur to us, however, that what Finn J may have been saying in paragraph 12 is that, as a matter of statutory construction, s 60CC(2)(a) can never have application when one parent has died because in such circumstances it is not possible for the child to have “a meaningful relationship with both of the child’s parents”. Support for the suggestion that this is the way her Honour may have construed the provision can be found in what she said in paragraph 16.
This was not a construction urged on us by any counsel. We do note, however, that another experienced judge has taken a similar approach to that adopted by Finn J by suggesting that in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents “fall away”.
In Potts & Bims [2007] FamCA 394 at [8] Moore J discussed the statutory provisions in the context of a case involving both of the parents and the maternal grandparents. Her Honour concluded that to the extent the matters in ss 60CC(2) and (3) might be relevant, they could only be considered by reference to those factors that do not refer to parents, and in particular the catch-all provision of s 60CC(3)(m). We repeat below what Moore J said on this point:
The provisions about children’s arrangements are to be found in Part VII of the Family Law Act 1975. The concept of best interests of the child is at the heart of it and that is designated to be the paramount consideration in making any parenting order. Some Part VII provisions refer to ‘parent/s’ which, given the word’s ordinary meaning and in the absence of an expanded definition or some other descriptor such as ‘party’, means a number of sections do not apply when assessing ‘best interests’ in proceedings that are not between parents but between a parent and a non-parent [eg. relative]. Section 60B(1) and (2) set out the objects of Part VII and the principles underlying them. However, a number are expressed to apply to ‘parent/s’ and so are excluded in proceedings of the latter kind. For example, paragraphs 60B(1)(a), (c), and (d) fall away and what remains is paragraph (b); namely, the object of protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Similarly, paragraphs 60B(2) (a), (c) and (d) fall away as underlying principles and there remains paragraph (b); namely, [‘except when it would be contrary to a child’s best interests’] ‘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)’. With objects and underlying principles as a guide, the determination of what is in a child’s best interests requires the court to consider both ‘primary considerations’ and ‘additional considerations’ set out in s 60CC. But again the use by the legislature of the word ‘parent/s’ in a number of those considerations operates to exclude those factors in proceedings between a parent and non-parent. Falling within that group is the primary consideration in paragraph 60CC(2)(a) and the additional considerations at paragraph (c), (e), and (i). However, that does not mean those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f) [capacity to provide for needs] or, if nowhere else, under paragraph (m) [any other fact or circumstance relevant]. On that same analysis, the presumption of equal shared parental responsibility imposed by s61DA and, if it applies and the order is to provide for equal shared parental responsibility, consideration of the child/ren spending equal time or substantial and significant time, as set out more particularly in s65DAA, are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent. Nonetheless, the particular applications may make it necessary to address those outcomes in any event.
Even more surprisingly, the report writer adopted the same approach when preparing her second report, even though by that stage she had seen the affidavit of the sister’s solicitor in which complaint had been made about the Aboriginal cultural issue having been overlooked in the first report. The report writer once again left it to O’s sister to raise the issue with her. Because the sister made no mention of it, the report writer again left the matter unexplored.
Although the report writer said in her oral evidence that neither culture should be prioritised as being better or more important than the other, any fair reading of her two reports would lead to the conclusion that issues associated with O’s Torres Strait Islander background were treated as being of crucial importance and his Aboriginal background of no importance at all.
The importance of the biological connection between parents and children
We turn now to the complaint concerning the emphasis placed by the report writer on the biological connection between children and their parents. Our discussion of this issue will also deal with matters about which we postponed discussion when dealing with other grounds of appeal. The first of these was the complaint in the first limb of Ground 7 in which it was asserted that the Federal Magistrate placed undue emphasis on the father’s status as a parent. The second was the issue we touched on in Ground 8 concerning the possibility of his Honour having informed himself about matters relating to the relevance of the concepts of “parent-child attachment, parent-child identification and parent-child belonging”.
The fact that the evidence of the report writer relating to “parent-child attachment, parent-child identification and parent-child belonging” was of fundamental importance to the Federal Magistrate in coming to his decision can be seen at various points in his reasons. This includes the underlining of paragraph 5.4 of the report writer’s second report and the statement in paragraph 59 of the reasons that:
… There really is no evidence before the Court to rebut that expert evidence of the reporter writer of the importance of a parent‑child attachment. I accept the evidence of the report writer. I accept her recommendations.
The Federal Magistrate’s acceptance of the evidence of the report writer on this point, and its importance to the outcome of the proceedings, can also be seen by his Honour’s acceptance in paragraph 60 of his reasons that it was the father who could “nurture [O’s] strongest sense of self that he can have”.
In our view the Federal Magistrate’s decision must have turned on this evidence, given that it was accepted (or was not in issue) that:
· the report writer found O was “securely attached” to his sister (Transcript page 128);
· the sister had done an “exceptional” job in bringing up O (“exceptional” being the adjective used by counsel for the father in his closing submissions – Transcript, page 151);
· the father had been largely absent from O’s life;
· the father’s wife had only ever spent one period with O;
· O had never met any of his paternal relatives until a few weeks before trial;
· the plan to take O to the Torres Strait to live (which was the cornerstone of the father’s original case) had been abandoned at the last moment to be replaced by an arrangement where he would spend up to two years on the mainland before relocating O to the Islands.
Put another way, apart from what would seem to be the undoubted personal qualities of the father and his family, and the fact that he had developed an excellent relationship with O, there did not seem to be a great deal favouring the father’s case save for the fact, as he said in his evidence, “[I am] here now and I am Dad” (Transcript, page 93).
Before proceeding further, we will set out the only passage in the cross-examination relating to the emphasis placed by the report writer on the parent-child connection. It is important that we do so, as it will indicate that the report writer was not given an opportunity to address one matter which we consider to be of importance (Transcript, pages 101 to 102).
MS BRASCH: [The report writer], you would accept the proposition wouldn't you, or tell me if you do accept the proposition that being a parent of itself, the parenting name, does not necessarily mean that you stand possessed of the positive qualities that parenthood entails?---Not in and of itself, no.
And of itself, being a parent doesn't necessarily speak to a person's actual parental capacity?---No.
Parental responsibility?---No.
Facilitating relations with other important people in a child's life?---No.
There is more to being a parent than just the name, "parent"?---Yes.
Would you accept too that there's more to being a parent than the name and being a party to litigation, for example, if I told you the father gave evidence yesterday that "I'm here, I'm the father and I'm here" - as in the litigation, and you accept that he's the respondent in these proceedings don't you?---Yes.
There's more to parenting than just the name and being here as part of the proceedings?---Yes.
Is it also the case that someone could be - and I'll use the father's terms for [the sister] - a mother figure, is how he described her yesterday, with respect to [O] ... - a mother figure. So whilst you may not be "the parent" in the biological sense, you could still exhibit those kind of qualities of parenting that I just raised with you?---Yes.
It will be noted that the report writer properly conceded that there are limitations on any general proposition that a biological parent should be preferred over a non-parent and acknowledged that a person who is not a parent can nevertheless provide the “kind of qualities of parenting” referred to in the cross-examination. She did not, however, depart from the fundamental proposition contained in both her reports that ideally O should be living with a biological parent.
It will be recalled that in her first report the report writer said that whilst she acknowledged “the importance of sibling relationships, they generally do not supersede a parent‑child relationship”. She also made clear her preference about the desirability of “a functional and committed parent” providing “support, nurturance and identity formation” for a child. This latter proposition was followed by the statement that “[i]n this matter, there are also cultural considerations that provide further weight to the importance of identity formation”. That statement was left unexplained, but we can safely assume that the “cultural considerations” being considered were those associated with the Torres Strait Islander culture, since the Aboriginal culture had not been examined.
No reference was made in the first report to any research to support any of the propositions/assumptions made by the report writer. There was, however, in the second report a reference in a footnote to a presentation by Professor Guy Diamond at “Attachment Based Family Therapy Training” in Brisbane in January, 2009. This appeared in the portion of the report in which the report writer said there was abundant evidence about “the importance of the parent-child attachment, parent-child identification and parent-child belonging” and where she stated the converse proposition that “children that are denied (for whatever reason) strong and loving parent-child relationship are at significantly greater risk of poor outcomes (across a range of issues) in adulthood”.
We are prepared to accept for the sake of argument that in a dispute involving a child of European/white Australian origin, it may be legitimate to assert such propositions as a matter of common understanding or experience. We hasten to add, however, that such general propositions inevitably need to be considered carefully against the backdrop of the factual circumstances of each case.
We are unable to accept, however, that such propositions can be applied to indigenous families without any consideration at all of the cultural context. In this regard we note there was no indication in the material that Professor Diamond had purported to suggest that his views had application to indigenous children.
We accept that no alternative research was put before the court, but it needs to be kept in mind that the reference to Professor Diamond’s opinion was included only in the second report, which was published on the eve of the trial. It should also be kept in mind that O’s sister was legally aided, and we note that reference was made during the trial to the difficulties that had been experienced in obtaining an extension of funding to ensure expert evidence was placed before the court.
There was, however, evidence before the court which, in our view, should have caused the Federal Magistrate to have entertained serious reservations about the applicability of the research relied upon by the report writer.
First and foremost was the assertion of the sister, which was accepted by his Honour, that in the Wakka Wakka tradition children are raised by a sibling when a parent dies. Whilst his Honour was entitled to accept that there must be some exceptions to that rule, it was nevertheless accepted as being the custom for the Wakka Wakka people. Clearly then, the Wakka Wakka people do not accept there are inherent advantages associated with children being raised by a surviving parent rather than an older sibling. (Their different concept of family might also be gleaned by reference to the fact that O’s sister referred to her grandmother’s cousin as her “Nanna” (Appeal Book 82 ))
In the absence of evidence it is speculative to consider why the Wakka Wakka people have, over countless generations, come to the view that children should be raised by a sibling when a parent dies. Perhaps it is because of their practice of women having children to many partners. A custom by which younger children are raised by the eldest sibling has the effect of keeping the sibling group together, rather than being dispersed amongst a variety of fathers. Perhaps the custom also has something to do with the longevity of indigenous people. Whatever may have been the position prior to the arrival of Europeans, we take notice of the fact that the average lifespan of indigenous people is now 17 years less than that of non-indigenous people (ABS statistics). That significant difference between indigenous and non-indigenous people may well be seen as highly relevant in deciding whether it is best for a child to be placed with a sibling rather than an older surviving parent.
There was another piece of evidence before his Honour which should have alerted him to the fact that the indigenous peoples of Australia do not subscribe to the benefits that European/white Australians see attaching to the modern nuclear family (which arguably may have as much to do with the efficient transfer of private property as it does to emotional benefits flowing to children). The piece of evidence to which we refer was that given by O’s father in his trial affidavit where he said that in the Torres Strait Islands, “it is common for children to be raised by extended family members” (Appeal Book 131).
Whilst we accept that the Federal Magistrate was not referred to any writing on this topic, we 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 non-indigenous 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.
Accordingly, judicial officers should be aware of (or remind themselves of) the matters set out in the extracts below from the article by Professor John Dewar (former Chair of the Family Law Council) entitled “Indigenous Children and Family Law” published in (1997) 19(2) Adelaide Law Review 217.
In defining kinship, or its conceptions of relationship, Australian family law reflects its Anglo‑European heritage. So, when it comes to constructing legal relationships around children, the law tends to assume a nuclear model: that is, that a child will have two parents for legal purposes, generally those who are its biological mother and father. These are the people who automatically have legal status with respect to the child, a status that they never technically lose. Thus, s61C of the Family Law Act 1975 (Cth) states that each parent of a child has parental responsibility for it, and that this responsibility survives any changes in the relationship between the parents. “Parental responsibility” for the child includes all duties, powers, responsibilities and authority a parent might have in relation to a child. The recent changes to the Family Law Act, which introduced the concept of shared and continuing parental responsibility between biological parents, have, if anything, served further to entrench this nuclear model in the law. Thus, according to the principles underlying the new Part VII, contained in s60B, children have a right to know and be cared for by both their parents, but not by other significant figures in their lives; and parents (but not others) share duties and responsibilities for the care, welfare and development of their children, and should agree about their children’s future.
…
Other departures from the nuclear model can be found in the s68F(2) checklist, which requires a court to take account of a child’s relationships with persons other than its parents in making decisions about the child’s best interests. Thus, in addition to paragraph (f) already discussed, paragraph (b) refers to “the names of the relationship of the child with each of the child’s parents and with other persons”; paragraph (c)ii) refers to “the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from … any other child, or other person, with whom he or she has been living”; and paragraph (e), which talks of “the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs”. Finally, the statement of objects underlying Part VII talks of the child’s right of contact with parents and with others “significant to their care, welfare and development”. However, each of these provisions has to be seen as a qualification of, or as an exception to, a basically nuclear, two‑parent model of parent‑child relations.
In general, then, the Family Law Act and the child support regime enshrine particular assumptions about relationships between children and parents. While these may seem natural to many members of the dominant European culture, they become, in the context of Indigenous cultures, a serious barrier to the sort of increased flexibility to which the [Australian Law Reform Commission] refers. In the case of support obligations in particular, the current law amounts to a clear breach of the principle of substantive equality, stated to be a cornerstone of multiculturalism, in the sense that the current law “unintentionally actS to disadvantage certain groups of Australians”. Yet it is the supposed naturalness of these assumptions, and the powerful ideology of the nuclear family surrounding them, that renders them invisible to many. From the point of view of the Indigenous community in particular, this nuclear model doesn’t fit at all well with Indigenous child-rearing structures or practices.
…
Although practices vary between Indigenous groups, it seems generally true that conceptions of kinship and of good child‑raising practice are significantly different from the nuclear model. Kinship relations are constructed in different ways from Western kinship systems, with the term “mother”, for example, often being used to cover a much wider group of people than the biological mother. Kinship systems amongst many Indigenous groups are classificatory, which means that a much larger proportion of the social group, perhaps all members of the group, are accounted for in terms of kinship. Western kinship systems, by contrast, consist of a much narrower range of relations. As Bringing them Home says: “By privileging parents and relegating the rights of other family members, the Australian family law system conflicts with Aboriginal child‑rearing values”. In addition, child‑rearing practices often differ markedly: whereas non‑Indigenous culture tends to emphasise permanence and stability as positives for children, Indigenous culture sees movement of children, either geographically or between or within kinship groups, as beneficial. As Bringing them Home argues, “by privileging stability of residence, the system similarly entrenches a bias against Aboriginal practice of mobility of children amongst responsible adults and their households”.
It will be noted that Professor Dewar made reference to the publication Bringing them home (1997). As is well-known, this was the Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families. It was a seminal document in informing many areas of public policy relevant to indigenous children. The Report was critical of the way some cases involving indigenous children had been dealt with in the Family Court. The Report (at page 486) contained the following observations and gave an illustration to explain why at least two indigenous groups prefer children to be raised by persons other than their biological parents:
The Family Court clearly has preferred the biological parent over a disputant extended family member in making custody (now residence) orders, although there is no presumption that that should be the case. Nevertheless, the Court, at least in reported cases, has yet to prefer an Indigenous child’s grandmother, for example, over the child’s natural, non‑Indigenous father or mother. Moreover, section 61C recognises only the parental responsibility of each of the biological parents and fails to recognise the child‑rearing obligations of others.
By privileging parents and relegating the rights of other family members, the Australian family law system conflicts with Aboriginal child‑rearing values. In Aboriginal societies child‑rearing responsibilities are shared.
[In Arnhem Land, NT and Mornington Island, Qld] it was the responsibility for an Aunt or Uncle to grow up the child of their sister or brother. It is a belief amongst Aboriginal people living in these areas that because an Aunty or an Uncle are not too emotionally involved with the child that they are able to make the best decisions for his education needs and the future role of the child in becoming a responsible member of the Aboriginal family group (Randall 1982 page 342).
There are many other well-known publications which, in retrospect, can be seen as drivers leading to the amendment of the Act in 2006. We will mention only one here since reference was made to its author in the proceedings below. It is also a publication which counsel for O’s sister now submits his Honour should have taken into account in arriving at his decision. It is of particular importance because of its focus on what the author argued were the Anglo‑European assumptions being made at the time by report writers when assessing indigenous families.
The article to which we refer is that of Mr Stephen Ralph, who at the time was the Director of Court Counselling in the Family Court of Australia in Darwin. He was also responsible for overseeing the Family Court’s Indigenous Family Liaison program. His article, entitled “The Best Interest of the Aboriginal Child in Family Law Proceedings”, was published in (1998) 12(2) Australian Journal of Family Law 140. The following are the extracts which seem to us to have particular relevance to the present proceedings (footnotes omitted):
Family assessment as employed generally by counsellors is stepped in the traditions of western psychology, with its emphasis upon the individual, and based upon modern Anglo‑European notions of social and family organisation. 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. Of particular concern is the possibility that counsellors who have limited knowledge or experience in working with Aboriginal families may produce reports that do not adequately address the issue of the child’s cultural identity and consequently the report may fail to attend to vital cultural issues affecting the child’s best interests. This possible deficit in cross‑cultural understanding is one of the issues that the court’s cultural awareness programme seeks to address both through the appointment of Aboriginal Family Consultants and through training of counsellors in this area.
In contrast to the counsellor’s view 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 fluid nature of Aboriginal child‑care arrangements and associated parenting practices was recently noted in an anthropologist’s report to the court regarding an Aboriginal child. The report stated:
It is not at all unusual for Aboriginal children to move freely, even frequently (between kin and community). These movements … are seen as important ways in which children acquire their understanding of the ways in which kinship and country relationships are lived out. They are thus not a sign of disruption as they might be interpreted by non‑Aboriginal people but are an important factor in socialising children.
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 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.
Consideration of the child’s best interests from an Aboriginal perspective is likely to be influenced by the broader consideration of how Aboriginal culture and family life is to be promoted. That is, individual and collective needs are interdependent and as such the needs of the individual child do not take precedence over the needs of the collective. For Aboriginal people, whose culture has been ravaged by colonisation and dispossession, the struggle to preserve and maintain cultural integrity is on‑going and of the utmost importance. In many instances this may mean that the interests of the individual or child may be a subordinate consideration to that of the best interest of the collective group. This viewpoint does not sit comfortably though beside the strict adherence of the Family Law Act to the paramount consideration of the child’s best interests.
Similar concerns to those expressed by Mr Ralph can be found in the decision in In re CP. The Full Court concluded its judgment in that matter by noting (at 83,991) that the case had “highlighted difficulties in the applicability of the Family Law Act to cultural systems of family care which, like the Tiwi way, contemplate circumstances where the child will live and be cared for within a kin network”. The Full Court went on to note that “for formal legal purposes, the many non-biological mothers of a Tiwi child are invisible to the law”.
We have also earlier made reference to the recommendations contained in the Pathways Report and the 2004 report of the Family Law Council, which were aimed at reducing the emphasis on the Anglo‑European nuclear family model in cases involving indigenous children.
The legislative response to these criticisms of the law and its application to indigenous families was the introduction of s 61F. We will not repeat the provision again; however, the Explanatory Memorandum bears repetition in light of the criticisms to which we have referred:
131. … 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.
In our view, this key provision was overlooked in the proceedings below. The report writer’s recommendations, whilst paying regard to the potential benefit to O of immersion in the father’s Torres Strait Islander culture, not only disregarded the Aboriginal culture of the maternal family but also proceeded on assumptions about the parent-child relationship which had not been demonstrated as having any application to indigenous children.
We accept that the Federal Magistrate was not assisted at trial by any cross-examination specifically directed to the cultural issues we have discussed. However, we have concluded that his Honour should have been aware of, and taken into account, the fact that the 2006 amendments were aimed at ensuring that cases involving indigenous children are no longer determined on the basis of automatic acceptance of “modern Anglo‑European notions of social and family organisation”. In our view, it should have been apparent that the report writer’s recommendations were firmly based on such notions, the writer having failed to take into account in any way the fact that O is an Aboriginal child.
We do not consider that the recommendations of the report writer can be “saved” by reference to the following passage of transcript in which his Honour might be seen as endeavouring to “shore up” the opinion of the report writer (Transcript, page 132):
FEDERAL MAGISTRATE: Put it another way… in reaching your conclusions did you consider the importance of [O's] Aboriginal heritage?---Yes.
And in reaching your conclusions, did you consider the importance of [O's] Torres Strait heritage?---Yes.
If the report writer did indeed consider the importance of O’s Aboriginal heritage in making her recommendations then she should have said so in her report. We consider his Honour erred in being prepared to accept that the report writer had taken O’s Aboriginal heritage into account when she never mentioned it and never discussed it with O’s sister.
We also consider his Honour erred in seemingly equating the belated visit to O’s home (and the discussion with Auntie S during that visit) as amounting to some consideration of O’s Aboriginal heritage in circumstances where there is no indication of any discussion of cultural issues, other than the terse exchange of views between the report writer and the father of O’s sister.
When she was asked in cross-examination what had been the purpose of having spoken to Auntie S during the home visit, the report writer said, “I was asked to…as a means of demonstrating that I had given – whether I had spoken to people involved in [the sister’s] culture” (Transcript, page 127). If there was any discussion of cultural issues with Auntie S, who was described by the report writer as an “elder”, that part of the discussion did not find its way into the second report.
Lack of attention to father’s absence from O’s life
Although the Federal Magistrate did not make any findings about the precise extent of the involvement of O’s father in his life, we do not consider ultimately there was any controversy about the extent of their face-to-face contact.
On our review of the affidavits and the transcript we consider the following constituted the sum total of the father’s time with O up to the date of trial:
· O’s father lived with O until he was 7 months old;
· there were then four brief visits between 2002 and 2007 (two of which involved one overnight stay in the home of O’s mother);
· there was then the extended visit in the days following the death of O’s mother;
· there were no further visits until two one day visits at the end of June 2008. These were followed by an overnight visit of three or four days’ duration in early July 2008 and another two day visit at the beginning of August 2008.
· The final visit was the 12 day holiday in the Torres Strait in January 2009, just before the trial.
The weight to be given to the fact that O’s father had been largely absent from O’s life was clearly of considerable importance. The assertion made on behalf of O’s sister is that this important issue was “glossed over” by the report writer and hence his Honour erred in accepting her recommendation.
As we have determined there should be a re-trial, we consider it inappropriate to express any views on the weight we consider should have been given to this factor. That will be a matter for the judicial officer who has the conduct of the re-trial. No doubt attention will also be paid to the impact on O not only of separation from his eldest sister and her husband and their children, but also the separation he will experience from his half-siblings and perhaps also from Mr G (the father of his younger half-sister C) who O’s sister said had “treated [O] like his own son” and who “[O] grew up acknowledging … as “Dad” (sister’s trial affidavit paragraph 11, AB 79).
Conclusion
In the course of our discussion of the complex issues raised in this appeal we have found there is substance in some of the complaints agitated on behalf of O’s sister. Many of these can be seen as arising from what we regard as deficiencies in the two expert reports upon which his Honour relied.
We accept, as his Honour said, that whilst important, the issues associated with O’s dual indigenous heritage should not have totally subsumed the proceedings. Nevertheless, we consider that insufficient regard was paid to the heritage of that part of O’s family with whom he had lived his entire life.
We recognise that his Honour said that he would have arrived at the same outcome even if he had put the two reports “to one side”. However, the difficulty we have in placing any significance on that observation is that the balance of his Honour’s reasons does not provide adequate reasons to explain why it would be in O’s best interests for him to live with his father who, for whatever reason, had been a largely absent figure in his life in preference to his sister, who had been a constant in his life and to whom he was securely attached.
We should also note that his Honour’s statement about arriving at the same decision without regard to the reports was accompanied by a reference to the objects of the legislation in s 60B. In our view that statement can only be read as an allusion to the emphasis the objects place on the benefits to children of having a meaningful relationship with their parents. As we have sought to explain, those objects, like every other provision of Part VII of the Act, must in cases involving indigenous children be read subject to the provisions of s 61F. Regrettably, we have determined that s 61F was largely overlooked.
Given the merit we have found in the complaints advanced on behalf of O’s sister, we propose to allow the appeal. We will order a re-trial in light of the agreement that this was the only practical option available to us. Any issue concerning contact arrangements pending the re-trial will need to be determined by application to the Federal Magistrates Court, if necessary.
Costs
We took costs submissions at the conclusion of the oral argument.
All counsel sought a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) if the appeal succeeded on a point of law. The appeal has succeeded on points of law. As we consider there should be no order for costs against any of the parties, we have determined that costs certificates should be provided to both parties and the Independent Children’s Lawyer for the appeal and for the rehearing.
I certify that the preceding three hundred and forty seven (347) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 10 February 2010
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