DRIVER & DOLMAN

[2017] FamCA 91

FAMILY COURT OF AUSTRALIA

DRIVER & DOLMAN [2017] FamCA 91

FAMILY LAW – CHILDREN – With whom a child lives – Where maternal grandmother have sole parental responsibility – where children live with maternal grandmother – where maternal grandmother seeks no time spent with the father or paternal grandmother – Where paternal grandmother discontinued her Response – where the trial proceeded as an undefended hearing – where the father is convicted of murder of the mother – where presumption of section 61DA of the Family Law Act 1975 (Cth) does not apply given the father’s murder of the mother – where re-introducing the children to the paternal grandmother would be emotionally distressing

FAMILY LAW – CHILDREN – Aboriginal culture – Indigenous child-rearing practices – where the children’s aboriginality is derived from their paternal grandfather – where children’s opportunity to experience their aboriginal culture is minimised as a consequence of the mother’s murder, father’s incarceration and estrangement from paternal family

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 61F, 65DAA(1), 65DAC

Donnell & Dovey [2010] FamCAFC 15
Mauldera & Orbel (2014) FLC 93-602
Re CP (1997) 21 FamLR 486
S v Australian Crime Commission (2005) 144 FCR 431
Wacando v The Commonwealth (1981) 148 CLR 1

APPLICANT: Ms Maddison

RESPONDENT: Ms Dolman

INDEPENDENT CHILDREN’S LAWYER: Susan Gray

FILE NUMBER: CSC 657 of 2012

DATE DELIVERED: 24 February 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 2 February 2017

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Susan Gray

Orders

1. All previous parenting Orders in relation to the children B born … 2003 and C born … 2006 (“the children”) be forthwith discharged.

2. The children live with the maternal grandmother Ms Maddison (“the maternal grandmother”).

3. The maternal grandmother have sole parental responsibility for the children including but not limited to:-

   a.Any medical or health matter concerning the said children;

   b.Matters relating to the education of the said children, including but not limited to, the choice of school and curriculum;

   c.Disciplinary matters;

   d.Matters concerning the social development and sporting activities of the said children;

   e.The names of the said children;

   f.Matters concerning the religion, faith or culture and custom of the children;

   g.The place of residence of the children including any change thereof;

   h.Any matter regarding the said children in respect of which a parent should be informed or consulted with having regards to the provision of part VII of the Family Law Act 1975.

4. The maternal grandmother is permitted to make application for passports for the children issue without the requirement of having the signature of their father Mr Dolman.

5. The Independent Children’s Lawyer be discharged with the thanks of the court.

6. Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Driver & Dolman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC657/2012

Ms Maddison

Applicant

And

Ms Dolman

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. In 2012, Mr Dolman (“the father”) brutally murdered Ms Driver (“the mother”).  In consequence, not only were those parties’ two children, who are the subject of these proceedings, being B (born in 2003 and hence presently 13 years of age), and C (born in 2006 and hence presently 10 years of age) (“the children”) left without their mother, but in practical terms they also lost their father, who was shortly thereafter arrested and ultimately jailed consequent upon conviction for the murder.

2. Since the mother’s murder, the children have resided with members of her family, initially with their maternal uncle, Mr D Driver, but thereafter with Ms Maddison (“the maternal grandmother”).  Reflective of that change, although initially these proceedings were commenced by the maternal uncle on 19 October 2012, as the matter progressed, and the care of the children changed to the maternal grandmother, he ceased to have any further involvement in the proceedings, and the moving party became the maternal grandmother, with the respondents being the father and Ms Dolman (“the paternal grandmother”). 

3. By her Amended Initiating Application filed 22 August 2014, the maternal grandmother seeks orders that she have sole parental responsibility for the children, who would live with her and spend no time either with their father or with the paternal grandmother.  By her Response of 28 November 2012, the paternal grandmother sought orders that the children live with her, and that she, the maternal uncle and his wife have equal shared parental responsibility for them.  She further sought orders that the children spend agreed time with the maternal uncle and his wife, but spend no time with the father unless the three persons with parental responsibility all agreed.  Her orders did not provide for the children to spend any time with the maternal grandmother, but did not prohibit it. 

4. That remained her official position as reflected in the filed material until unexpectedly, after the matter had been listed for trial, on 23 January 2017 the paternal grandmother discontinued her Response, and thereafter played no role in the trial, which proceeded as an undefended hearing. 

5. On 2 February 2017 I made final orders substantially as sought by the maternal grandmother.  These are my reasons for those orders.

THE FACTS

The maternal grandmother

1. The maternal grandmother was born in Country E in 1962, and hence is presently 55 years of age.  She came to Australia at the age of 18, and married a 37 year old man.  To this marriage she had two children, being the maternal uncle, and then the mother.  After that relationship concluded, she married again, and to that relationship had a further three children.

2. At the time of the murder the maternal grandmother was living in F Town with her second husband and the children of that relationship.

The paternal grandmother

1. The paternal grandmother was born in 1961, and hence is presently 56 years of age.  She was brought up in F Town, and told Dr G, a psychiatrist who examined her for the purposes of these proceedings, that her father “was a drinker, an alcoholic, and violent towards his wife but not toward her.”

2. She was educated to year 10, and left home at the age of 18.  She gave birth to the father when she was 21 years of age.  The paternal grandfather was of South Sea Islander and Aboriginal descent.  They later married.

3. To that marriage the paternal grandmother had another two children, both daughters, being Ms H, who is presently 20 years of age, and Ms I, presently 18 years of age.

4. The paternal grandmother later separated from the paternal grandfather; as at October 2014, it appears that he was resident in J Town in the Northern Territory.  The paternal grandmother remained in F Town.

5. The paternal grandmother is variously described as being presently employed in service industries.

The father

1. Although a named respondent to these proceedings, the father has not involved himself in them other than submitting to an interview with the Family Report writer in 2014.  I therefore know little of him, other than the fact that he was born in 1982 (and hence is presently 34 years old) and after he completed his schooling, joined the public service.  It seems likely that it was whilst he was so employed that he met the mother and formed a relationship with her.

The mother

1. Understandably the material does not provide much detail about the mother, and it is unnecessary to discuss her or her background.

The parents’ relationship and separation

1. Again the material does not disclose much detail in relation to the parents’ relationship.  However it appears as though during the course of the relationship, the father continued in employment with the public service, and was transferred overseas.  It is unclear whether his first transfer, to Country K, was during the course of the relationship or not, but it appears unlikely.  However during the course of the relationship he was again deployed overseas, this time to Country L.  As a result of his work there, he developed some mental health issues and was diagnosed with a stress related disorder, and discharged from his employment on medical grounds.

2. It is likely that the father’s mental health issues, and perhaps his unhappiness at some of the mother’s behaviours whilst he was overseas, led to the breakup of the relationship upon his return.  After the parents separated, there was disagreement as to the parenting arrangements in relation to the children, and litigation was commenced in the Federal Circuit Court.  Ultimately that concluded on the basis that the children lived with the mother and spent time with the father, but it appears as though there was continuing hostility between them nonetheless.

The murder and subsequently

1. The father murdered the mother whilst they were both in the paternal grandmother’s home.  At the time, it seems as though the children were with other family members, although they later attended the paternal grandmother’s home not long after the murder.  Their recollections of events of that afternoon assumed some significance in this case, because based on what the children have said occurred, the maternal grandmother is firmly convinced that the paternal grandmother was complicit in at least the aftermath of the murder.  The children’s statements to several people about the events indeed appear to be consistent with that.  For instance in 2014 one of the children said to Ms M:

   I think [the paternal grandmother] is involved.  She knew where to go and at what time.  When we went home she was ripping up the carpet.  [The paternal grandmother] said the dog peed on it.  The dog always peed outside.  [The father’s then girlfriend] got a call from [the father]; she did not say anything…

2. Later in that interview one of the children further said:

   [Ms I] [a paternal aunt], was helping to rip up the carpet.  I don’t know why she was doing that.  To help her brother or was she told by her mother?  Ms [H] [the other paternal aunt] said to us not to go outside.  [The paternal grandmother] said not to go outside.

3. The significance of that latter statement is that it appears likely that at the time when the children were being told not to go outside, there was some incriminating evidence there, perhaps the mother’s car or some other indication of the murder.

4. As it transpired, in order to attempt to get rid of the body, the father drove the mother’s car together with her deceased body to an isolated place and there set fire to the car.

5. After what appears to have been a brief police investigation, the father was arrested and it appears was never granted bail.  He was found guilty of murder and sentenced to life imprisonment.

6. Later on the day of the murder, the maternal grandmother retrieved the children from the paternal grandmother’s care, and they went to live with their uncle and his family in N Town.  That was the situation when these proceedings commenced, however during the course of them, initially B and then C, left the care of the maternal uncle, and went to live with the maternal grandmother and her partner and children.  Unfortunately, the circumstances which saw that change of care appear to either have been acrimonious, or to have led to acrimony, between the maternal grandmother and the maternal uncle, in consequence of which they no longer communicate, and there is no interaction between the members of the two households. 

7. It is sad to relate therefore that not only have these two boys lost both of their parents, and lost contact with the paternal family generally, but they have also lost contact with a significant proportion of the maternal family, including their eight or nine cousins who are the children of the maternal uncle.

Current situation

1. As at the time of trial, the maternal grandmother and the children were living in the O Town district, where the children attend local schools.  B is doing well at school, is reported to have no behavioural problems and socialises well.  On the other hand C, whilst said to be very intelligent has, at least in the past, evidenced considerable behaviour problems at school.  Indeed for a period he was suspended from school, or at least placed on restricted hours, although I was told by the maternal grandmother in her oral evidence that he is now again attending school full time.

THE ISSUES

1. At the pre-trial conference which I conducted whilst the paternal grandmother was still engaged in the proceedings, the following were identified as the issues in these proceedings, in that their determination was likely to substantially impact upon the exercise of my discretion in relation to parenting orders:

   1.What is the nature of the relationship between maternal and paternal grandparents and the children.

   2.What risk, if any, does the paternal family pose to the children.

   3.What risk, if any, does the maternal family pose to the children.

   4.Would the children benefit from a meaningful relationship with the paternal grandmother, and if so how might it best be facilitated.

   5.What is the likely effect on the children being ordered to spend time with the paternal grandmother/family.

   6.What are the practical difficulties and expense of the children spending time with the paternal and maternal grandparents.

2. After I have discussed the relevant statutory provisions and legal principles, but in advance of a traverse of any residual s 60CC considerations, I will discuss those issues, and then turn to the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (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).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s.60CC.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Aboriginality

1. The Family Law Act contains a number of provisions which deals specifically with aboriginal or Torres Strait Islander children.  Relevant to this case, I identify those as being specifically s 60B(2)(e), s 60B(3), s 60CC(3)(h), s 60CC(6) and s 61F.  It is unnecessary to set out the full text of all of those provisions in this case, however it is convenient to refer specifically to the latter two provisions, which are as follows:

   Section 60CC(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.

   61F Application to Aboriginal or Torres Strait Islander children

   In:

   (a) applying this Part to the circumstances of an Aboriginal or Torres Strait Islander child; or

   (b) identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;

   the court must have regard to any kinship obligations, and child‑rearing practices, of the child’s Aboriginal or Torres Strait Islander culture.

1. As to the latter provision, in Donnell & Dovey [2010] FamCAFC 15, the Full Court said at [183]-[184] as follows:

   183. It will be seen that s 61F, in the form ultimately enacted, applies to all cases involving an Aboriginal or Torres Strait Islander child.  In proceedings under Part VII relating to such a child, the court must have regard to the child-rearing practices of the relevant Aboriginal or Torres Strait Islander culture.  Failure to take account of that provision would, in our view, ordinarily amount to appealable error.   (For an illustration of a case in which s 61F was properly treated as an “integral” part of the decision making process see the judgment of Young J in Davis v Davis (2008) 38 Fam LR 671.)

   184. Section 61F does not say that the outcome will be determined by application of the relevant kinship obligations and child-rearing practices, but the court must have regard to them.  In our view, this can only be seen to be done if findings are made regarding those obligations/practices and adequate reasons are given to explain why a decision has been made that either follows or departs from them.  We accept this can be done without the court making express reference to s 61F, but we consider it would be desirable that the section is at least mentioned, if not discussed. 

2. The Court continued at [187]-[188] as follows:

   187. A rigid interpretation of s 61F may have suggested that the adjournment option was to be preferred.  On the face of the section, it is mandatory for the court to have regard to the relevant indigenous child-rearing practice in every case involving a child of Aboriginal or Torres Strait Islander background.  If there is no evidence, or there is a lacuna in the evidence, the court cannot fully comply with the obligation imposed by the statute. 

   188. However, such a strict interpretation of s 61F would be unrealistic.  In many cases there will be no evidence at all of the relevant custom or practice.  This may be because there is no acceptable evidence available to establish the custom or practice.  Alternatively, there may be no evidence because no party asserts it to be of any relevance.  For example, the child may have been brought up in a family where all meaningful attachment to indigenous culture has been lost. 

3. In this context it is also pertinent to refer to an aspect of the decision of the earlier Full Court in Re CP (1997) 21 FamLR 486 at 502. Whilst I accept that the following passage is not a statement of principle or law, but rather a recital of part of the relevant evidence in that case, it may be taken as fairly representing an accepted position of general application in many of the cases in this Court involving aboriginal children. There the Court said as follows:

   We have already set out his Honour’s precis of the evidence given by Dr M, which he correctly noted was unchallenged.  Yet we do not consider that what his Honour recorded of her evidence, which his Honour said he accepted, captured the views she expressed, notwithstanding the limited, or restricted, ambit of her brief.  In particular, we do not consider that his Honour had sufficient regard to the following passages of Dr. M’s report:

   ... Children are born into a world of kin which is so vast they will probably be meeting new kin when they are old men and women. For an Aboriginal child, this network will become one of the two key ways in which their identity as a person is constructed. The other is through relations to country. Both are able to link the child to its ancestors and thus, by implication, to its descendants.

   (see Appeal Book page 244)

   and—

   Disadvantages of not bringing up an Aboriginal child within his or her own community of kin and within at least frequent visiting distance of country with which he or she is identified might include:

   • the loss of relations with a vast range of kin who will perform a wide variety of roles associated with social relations, emotional and physical support, educative knowledge, economic interactions and spiritual training. This is as true of Aboriginal people from communities in `settled Australia' whose continuities of tradition have in certain cases been greatly disturbed by their colonial histories as well as those in more remote areas;

   • loss of knowledge which stems from the social interactions mentioned above;

   • ambiguities in or loss of identity with one's own kin and country, features I understand as essential to identity from an indigenous point of view, and which are much more specific to certain people and place than is the broader categorisation of “Aboriginal” used by the wider Australian society and which does not necessarily recognise the specificity of indigenous identity.

   We consider that these aspects of Dr M's evidence were of significance in highlighting the disadvantage for an Aboriginal child in not being brought up within their own community and further demonstrate the inter-connectedness between identity and belonging within the specific group to which that child was born, compared to a child's wider identity as “Aboriginal”. To our mind, the whole thrust of his Honour's judgment demonstrates that he gave the specificity of this child's cultural heritage, and the impact on his future welfare if he were not brought up within it, insufficient weight and this is amplified by his failure to make any reference to the above portions of Dr M's unchallenged evidence in his summary of it.

NATURE OF RELATIONSHIP BETWEEN CHILDREN AND BOTH GRANDMOTHERS

1. Ms M, the Family Report writer, recorded that the children described the maternal grandmother as “really nice.”  They elaborated upon what they perceived to be the benefits of living with her and her husband, and there is no reason to think that their primary source of comfort and nurture at the moment is not from the maternal grandmother.

2. On the other hand when asked about the paternal grandmother, one of the children said “I hate her.  I never want to see her again.  She was part of the murder of mum.  She was helping to clean the carpet.  I saw that...”  Later, one of the children indicated that they did not like the paternal grandmother’s youngest two daughters, because the children believe that they too assisted in cleaning the house after the murder.  They also referred to the paternal grandmother having said some unpleasant words which they saw when they were aired on television news coverage of the murder.

3. Whether validly based or not, it seems clear that the children have a strong belief that the paternal grandmother was somehow involved in their mother’s murder, and this has devastated their no doubt previously good relationship with her.

RISK POSED BY PATERNAL FAMILY

1. It is not suggested that the paternal family poses any risk of physical harm to the children if they were to engage with them, or that there is any history of neglect.  The only risk which the material identifies is that the children have a strong, to the point of vehement, belief about the paternal family’s involvement in the death of their mother, which would doubtless distress them if they were forced to again spend time or communicate with them.  It was that which informed Ms M’s recommendations that, if the children were indeed to re-engage with the paternal grandmother, there would need to be supportive counselling.

RISK POSED BY MATERNAL FAMILY

1. As with the paternal family, it was not suggested that there was any physical risk of harm posed by the maternal family members.  Rather the material only suggested that the maternal grandmother has isolated the children from the entirety of the paternal family, and indeed has isolated them from their maternal uncle and his family as well. 

2. Dr G, a psychiatrist who examined the maternal grandmother for the purpose of these proceedings, whilst accepting the maternal grandmother’s belief that the paternal family had a role in the murder of her daughter was the basis for her believing that they should not have anything to do with the children, nonetheless concluded that there was not “an adequate basis for her refusal to allow the paternal grandmother to have a reasonable degree of access.”  However he accepted that the maternal grandmother would have considerable resistance to the children re-establishing any such contact, and that therefore she would likely require counselling or support.

3. This was likewise the view of Ms M, however she went on to say that nonetheless she had “strong reservations” about the maternal grandmother’s capacity to ever support the children through a re-introduction to their paternal family.  I accept that evidence.

BENEFIT OF MEANINGFUL RELATIONSHIP WITH PATERNAL GRANDMOTHER

1. Leaving aside the concerns that she was in some way implicated in the mother’s murder, there is nothing about the paternal grandmother that would suggest that the children would not benefit from a meaningful relationship with her.  True it is that it appears as though the paternal grandmother has a somewhat dim view of the mother, or more precisely her lifestyle when she was alive, but even if that be correct, it is not in the nature of an unacceptable risk of harm to the children.

2. Dr G, who also examined the paternal grandmother for the purposes of these proceedings, thought that she had much to offer the children, particularly given that she had been heavily engaged in their care prior to the murder, and concluded that she “has a fair amount to offer the two children.”

3. Ms M adopted a not dissimilar stance, and she said that “from a philosophical perspective, it would be in [the children’s] best interest to spend time with [the paternal grandmother].”  However, her concern was that from a practical perspective, the children’s entrenched views of the paternal family, coupled with the maternal grandmother’s inability to support the children in any re-introduction of the paternal family, raised significant barriers to the prospect of that succeeding, and worse, could be positively detrimental to the children.  I accept that evidence, and share those concerns.

4. Therefore whilst in theory the children would benefit from a meaningful relationship with the paternal grandmother, in reality the situation is far more vexed. 

LIKELY EFFECT ON CHILDREN OF SPENDING TIME WITH PATERNAL GRANDMOTHER

1. This is the nub of the case.  As I have indicated, Ms M was of the opinion that from “a philosophical perspective” the children should spend time with the paternal grandmother.  However, she concluded that the preconditions of them re-establishing any such connection would be, firstly, for the children to embark upon extensive counselling to prepare them for the reintroduction (given their firmly entrenched views as to the paternal grandmother’s complicity), and secondly, that at the time of receiving that counselling, it would be necessary for the children to be living in a supportive environment which would facilitate their re-thinking about the paternal grandmother and other paternal family members.  However as I have said, she expressed “strong reservations” about the maternal grandmother’s capacity to so support the children in that way, and more, said that the maternal grandmother would not support the boys in their counselling with a view to being re-introduced to the paternal family.  She then concluded:

   From the writer’s perspective, unless supportive counselling was to be available to [the children] it would be detrimental to [them] if the court was to order that they spend time with [the paternal grandmother] or live with her.

2. That evidence was not challenged and I accept it.  Although it is difficult to be specific as to precisely how matters may play out, I am satisfied that being re-introduced to the paternal grandmother would be, at the very least, emotionally distressing for the children and, given the terrible trauma which they have survived and the problematic behaviours which C has already demonstrated, potentially of considerable detriment if not adequately supported.

PRACTICAL DIFFICULTIES AND EXPENSE OF CHILDREN SPENDING TIME WITH PATERNAL FAMILY

1. The maternal family lives in the O Town region; the paternal family now resides in P Town.  There is therefore approximately a three hour drive between the two households.  That would inevitably create practical difficulties to the children spending frequent periods of time with the paternal grandmother and her family, although that said, it was not contended that such travel was prohibitive.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that I have already addressed both primary considerations (accepting that there is no prospect of the children having a meaningful relationship with their father) and a number of the additional considerations in discussing the issues. 

2. The only other significant matter that I need to traverse is the aboriginal culture of both of the children.  As to this, their aboriginality is derived from their paternal grandfather who, as I have indicated, is no longer in a relationship with the paternal grandmother, and lives in J Town.  It is not suggested that as between the parties to this litigation, either of the grandmothers are in a position to assist the children to experience their aboriginal culture.  Whilst it may be that the paternal grandmother is slightly better placed to access paternal family members who could assist the children in that regard, that was not a major feature of the way in which the case was prepared.  As regrettable as it is that the orders which I have made will likely see the children’s opportunity to experience their aboriginal culture minimised, that is an unfortunate consequence of their mother’s murder, their father’s incarceration, and their estrangement from the paternal family generally.

PARENTAL RESPONSIBILITY

1. Obviously, given his murder of the mother, the benefit of the s 61DA presumption does not apply to the father. It is plain that the best interests of the children will be served by the party with whom they primarily reside having sole parental responsibility for them. This is not a case where there is any prospect of the children’s grandmothers sharing parental responsibility, given the maternal grandmother’s firm and unshakable belief that the paternal grandmother was somehow complicit in the murder of her daughter.

WITH WHOM SHOULD THE CHILDREN LIVE

1. The children have not spent time or communicated with the paternal grandmother since their mother’s murder.  As I have indicated, initially they went to reside with a maternal uncle and his large family, but that did not work out and thereafter they have resided with the maternal grandmother.  Whilst C has demonstrated problematic behaviours, they appear to have, according to the maternal grandmother’s oral evidence, substantially improved to the point where he is now attending school full time.  Whilst not the subject of any direct evidence before me, I am nonetheless satisfied that if the children were to have their living arrangements again changed, it is likely to be significantly disruptive for them.  Moreover, if they were to live with the paternal grandmother, there would need to be a carefully managed reintroduction of her into their lives, and there would need to be some shift in their belief as to her complicity in their mother’s murder.  The chances of that succeeding are slight.

2. In any event, the paternal grandmother has ceased involvement in the proceedings, and does not now seek an order that the children live (or even spend time) with her.

3. I am satisfied that the best interests of these children lie in them continuing to reside with the maternal grandmother.  Particularly:

   ·They have a good relationship with her and her husband;

   ·The impact of them now moving to live with anyone else would likely be greatly disruptive to them, and if it were the paternal grandmother, likely to be positively detrimental.

TIME AND COMMUNICATION WITH THE PATERNAL GRANDMOTHER

1. As I have indicated, Ms M’s view is that the children have entrenched opinions as to the involvement of the paternal grandmother and her family in their mother’s death, based upon their own observations.  It would therefore be highly distressing for them to again encounter those people, unless they, firstly, had extensive counselling to assist them prepare for that, and secondly, were then in a living environment which would be supportive of that re-introduction.  The reality is that the maternal grandmother will never be able to support the children having a relationship with a person who she believes was complicit in the murder of her daughter.  The pre-conditions for the counselling therefore do not exist, and are unlikely to ever exist.

2. As unfortunate as it is, the reality is that it is not in these children’s best interests for them to spend time or communicate with the paternal grandmother, at least during their childhood.

CONCLUSION

1. For these reasons I pronounced the orders which I did at the conclusion of the hearing before me.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 24 February 2017.

Associate:

Date: 24 February 2017