Dundas and Duffy and Ors
[2017] FCCA 1928
•16 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUNDAS & DUFFY & ORS | [2017] FCCA 1928 |
| Catchwords: FAMILY LAW – Children – Parenting arrangements – competing applications by maternal and paternal grandmothers for “ live with” orders – child 6 years old – maternal family identified as Aboriginal – mother did not participate in proceedings – father deceased – application of sections 60B(2)(e), 60CC(3)(h), 60CC(6) and 61F of the Family Law Act 1975 – both grandmothers seeking sole parental responsibility – health and safety concerns and risk to the child being exposed to criminal activity in the maternal family’s home – orders for child to live with the paternal grandmother and spend time with maternal grandmother. |
| Legislation: Family Law Act 1975, ss.60B (1), 60B(2), 60B(2)(e), 60B(e), 60CA, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3)(h), 60CC(3)(m), 60CC(6), 61C(1), 61C(3)(1), 61D(1), 61F, 65D(1), 65DAA Evidence Act 1995, s.144 |
| Cases cited: Davis & Davis (2007) 38 Fam LR 671; [2007] FamCA 1149 Donnell & Dovey (2010) FLC 93-428; [2010] FamCAFC 15 Articles referred to: |
| Applicant: | MS DUNDAS |
| First Respondent: | MS DUFFY |
| Second Respondent: | MS MORROW |
| Third Respondent: | MS BINKS |
| File Number: | AYC 60 of 2015 |
| Judgment of: | Judge Tonkin |
| Hearing dates: | 24 & 25 May 2017 |
| Date of Last Submission: | 25 May 2017 |
| Delivered at: | Canberra |
| Delivered on: | 16 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stagg |
| Solicitors for the Applicant: | Friedlieb Byrne |
| Counsel for the Third Respondent: | Ms Irving |
| Solicitors for the Third Respondent: | Elringtons |
| Counsel for the Independent Children's Lawyer: | Mr Haddock |
| Solicitors for the Independent Children's Lawyer: No appearance by or on behalf of the First Respondent No appearance by or on behalf of the Second Respondent | Legal Aid ACT |
ORDERS
All previous Orders are hereby discharged.
Subject to Orders 3 to 5 hereof, the paternal grandmother shall have sole parental responsibility for the child X born (omitted) 2011 (“the child”).
Notwithstanding Order 2 and subject to Order 5 hereof, the paternal grandmother shall consult the maternal grandmother with respect to the following matters:
(a)Any proposed change in the child’s schooling including but not limited to whether the child should change schools, repeat a grade and/or where and when the child should commence High School; and
(b)Any medical and dental issues including but not limited to whether the child needs any significant medical and/or surgical and/or dental procedure or treatment (for example whether the child requires surgery, long term treatment for a serious medical condition, requires braces or similar); and
(c)Any other matter which may arise in relation to a major decision affecting the child.
The paternal and maternal grandmothers shall use their best endeavours to discuss the matters referred to in Order 3 and in the event that they are unable to reach an agreement, the paternal grandmother’s decision in relation to an issue shall be determinative.
The maternal grandmother shall have sole responsibility for ensuring that the child’s Aboriginal identity is maintained in the manner the maternal grandmother considers appropriate including ensuring the child engages in any activities and practices which involve the Aboriginal culture and Aboriginal community. To give effect to this order the maternal grandmother shall consult the paternal grandmother regarding these issues however the maternal grandmother’s decisions about the child’s participation in her Aboriginal culture and community shall be determinative.
The child shall live with the paternal grandmother.
Unless otherwise agreed, the child shall spend time with the maternal grandmother as follows:
(a)Commencing 17 August 2017 during the school terms each alternate week from Thursday after school until before school on Monday; and
(b)During the New South Wales gazetted Term 1, Term 2 and Term 3 school holidays from 5:00pm on the Saturday falling on the second weekend of the holidays to 5:00pm the following Saturday; and
(c)During the New South Wales gazetted Christmas school holiday periods for half the school holidays as agreed between the parties but failing agreement:-
(i)During years ending in an even number commencing 2018:
(A)From 5:00pm on the first Saturday falling in the school holiday period to 5:00pm the following Saturday; and
(B)From 5:00pm on the third Saturday falling in the school holiday period to 5:00pm the following Saturday; and
(C)From 5:00pm on the fifth Saturday falling in the school holiday period to 5:00pm the following Saturday; and
(D)Such other time as may be agreed between the parties.
(ii)During years ending in an even number commencing 2017:
(A)From 5:00pm on the second Saturday falling in the school holiday period to 5:00pm the following Saturday; and
(B)From 5.00pm on the fourth Saturday falling in the school holiday period to 5:00pm the following Saturday; and
(C)From 5:00pm on the sixth Saturday falling in the school holiday period to 5:00pm the following Saturday; and
(D)Such other time as may be agreed between the parties.
Changeover for the purposes of these Orders shall occur at the child’s school or at such other location as agreed between the parties but failing agreement at the entrance to Coles at (omitted).
Notwithstanding these orders:
(a)The child shall spend time with the maternal grandmother in even numbered years from 2:00pm Christmas Eve until 2:00pm Christmas Day and with her paternal grandmother from 2:00pm Christmas Day until 2:00pm Boxing Day; and
(b)The child shall spend time with the paternal grandmother in odd numbered years from 2:00pm Christmas Eve until 2:00pm Christmas Day and with her maternal grandmother from 2:00pm Christmas Day until 2:00pm Boxing Day.
The child shall spend time with her mother Ms Duffy supervised by the maternal grandmother and she shall spend time with her aunt Ms Morrow supervised by the maternal grandmother.
The child shall communicate with the maternal grandmother by telephone during school term every Tuesday from 6:00pm to 6:30pm with the maternal grandmother to initiate the call and the paternal grandmother to facilitate the call.
Should the child request to communicate with the maternal grandmother or her partner, her maternal aunt or her mother at any other time, the paternal grandmother shall facilitate that communication.
Each party shall keep the other informed of their current residential address, mobile telephone numbers and any available email addresses and advise the other party of any change thereto within 24 hours of such change occurring.
The paternal grandmother and maternal grandmother shall advise each other within 48 hours of any medical or dental appointments which the child is due to attend and advise each other of the name and address of any medical or other practitioner who examines or provides treatment or diagnosis in regards to the child and authorise that practitioner to give information in relation to the child to each of them.
In the event that the child suffers a childhood illness or in the event of an emergency the party with whom the child is with shall contact the other party forthwith to inform them.
Each of the parties, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking, or otherwise denigrating any other party.
The paternal grandmother and the maternal grandmother each be permitted to liaise directly with the child's school and to receive notices, information, newsletters, reports, photographs and any other necessary information about the child's progress.
The paternal grandmother and other members of the paternal family and the maternal grandmother and other members of the maternal family be at liberty to attend at the child's school for the purposes of any function or activity normally attended by parents.
The first, second and third respondent be and are hereby restrained from using any illicit substance whilst the child is in their care or permitting any other person in the household to use an illicit substance while the child is in their care.
NOTATION:
A.The parties agree that X will continue to attend (omitted) Public School with her siblings A and B.
B.The parties agree that X will attend upon a G.P. at the Aboriginal Medical Centre.
IT IS NOTED that publication of this judgment under the pseudonym Dundas & Duffy & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
AYC 60 of 2015
| MS DUNDAS |
Applicant
And
| MS DUFFY |
First Respondent
| MS MORROW |
Second Respondent
| MS BINKS |
Third Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to the future parenting arrangements for the child X born on (omitted) 2011. The child’s mother Ms Duffy (the First Respondent) did not participate in the proceedings. Sadly the child’s father is deceased. The matter involved competing applications for residence by the maternal grandmother Ms Binks (the Third Respondent) and the paternal grandmother Ms Dundas (the Applicant). The maternal family identified as Aboriginal. A number of issues were raised by the paternal grandmother regarding risks to the child’s health, safety and welfare whilst in the care of the maternal family.
History
The history of this matter is somewhat complicated and requires repeating. The paternal grandmother is 60 and the maternal grandmother is 45 years old. The child’s mother is Ms Duffy who is 27. She is the daughter of Ms Binks (the maternal grandmother) and step – daughter of Mr A (Ms Binks’s partner). Maternal grandmother and Mr Morrow have two children together Ms Morrow and Mr A junior. Ms Morrow has no children of her own and Mr A has a child E who is 5 years old. Ms Morrow was born on (omitted) 1993 and was 19 years old when she assumed the care of X.
Ms Duffy has five children A born (omitted) 2008 (age 9) and B born (omitted) 2009 (age 7 soon to be 8) who live with the maternal grandmother and her partner. Their father is Mr C. X who is the subject of these proceedings is now 6 years old. She lived with her mother for about the first 6 to 8 months of her life and was then cared for by Ms Morrow, her aunt. Ms Duffy has two other children C born (omitted) 2013 (now 4) and D born (omitted) 2014 (now 3). The father of C and D is Mr T. D and C were removed from their mother’s care by Family Services in 2016. X’s father Mr Dundas passed away before the child was born on (omitted) 2010. He was 24 years old at the time. X’s father and paternal grandparents are not Aboriginal.
When Ms Morrow assumed full time care of X she lived at (omitted) with Ms J ((omitted)) Morrow. Ms J is the mother of Mr A. The maternal grandmother lived at (omitted) with her partner and two grandsons A and B. Though X was primarily cared for by Ms Morrow, she moved between her aunt and her maternal grandmother’s home. She also spent time with the paternal grandparents. When Ms Morrow travelled away from (omitted) X was left in the care of the maternal grandmother. The maternal grandmother and her family moved to (omitted) in (omitted) referred to as “(omitted)” in July 2016.
In March 2011 the paternal grandmother requested that DNA tests be carried out to determine the child’s paternity. Following the positive result from the DNA testing (there were two DNA tests) the Maternal grandmother organised for the paternal grandmother to spend regular time with the child. From that time the paternal grandparents spent weekends with X however there was a dispute as to how frequently this occurred.
In August 2014, according to Paternal grandmother, the child’s mother approached the paternal grandmother and asked her if she would take X into her full time care. Both the mother and paternal grandmother made enquiries about signing consent orders for the child. On 10 October 2014 Ms Morrow took X to Canberra. On 26 October 2014 Ms Morrow was incarcerated. On 27 October 2014 the paternal grandmother took out an ADVO on the maternal grandmother. She collected X from pre–school and kept her in her care. On 28 October 2014 the child’s mother and friend attempted to remove X from the paternal grandmother’s care. Lawyers became involved and on 30 October 2014 the child was subsequently returned to the Maternal grandmother’ care.
On 6 November 2014 Ms Morrow was released from custody. A final ADVO order was made against the maternal grandmother effective until 5 November 2015. After the incident in October 2014 the paternal grandmother alleged that her time on weekends with X was no longer regular and she was not provided with any notice that the child would not be made available to spend time.
The paternal grandmother commenced proceedings on 10 February 2015 and filed a Notice of Risk of Abuse. At the time the proceedings commenced the child was living primarily between two homes with her maternal grandmother and aunt Ms Morrow. She attended (omitted) Pre School on Mondays and Tuesdays from 9:00am to 3:00pm. A and B were living with the maternal grandmother and her partner.
On 19 March 2015 the proceedings were transferred to (omitted). On 24 March 2015 the maternal grandmother filed a Notice of Address for Service. On 13 May 2015 the parties were ordered to attend a child dispute conference. On 8 July 2015 Judge Neville released a section 69ZW report to the parties. On 17 July 2015 Ms Morrow filed a Notice of Address for Service. She filed a response and affidavit on 31 July 2015 seeking the child live with her. The maternal grandmother was joined as a party and briefly represented herself until a Notice of Address for Service was filed by her solicitor on 21 September 2015.
On 14 January 2016 interviews took place in preparation for the Family Report. In February 2016 X commenced school at (omitted) Public School. In July 2016 the maternal grandmother, her partner and A and B relocated to (omitted) in (omitted). X remained living at (omitted) with her aunt Ms Morrow.
On 9 March 2016 Ms C released a Family Report. At that time Ms Morrow was seeking orders for X to remain in her full time care. That arrangement was supported by the maternal grandmother. The paternal grandmother sought an order for the child to live with her and her husband.
The paternal grandparents and paternal aunt were interviewed as were the maternal aunt and grandmother. The Family Consultant recommended that the child live with paternal grandparents and spend time with the maternal aunt and her extended family. The Family Consultant released a further Memorandum dated 18 July 2016 but did not re-interview the parties.
In December 2016 the parties attended a Family Dispute Resolution Conference. The matter did not resolve. On 11 May 2017 lawyers for the Second Respondent filed a Notice of Withdrawal. Thereafter Ms Morrow did not participate in the proceedings. In about April 2017 the child commenced living solely with the maternal grandmother.
At the time the paternal grandmother filed her affidavit on 4 May 2017, she believed that X lived with the maternal aunt and was unaware she had gone to live with the maternal grandmother. It was not until 2 weeks before the final hearing that the maternal grandmother sought orders for the child to live with her full time.
Counsel for the maternal grandmother advised the Court that the first and second respondent “no longer wished to be a party to the proceedings.” Though there were no orders to that effect, the child was living with the maternal grandmother at the time the trial commenced. Both the mother and Ms Morrow were called at the commencement of the hearing and both failed to appear. Neither the mother nor the child’s aunt Ms Morrow participated in the proceedings. The matter then proceeded to trial on 24 May 2017 with the Family Consultant called first to give evidence.
Application for a “new” Family Report
All legal representatives cross examined the Family Consultant. During cross examination the Family Consultant acknowledged that her report was somewhat limited given at the time of interviews there were competing applications from the paternal grandmother and the maternal aunt for X to live with them. Interviews had been conducted in March 2016 and the report had been served on all parties shortly after that date. No application had been made for an updated report and the Family Consultant was unaware until advised by Counsel on the first day of the trial that the child had moved to live with the maternal grandmother and she was applying for X to live with her full time.
The Family Consultant accepted that she had not assessed the maternal grandmother as a candidate for residence. She had not conducted any home visits. She said at the time of her assessment the maternal grandmother fully supported X living with Ms Morrow.
Following cross examination of the report writer, the maternal grandmother’s Counsel made an application for a “new” Family Report to be undertaken by a report writer other than Ms C. She complained that the maternal grandmother had not been the focus of Ms C’s report and Ms Morrow was no longer involved in the proceedings. She submitted that no weight should be placed on the report because of the change in circumstances. She said as a consequence the Court would be “without expert evidence” to assist the Court if a “new” report was not ordered. She submitted that the Family Consultant was biased and had a preference for “traditional white parenting practices” and that she did not consider “fully and fulsomely the cultural considerations.” During cross examination Counsel for the maternal grandmother did not put to the Family Consultant that she was biased nor that she failed to consider “fully cultural considerations.”
The paternal grandmother’s Counsel opposed the application. He noted that the matter had been listed on Friday 19 May 2017 for a compliance check and no issue had been raised by the maternal grandmother’s legal representatives at that time. He argued that in fact all legal representatives indicated on that day that they were ready to proceed to hearing. Further he argued that the maternal grandmother was in a unique position as she was aware that the arrangements for the child had changed though she had provided no notice to any of the parties that the child was now living with her (save for the evidence contained in her affidavit filed on 11 May 2017). Nor was any explanation forthcoming for the reason for the recent change in arrangements for the child. He argued that the maternal grandmother had had ample opportunity to make an application for a new family report well before the commencement of the trial and had chosen not to do so. He noted that the paternal grandmother’s application had been on foot for since February 2015 and the parties had received the Family Consultant’s report shortly after March 2016 (over a year ago).
The Independent Children’s Lawyer indicated that the application by the maternal grandmother was misconceived and was in reality an application for an adjournment. He opposed any adjournment. He submitted as follows:
“there’s no magic in a family report. Your Honour is perfectly able to make a decision without it. It’s an established practice. Second,... there was an opportunity on Friday to relist it for the exact purpose that there had been a change in circumstances. There was discussion between solicitors and correspondence that that was the purpose. That was the time to make what seemed, pretty blatantly, obviously, with respect, the time for the adjournment application that is now being made. That was the entire purpose of a relisting but we were told, ‘No, we’re ready to run. We want it finished. We want it pushed on,’ and we come here today and we’re now nearly halfway through the first day of trial and we’re told something else. The third point is, there was a submission made about a complete lack of expert evidence; that’s the submission that was dealt with in Sheldon & Weir (No. 3) almost precisely at paragraph 205 by the Full Court where it was said that, relying on previous Full Court authority, the Court had to receive anthropological or expert evidence in relation to Aboriginal culture in cases where the subject child is Aboriginal. Now, admittedly, it wasn’t cast in quite those terms, but that was the purpose for the updated report and the Full Court completely and utterly rejected that submission, so, your Honour, that’s the third point. The fourth point was in terms of a family consultant that’s not Ms C. I can only say if that’s my friend’s perception and that’s what her case would be, then that’s what should have been put to Ms C. It wasn’t put to Ms C and I don’t understand why –”
Having heard argument I delivered an ex tempore judgment. No allegation of bias had been put to the Family Consultant by the maternal grandmother’s Counsel during cross examination. If Counsel considered the Family Consultant was “biased” this should have been put to her in cross examination. The maternal grandmother’s legal representatives had been in possession of the Family Report for more than a year. No explanation was provided by the maternal grandmother’s Counsel as to why the issues being raised were not addressed in the preceding 12 months.
In Warner v Warner [2017] FamCA 370 Cronin J when dealing with an application for an adjournment in property proceedings said at [33] to [34]:
“[33] In contemplating whether to adjourn a case which is at the point of trial…the Court has to contemplate three different positions. They are those of the respective parties but thirdly that of the Court.
[34] In Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 French CJ (reflecting the attitude of the plurality) said of the argument that justice should be the primary focus:
‘[30]……..Also to be considered is the potential loss of public confidence in the legal system which arises where a Court is seen to accede to applications made without adequate explanation or justification, whether they be for an adjournment for amendments giving rise to adjournment or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.’”
There had been ample opportunity to make an adjournment application and/or request a new Family Report for over a year or request an updated report to correct any deficiency perceived by the maternal grandmother’s Counsel with respect to her allegation that the Family Consultant had failed to fully consider “the cultural considerations.” In my view the Family Consultant had considered the child’s living arrangements as they then were. She addressed the issue of the child living with a member of the maternal Aboriginal family (specifically Ms Morrow) supported by other members of the maternal family and commented that this living arrangement was consistent with the approach to child rearing practices in Aboriginal families. She made reference to relevant research with respect to this issue. She considered the importance of the child’s right to enjoy and maintain a connection with her Aboriginal family and be brought up in an environment with traditional kinship practices. She noted that the alternative for the child was that she would be raised by the paternal grandmother in a traditional manner in accordance with the practices of an Anglo – Australian family.
The maternal grandmother was the only party who was aware that the arrangements for the child had changed in April 2017. She had not communicated this information to any other party. On 19 May 2017 the matter was listed for a compliance check. No application was made on that day for a new or updated report and/or for an adjournment. On the contrary the maternal grandmother’s legal representative confirmed she was ready to proceed to trial.
Having heard cross examination of the Family Consultant by the maternal grandmother’s Counsel I formed the view that the basis for her application appeared to be that the Family Consultant’s evidence did not assist the maternal grandmother’s case nor was the Family Consultant moved from her recommendation that the child live with the paternal grandmother. I refused the application for the adjournment.
Admissibility of academic articles
Prior to the commencement of the trial, Counsel for the maternal grandmother sought to rely on a report and an academic article listed in the maternal grandmother’s case outline being Stephen Ralph, ‘Indigenous Australians & Family Law Litigation: indigenous Perspectives on Access to Justice’ (2011) and Stephen Ralph, ‘The Best Interests of the Aboriginal Child in Family Law Proceedings’, (1998) 12 AJFL 140. She argued that the articles should be admitted pursuant to section 61F of the Family Law Act 1975, section 144 of the Evidence Act 1995 and cited Davis & Davis and Anor (2007) 38 Fam LR 671 as the leading authority and Donnell v Dovey (2010) FLC 93-428 in support of her argument that the evidence be admitted.
Counsel for the paternal grandmother and the Independent Children’s Lawyer both objected to that material being admitted into evidence. The Independent Children’s Lawyer argued that the leading authority in relation to this issue could be found in Sheldon & Weir(No 3) [2010] FamCA 1138. The parties (other than the maternal grandmother) had not been provided with copies of the articles and were given time to consider their content.
In Davis (supra) Justice Young dealt with a parenting dispute over a young child born of an indigenous mother and an Anglo-Australian father. The major decision faced by Young J in Davis (supra) was the question of the relocation of the child from the care of the father and paternal grandmother in the Latrobe Valley to the care of the mother in Central Australia. Fundamental to his decision was the child’s right to enjoy her Aboriginal culture, including the opportunity to be brought up in an environment containing traditional kinship practices.
Justice Young indicated he was assisted by Ms A, a cultural consultant who was engaged by the Independent Children’s Lawyer to undertake an anthropological assessment of the Aboriginal cultural issues relating to the child. At paragraph 279, His Honour noted that:
“The concept of kinship was identified and discussed at length in Ms A’s report: para 4 thereof. These issues were not the subject of any real challenge and I therefore accept that “relationships to family and kin are over-riding factors in maintaining and legitimising Aboriginal identity”. Kinship is central to such cultural activity and ‘kin roles and responsibilities are taken very seriously’ and by s 61F are now an integral part of the Family Law Act in cases of an Aboriginal child.”
Notwithstanding the fact that Justice Young was assisted by a cultural consultant, it by no means follows that the Court is bound to enlist expert assistance in every like case when considering the best interests of an Aboriginal child. In fact, the Full Court in Hort & Verran (2009) FLC 93-418 had the following to say with respect to submissions made by Counsel for the mother regarding an appeal ground on exactly the same issue:
“[105] Counsel for the mother also referred the Court to the judgment of Young J in Davis & Davis and Anor [citation omitted]. We do not perceive anything emerging from his Honour’s judgment in that case that advances the issue of the necessity for, or desirability of anthropological evidence.”
Similarly in Sheldon (supra), Ryan J said the following in reply to submissions from Counsel for the father:
“[205] Counsel for the father submitted Hort & Verran [citation omitted] is authority for the proposition that the Court must receive anthropological or expert evidence in relation to Aboriginal culture in cases where the subject child is Aboriginal and thus was obliged to grant the adjournment. I did not accept the submission. In Hort & Verran the decision at trial was made without anthropological evidence. In that case, the Full Court agreed in some cases evidence of that type may be of assistance, but said: ‘… it is now generally accepted in Australia that Aboriginal peoples can speak for themselves particularly in relation to their own culture and traditions.’”
As noted above, Counsel for the maternal grandmother also put forward Donnell (supra) as authority for the Court’s acceptance of the articles into evidence. In Donnell (supra), the Full Court considered the decision of Howard FM (as he then was) as to whether a child born of a Torres Strait Islander father and Aboriginal mother should live with his father or the child’s sister. On appeal, the Full Court considered whether Howard FM had erred at [194]:
“In failing to inform himself of any anthropological evidence and/or ‘well recognised peer reviewed research’ concerning the respective Aboriginal and Torres Strait Islander cultures.”
Although in Donnell (supra) no expert had been called to give evidence regarding cultural practices of either Aboriginal or Torres Strait Islander culture, the child’s sister gave such evidence. In relation to this issue, and in agreement with their Honours in Hort (supra), the Full Court said the following:
“[228] While we acknowledge there are limitations associated with evidence of cultural tradition being given by a party or a person closely aligned to a party, we are inclined to respectfully agree with their Honours that evidence relating to indigenous cultural practices need not necessarily be given by an anthropologist, nor need it be the subject of ‘well recognised peer reviewed research.’ We accept that the best evidence may be that given, if it is available, by an elder or such other person within the indigenous community who is accepted by the community as being able to speak with authority as to its customs.…
[230] In the present case [the child’s] sister did not purport to be an elder of her people; however, the evidence she gave on cultural issues was not challenged and was accepted as authoritative by his Honour. The difficulty with her evidence was not that it was not given by an anthropologist or based on ‘well recognised peer reviewed research,’ but that it failed to address fully what appeared to be necessary exceptions to the custom about which she had given evidence.”
Paragraph [230] of Donnell (supra) above is particularly apposite to the present case. As noted, both the maternal grandmother and Mr Morrow gave evidence regarding cultural considerations and practices relevant to X’s upbringing that was not challenged by either Counsel for the paternal grandmother or the Independent Children’s Lawyer. I have accepted that evidence unchallenged.
Consistent with Hort (supra) and Sheldon (supra), there is no further obligation upon the Court in my view to receive further academic anthropological evidence particularly where such evidence had been conceded by the maternal grandmother’s Counsel to be “general” and by way of “background” in nature.
Further, even if it were established that notwithstanding the maternal grandmother’s evidence, there was a lacuna in the evidence with regard to cultural practice, the following paragraphs from Donnell (supra) make clear that proceeding in the absence of such evidence is not in and of itself an error:
“[186] Upon identifying the lacuna [of evidence in relation to Aboriginal cultural practice], we consider his Honour had two options. One would have been to adjourn the proceedings until such time as evidence could be found to overcome the lacuna. The other was to do the best he could with the evidence that had been placed before him.
[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.
[189] Although the Court, especially since the advent of Div 12A of Part VII, is entitled to insist on further evidence being sought, we do not consider the Federal Magistrate erred in deciding not to adjourn the proceedings and electing instead to do the best he could with the evidence he had available.
[191] Although we have concluded that his Honour was entitled to proceed in the absence of complete evidence about the relevant indigenous child-rearing practice, we have determined that he erred in seeking to fill the lacuna in the evidence by proceeding on the assumption that it was culturally appropriate to place O with his father simply because the other three children (raised in entirely different circumstances) had been placed with their father.”
I determined not to admit the articles into evidence.
Competing proposals
The parties put forward a number of competing proposals for parenting orders. The paternal grandmother (the Applicant) sought the following orders:
1. That the Applicant have sole parental responsibility for the child X born (omitted) 2011.
2. That the child live with the Applicant.
3. That the child spend time and communicate with the Third Respondent as agreed but failing agreement as follows:
a) Each alternate weekend from 5pm Friday to 5pm Sunday;
b) During the school .holiday periods at the end of Terms 1, 2 and 3 for one week, starting 5pm on the first Saturday of the school holiday period and concluding at 5pm on the following Saturday.
c) During the Christmas school holiday period at the end of Term 4 as follows:
(i) From 5pm on the third Saturday falling in the school holiday period to 5pm on the following Saturday;
(ii) From 5pm on the fifth Saturday falling in the school holiday period to 5pm on the following Saturday .
d) In even numbered years from 2pm Christmas Eve to 2pm Christmas Day;
e) In odd numbered years from 2pm Christmas Day to 2pm Boxing Day;
f) By telephone each Tuesday and Thursday from 6-6.30pm with the third respondent to initiate the call and the applicant to facilitate the call.
4. That the child spend time with First and Second Respondents when the child is spending time with the Third Respondent.
5. That for the purpose of changeover, the Third Respondent collect and return the child to the Applicants home.
6. That each party keep the other informed of their current residential address, mobile telephone numbers and any available email addresses and advise the other party of any change thereto within 24 hours of such change occurring.
7. That the Applicant and Third Respondent shall advise each other within 48 hours of any medical or dental appointments which the child is due to attend and advise each other of the name and address of any medical or other practitioner who examines or provides treatment or diagnosis in regards to the child and authorise that practitioner to give information in relation to the child to each of them.
8. That in the event of childhood illness or emergency the party with whom the child is with will contact the other party forthwith to inform them.
9. That each of the parties, their servants and agents be hereby restrained by injunction from abusing, insulting, belittling, rebuking, or otherwise denigrating the other party.
10. That the parties be permitted to liaise directly with the child's school and to receive notices, information, newsletters, reports, photographs and any other necessary information about the child's progress.
11. That each party is at liberty to attend at the child's school for the purposes of any function or activity normally attended by parents.
12. That all parties be restrained from using illicit substances whilst the child is in their care.
The maternal grandmother (the Third Respondent) sought the following orders:
1. That the Third Respondent, maternal grandmother, MS BINKS have sole parental responsibility for the child X (“X”) born (omitted) 2011.
2. That the child live with the Third Respondent, the maternal grandmother, MS BINKS.
3. That the child spend time and communicate with the Applicant, paternal grandmother, as follows:
a. Once per fortnight, from 3:00pm Friday to 4:00pm Sunday;
b. Via telephone call once per week on Wednesdays 6:00pm to 7:00pm with the paternal grandmother initiating the call; and
c. Half of all NSW public school holidays, as agreed or otherwise, for the first half of NSW public school holidays in even years and the second half of NSW public school holidays in odd years.
4. That the child spend time with the First Respondent, MS DUFFY as agreed between the parties, in the substantial presence of an agreed supervisor and failing agreement in the presence of the Third Respondent maternal grandmother.
5. That the child spend time with the Second Respondent, MS MORROW as agreed between the parties, supervised by an agreed supervisor and failing agreement under the supervision of the Third Respondent maternal grandmother.
6. That all parties are hereby restrained from using illicit substances whilst ever the child is in their care.
7. That the Third Respondent maternal grandmother and the Applicant paternal grandmother will inform each other as soon as reasonably practicable of any medical issues arising whilst the child was in their care.
The Independent Children’s Lawyer sought the following orders:
1. That the Applicant, Ms Dundas, have sole parental responsibility for the child X born (omitted) 2011.
2. That the child live with the Applicant.
3. That the child spend time and communicate with the Third Respondent maternal grandmother as agreed between the Applicant and the Third Respondent and failing agreement as follows:-
a. During New South Wales gazetted school term periods from 5:00pm Friday to 5:00pm Sunday each alternate weekend with such weekend to commence on the first weekend following the commencement of the school term;
b. During New South Wales gazette Term 1, Term 2 and Term 3 from 5:00pm on the Saturday falling on the second weekend of the holidays to 5:00pm the following Saturday;
c. During New South Wales Christmas school holiday periods as follows:-
i. From 5:00pm on the third Saturday falling in the school holiday period to 5:00pm the following Saturday.
ii. From 5:00pm on the fifth Saturday falling in the school holiday period to 5:00pm the following Saturday.
d. By telephone each Tuesday and Thursday from 6:00pm to 6:30pm with the Third Respondent to initiate the call and the Applicant to facilitate the call.
4. That the child shall spend time and communicate with the First Respondent and Second Respondent as agreed between the parties on a supervised basis.
5. That changeover for the purposes of these Orders shall occur at a location agreed between the parties but failing agreement at the entrance to Coles at (omitted).
6. That the Applicant and the Third Respondent shall advise each other within 48 hours of any medical or dental appointments at which the child attends and shall advise the each other of the name and address of any medical or other practitioner who examines or provides treatment or diagnosis in regards to the child and authorise that practitioner to give all information in relation to the child to each of them.
7. That the Applicant and the Third Respondent shall each notify the other as soon as practicable of any medical emergency in which the child requires medical treatment. Should any such emergency arise, each will inform the other of the name and address of any treating medical practitioner .and authorise that practitioner to speak to each of them.
8. That within 7 days of the date of these Orders, the Applicant and Third Respondent shall authorise any primary school or secondary school of which either of the child attends to provide information to the Applicant, First Respondent, Second Respondent and Third Respondent in relation to the child's academic and co-curricular activities, including copies of school reports.
9. That the Applicant and the Third Respondent shall inform each other within 24 hours of any change of residential address or telephone number and shall provide the amended contact details to the other parent.
10. That each of the parties is hereby restrained from speaking about the others or the others family members in a derogatory manner, either to the child or in the child's presence or allowing any other person to do so.
11. That the Applicant do all things necessary to facilitate the attendance of the child at appropriate cultural occasions and participation in cultural activities as informed by the elders of the (omitted) nation.
12. That the Independent Children's Lawyer be discharged.
Evidence
The paternal grandmother relied on the following documents: the affidavit of Ms Dundas filed 4 May 2017, the affidavit of Mr J filed 4 May 2017, Family Report of Ms C filed 8 March 2016 and Memorandum to Family Report of Ms C filed 18 July 2016. A number of Exhibits A1 – A4 were also tendered.
The maternal grandmother relied on the following documents: An amended response filed on 12 May 2017, the affidavits of Ms Binks filed 12 May 2017 and 2 October 2015 and an affidavit of Mr A filed 12 May 2017.
Legal Principles
The statutory provisions the Court is required to consider in determining parenting applications are set out at Part VII of the Family Law Act1975 (Cth). Pursuant to section 60CA and section 65AA of the Act in determining whether to make a parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. This is so where a person interested in the care, welfare and development of a child makes an application for a parenting order (as in this case the child’s grandmothers).
In Aldridge & Keaton (2009) FLC 93–421 the Full Court held at [75] to [79]:
“While there can be no doubt that the amending Act (2006 amendments) has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
the recognition in s 65D(1)that ultimately a Court should make such parenting order as it thinks proper; and
that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.”
When considering making a parenting order, the Court is required to have regard to the objects of the legislation and the principles which underpin those objects. Pursuant to section 60B(1) of the Act the “objects” … are to ensure that the best interests of a child 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.
Pursuant to subsection 60B(2) of the Act the principles underlying the objects (save where it would be contrary to a child’s best interests) are:
(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;
(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).
Cultural issues are important in this matter. The maternal family identifies as Aboriginal. Thus paragraphs 60B(e) and 60CC(3)(h), and subsection 60CC(6) and section 61F of the Act are of significance.
Paragraph 60CC(3)(h) provides that:
“s.60CC(3)(h) If the child is an Aboriginal or Torres Strait Islander child:
(i) the child’s right to enjoy his an Aboriginal or Torres Strait Islander culture with other people who share that culture; and
(ii) the likely impact any proposed parenting order under this Part will have on that right.”
Section 60CC(6) provides that:
“s.60CC(6) For the purposes of paragraph 3 (h) an Aboriginal child’s or a Torres Strait child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.”
Section 61F provides:
“s. 61F 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.”
Section 61F and sub-sections 60CC(3)(h) and 60CC(6) were inserted in the Family Law Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (‘2006 Amendments’). In Hort (supra) the Full Court quoted Young J’s explanation in relation to the 2006 Amendments in Davis (supra) as follows:
“[106] The 2006 amendments strengthened the language of the provisions in relation to the cultural needs of indigenous children. They introduced a specific right of the child to, inter alia, “explore the full extent” of his or her culture and “to have the support, opportunity and encouragement necessary” to do so. A child of Aboriginal heritage also has the right to “develop a positive appreciation of that culture”. The previous legislation required the Court to consider “the need” of an indigenous child to maintain a connection with his or her culture. By comparison, the new language creates a far greater imperative for the Court to give consideration to issues of culture. Certainly, the 2006 amendments imbued the notion of “connection” with a stronger and more active meaning.”
The relevant explanatory memorandum noted that, as quoted by the Full Court in Donnell (supra) at [179]:
“[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.”
The Full Court in Hort (supra) went on to consider how the factors applicable to Aboriginal children in this new statutory context are to be applied (quoted with approval in Drake as follows):
“[193] In Hort & Verran (2009) FLC 93-418 the Full Court considered how the factors applicable to Aboriginal children are to be applied. Their Honours said:
“[106] In Davis & Davis and Anor (2008) 38 Fam LR 671; [2007] FamCA 1149 Young J said:
“[77] In B & F [1998] FamCA 239, Moore J considered the scope and meaning of the term ‘connection’. At 29-30 her Honour stated”:
“As I see it, the requirement to maintain a connection to their lifestyle, culture and traditions involves an active view of the child's need to participate in the lifestyle, culture and traditions of the community to which they belong. This need, in my opinion, goes beyond a child being simply provided with information and knowledge about their heritage but encompasses an active experience of their lifestyle, culture and traditions. This can only come from spending time with family members and community. Through participation in the everyday lifestyle of family and community the child comes to know their place within the community, to know who they are and what their obligations are and by that means gain their identity and sense of belonging.”
[194] In Donnell & Dovey [2010] FamCAFC 15 the Full Court said:
[321] …[W]e consider that an Australian Court exercising family law jurisdiction in the twenty first century must take judicial notice of the fact that there are marked differences between indigenous and 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.
[322] 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’.
[323] 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.”
The Full Court in Backford & Backford and Anor [2017] FamCAFC 1 (12 January 2017) their Honours Thackray, Kent and Cronin JJ presiding held as follows:
“It will be seen that s 61F is not confined to the making of an order for parental responsibility. Rather, it has application to the whole process under Part VII of the Act, and to that extent the trial judge was obliged to take it into account in making all of her orders. It is true her Honour did not make express reference to s 61F, but this was not obligatory, provided she had regard to relevant Aboriginal kinship obligations and childrearing practices: Donnell & Dovey [2010] FamCAFC 15;(2010) FLC 93-428 at [184].
In Backford (supra) the Full Court noted that:
“There was no evidence of these obligations and practices, apart from what we have mentioned above, and no submissions were made about s 61F, or how it should be applied. Nevertheless, the trial judge accepted that the co-parenting of children by family was a characteristic of Aboriginal culture. In doing so, her Honour had regard to one of the most significant matters underpinning s 61F. The Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) relevantly noted that (emphasis added):
‘The purpose of [s 61F] 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.’
Her Honour accepted the mother’s evidence of the involvement of her family in the care of the children, but she also identified the risk her family posed to the children …”
Accepting the significance of the requirement for the Court to consider section 61F, there are a number of other considerations the Court must have regard to in determining whether to make a parenting order. Under Part VII of the Act the Court is required to consider (in so far as they are relevant) the matters set out in section 60CC of the Act. Those matters include primary considerations and additional considerations. There are two primary considerations (section 60CC(2) of the Act) namely:
“(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.”
In Dukes and Anor & Talford [2017] FamCA 63 (10 February 2017) Johnston J discussed whether the primary considerations apply to grandparents. He said at [162]:
“[162] This primary consideration of meaningful relationship does not apply to the grandparents because it is clear that it only applies as a primary consideration to each of the child’s parents. In Burton & Churchin and Anor (2013) FLC 93-561 the Full Court said as follows:
“... There can be no question ... that the words of s 60CC(2), or more accurately s 60CC(2)(a), refer only to the benefit to the child of having a relationship with both the child’s parents. The paragraph says what it means, and there is no canon of statutory construction which would enable it to be rewritten. If this needs to be confirmed then we refer to and adopt what the Full Court (Warnick, Thackray and O’Ryan JJ) said in Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428, at [101]:
“In our view, there can be no doubt that 60CC(2)(a) has no application to a person who is not a “parent”. That is so because the paragraph refers only to “parents”, and there is no extended definition of that word ...
In my view, the benefit to the child of having a meaningful relationship with her grandparents is a relevant additional consideration pursuant to s 60CC(3)(m)….”
[163] As indicated above, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence is the second primary consideration. In Burton (above) the Full Court said that there can be no doubt that s 60CC(2)(b) has application in every parenting proceeding, no matter who the parties to those proceedings are.”
I accept that the primary consideration of meaningful relationship does not apply to grandparents but agree it is a relevant consideration under paragraph 60CC(3)(m) of the Act.
Subsection 60CC(2A) of the Act directs the Court in applying the primary considerations to give greater weight to subsection 60CC(2)(b) which relates to the need to protect children from physical or psychological harm from being exposed to abuse, neglect or family violence. This subsection is of particular significance in this matter.
The Court is also required to have regard to the relevant additional considerations under section 60CC(3) of the Act in so far as they are relevant to the matter. The relevant matters for consideration in this matter include the nature of the relationship of the child with each grandparent and other family members, the likely effect of any change in the child’s circumstances including any separation from any other child or other person (including any grandparent or other relative of the child), the capacity of a person (including any grandparent or other relative) to provide for the child’s emotional and intellectual needs, the child’s right to enjoy her Aboriginal culture, to share that culture with other people who share that culture and the likely impact any proposed parenting order may have on that right, family violence involving any member of the child’s family, the benefit to the child of having a meaningful relationship with a family member and the ability of the child’s carers to communicate regarding matters concerning the child’s welfare.
Assessment of the Evidence
I have undertaken a comprehensive analysis and assessment of the evidence having regard to the section 60CC(3) factors below.
Paternal grandmother
At the time of the hearing the paternal grandmother lived in (omitted) with her husband Mr J to whom she had been married for 39 years. She had lived in (omitted) her whole life and intended to remain there. She was employed in the family business “(omitted)” as a (occupation omitted) working alongside her husband and their son Mr B. Ms Dundas’ son Mr B had passed away on (omitted) 2010. He had taken his own life though she raised some question about this given she was of the view that he did not suffer from any mental illness nor was he depressed at the time. This issue was not pursued at the trial.
The paternal grandmother had attended the hospital for X’s birth. It was her belief that X was cared for by her mother Ms Duffy for the first 6 to 8 months with the support of the maternal family. She said she visited X twice a week from the time she was born and assisted the child’s mother by collecting groceries and items for the baby. From about October 2012 Ms Morrow the child’s aunt cared for X with the assistance of the maternal grandmother. She said she would spend time with X a couple of times a week.
She said her time with the child became more regular and X would spend time with her each alternate weekend and sometimes for longer periods if Ms Morrow was out of town. This was not disputed by the maternal grandmother. She said X referred to her as “mum” occasionally however she corrected her and advised her to refer to her as “nana.”
She said in about August 2014 X’s mother approached her and asked her to care for the child full time. She agreed to the request and lawyers were involved to draw up consent orders. She provided Ms Morrow with a copy of the draft consent orders and she said she encouraged the child’s mother to obtain her own legal advice. On 26 October 2014 Ms Morrow was incarcerated. The paternal grandmother kept X on the Sunday night and took her to preschool the following day. On 27 October 2014 she picked the child up from preschool. She said she contacted the child’s mother and told her that X did not want to go to the maternal grandmother’s home and that Ms Morrow was in prison. The paternal grandmother said that the child’s mother told her “you keep her” and she retained the child.
She said after speaking to the child’s mother she visited her at her home. While there the maternal grandmother came to the door and started banging loudly on the door. The maternal grandmother then pulled open the front side window and climbed through it, and continued yelling. The paternal grandmother then left the premises with X and attended the police station and reported the matter. She took out an ADVO against the maternal grandmother on the basis that she said she feared for her safety.
Shortly after this incident, the paternal grandmother’s daughter Ms K called her and said “Ms Duffy and Ms Binks just showed up at my house. They were very angry. Ms Binks said if you don't drop X back they will go and burn your house down. Mum I'm worried, it was very scary.” On about 28 October 2014 the child’s mother attended the paternal grandmother’s home with a friend and attempted to take X. The child was apparently very stressed and confused. The paternal grandmother called the police. The mother and her friend left without the child.
On 29 October 2014 the paternal grandmother said she was “down the street with X going to the bank and she saw Mr A (X's grandfather) down the street. He yelled at me on the street ‘You white mother fucking slut’” She said X heard her grandfather yelling at her. On 29 October 2014 her solicitor received a letter from the maternal grandmother’s solicitor requesting that the child be immediately returned. X was returned on the morning of 30 October 2014. A section 60I certificate was issued in November 2014 following the paternal grandmother’s attempt to organise mediation.
Regarding this incident the maternal grandmother did not dispute that she climbed through the window whilst the paternal grandmother was visiting Ms Duffy but denied yelling and behaving in an aggressive manner. I accept the paternal grandmother’s evidence that Maternal grandmother was aggressive and abusive towards her when she attended her daughter’s home and climbed through the window. I expect she was upset that the paternal grandmother refused to return X to her. I accept also the paternal grandmother’s evidence that the child’s mother did request that she care for the child full time. The mother chose not to participate in the proceedings and there was nothing to contradict this assertion by the paternal grandmother.
Health concerns
The paternal grandmother raised a number of health concerns for X. She said in November 2013 the child had a persistent red scaly scab on the top of her head. She took her to a pharmacist about the red patches on her head. She also had ring worm on her arm. The pharmacist advised her to apply Anti-Fungal cream 3 times per day. She bought the cream and applied it. She gave the maternal grandmother the cream and explained that the cream had to be applied 3 times per day. She said that on many occasions she was told that the maternal family had lost the cream. X’s scalp became progressively worse and she started to lose her hair. She urged Ms Morrow to take the child to the doctor. Ms Morrow would reply “Yeah I will take her tomorrow”.
The paternal grandmother took X to see Dr A in late 2013 or early 2014 at (omitted) Medical Centre due to her concern that the condition was not improving. He advised to wash the child’s hair twice a week with a very small amount of Nizarol shampoo and apply the anti-fungal cream to the ringworm. The paternal grandmother said she told the maternal grandmother and Ms Morrow about the doctor's appointment and also the advice she had received.
In December 2015, the maternal family took the child to the doctor and provided the paternal grandmother with Elocon, Novason and Lamsill creams for X. The medication was returned with the child to the paternal grandmother on occasion but not regularly. As the child’s head was not improving the paternal grandmother told the maternal family X needed to see a specialist. She said that the child’s bald patch was growing and the redness and scabs were becoming worse. Months went by without any advice as to when X was to see a specialist.
On the weekend of 19-20 March 2016 X was very stressed with discomfort from her scalp. The paternal grandmother took her to see Dr P at the hospital. He took some swabs. On 21 March 2016 X was dropped off to the maternal family and Dr P’s assessment note was provided to the Aboriginal Medical Centre. The paternal grandmother told Ms Morrow that she had dropped the note off and had taken the child to the hospital. She told Ms Morrow that X needed to see a specialist. The paternal grandmother alleged that Ms Morrow did not advise her about the results of the swabs despite being asked for them. At the time of the hearing she remained unaware of the outcome of X’s medical assessment.
In early April 2016 the paternal grandmother reminded Ms Morrow of the importance of making a specialist appointment. Ms Morrow said “I have made appointment for X to see skin specialist on 27 April.” However, 27 April came and went and X did not go to the specialist.
In late April 2016 neither Ms Morrow nor the maternal grandmother had taken X to see a specialist. The paternal grandmother asked Ms Morrow “Please call (a doctor) and get a referral for X to see the specialist and then make an appointment for her; her head is getting worse and is very painful for her”.
On 29 April 2016 the paternal grandmother was told by the maternal grandmother “We have an appointment for X on 4 May 2016” however no details were provided regarding who the specialist was that the child was to attend. The paternal grandmother said she had been advised in the past that appointments had been made when they had not been made and at other times appointments were cancelled by the maternal family.
On 30 April 2016 the paternal grandmother said that the child’s head was itchy, very painful and bleeding. She had lost a lot of hair and was in pain. She took X to the doctors to get a referral to a dermatologist Dr I at Dr G in (omitted). She secured an appointment for 6 May 2016. When she returned X on Sunday 1 May 2016, Ms Morrow said “We have an appointment for X on 12 May”. Ms Morrow however was unable to name the specialist who had been booked, when asked.
On 2 May 2016 the paternal grandmother’s solicitor emailed the other parties to advise them that she had made an appointment for X to see Dr I on 6 May 2016.
On 5 May 2016 she was advised by Ms Morrow's solicitor that X had seen a specialist on 4 May 2016, however no details of the name of the specialist were provided. Neither Ms Morrow nor the maternal grandmother had advised the paternal grandmother that they had managed to secure an appointment with a specialist for X on 4 May 2016 nor did they advise her of the outcome of the appointment. I accept this evidence and accept that both the maternal grandmother and Ms Morrow were aware of the paternal grandmother’s concerns for X regarding the skin condition on her scalp.
On 5 May 2016 the paternal grandmother attempted to contact Ms Morrow by telephone through Ms J. The paternal grandmother said Ms J refused to put her through to Ms Morrow and said “X's allergic to cats and dogs, she's on tablets and you won't see her for three weeks”. The paternal grandmother said “Ms Binks has a dog”. Ms J then hung up on her. Later that day the paternal grandmother said she spoke to the maternal grandmother and queried whether X had seen a specialist. Maternal grandmother said she had and they had “shampoo and tablets” for her. She said she did not know the name of the specialist but “the doctor was near the hospital”. She told the paternal grandmother that she would call her back with details but she did call back or clarify with her who the doctor was that attended upon X.
On 6 May 2016 the paternal grandmother received an email from her solicitor which included a report from the specialist that X had seen on 4 May 2016 which Ms Morrow's solicitor had provided. X had seen the same specialist Dr I that the paternal grandmother had arranged for her to see. Both Ms Morrow and the maternal grandmother were aware that the paternal grandmother had booked an appointment with this specialist and did not advise her that X had actually been to see this specialist. The paternal grandmother then cancelled the appointment she had made with the specialist.
The paternal grandmother raised a concern that X had been booked in twice to see the specialist as she had two Medicare numbers. She said she had been concerned about this for a couple of years and discussed this with Ms Morrow in 2014 and asked her to sort this out. This had not been done. She said she had been unable rectify the situation as she did not have full time care for X. She said that Ms Morrow had booked X under the name “X” while her birth certificate registered her as “X”.
I accept the evidence of the paternal grandmother that X’s skin condition on her head was not treated by the maternal family for many months and their care of X in this regard was inadequate. I accept that X found this condition painful and distressing in addition to causing her to lose her hair. There was a total breakdown in communication between the paternal grandmother and the maternal family regarding this issue. I am unable to conclude whether the breakdown in communication was deliberate in particular organising an appointment with the same specialist but failing to advise the paternal grandmother of this. It became apparent however during cross examination that the maternal grandmother appears to be overwhelmed with the care responsibilities that she has for her two grandsons A and B as well as her partner who is unwell. I understand from her evidence that B demonstrates “autistic” characteristics for which he is treated with medication. The maternal grandmother indicated that from time to time her partner is very ill from the health condition he suffers.
I find that the maternal grandmother did not have the capacity to be vigilant with regard to X’s skin condition in circumstances where she was responsible for the care of a number of other family members as well as dealing with the consequences of the behaviour of her adult children. I find that the maternal grandmother’s responsibilities to her grandsons and her partner are both physically and emotionally demanding. I have given this factor considerable weight in determining what parenting orders are in the child’s best interests. I find that Ms Morrow did not adequately address the concerns raised by the paternal grandmother regarding X’s skin condition. In any event the maternal co–parenting arrangement appears to have broken down in so far as Ms Morrow has determined not to continue to be involved in X’s care.
The paternal grandmother said in August 2014 when getting ready for a bath the child complained of having a sore nipple. Her nipple had a red mark on it. She was asked what happened to her and she said “Nanna [Ms Binks] kissed me hard.” She said the mark looked sore. The paternal grandmother suggested to Ms Morrow that she take the child to the doctor to have it checked as it was sore. Ms Morrow told her “Yeah I will take her tomorrow”. Over the following days she asked Ms Morrow about the doctor’s appointment and was advised the child had not been to the doctor. The paternal grandmother said she offered to take the child to the doctor however Ms Morrow insisted she would take her. When the paternal grandmother next picked up the child the sore looked infected and had doubled in size. She said that the maternal grandmother told her that they had lost the prescription for the sore and asked the paternal grandmother to pick up another one from the chemist, which she did. The paternal grandmother said that due to the infected sore, the child missed out on swimming lessons for the rest of the term that the paternal grandmother had organised for her to attend. I find that the maternal family failed to adequately treat the sore and as a consequence the sore became infected resulting in the child missing swimming lessons.
Ringworm
The paternal grandmother raised concerns about X having frequent outbreaks of ringworm on her body. She had ringworm on her back, her arms, her legs and her chest. She also suffered from an itchy anus and the paternal grandmother purchased Vermox worm choc chew tablets for her and gave a box of the tablets to (omitted) when Ms Morrow was not home. I find that Ms Morrow and the maternal grandmother did not adequately attend to X’s ringworm infestation. The maternal grandmother apparently kept pets which caused this infestation.
Dentist
The paternal grandmother requested the maternal family on numerous occasions to have X’s teeth checked. She was not advised that the child had been taken to the dentist on any occasion. She booked the child into the dentist in August 2014. The dentist found a small mark on her back tooth that was treated. She booked a further appointment in February 2015 as a follow up and called the maternal grandmother to remind her of the appointment. On the day of the appointment the child’s aunt Ms K went to pick up X to take her to the dentist. Ms Binks told Ms K “We are going away can’t you make the appointment on another date.” The paternal grandmother had to cancel the appointment and make another appointment.
The paternal grandmother said she advised the maternal grandmother and Ms Morrow of the next dental appointment but they did not make X available. That appointment was again cancelled. No further dental appointments were booked for X until the paternal grandmother booked an appointment for the child to see the dentist in March 2017 as she complained of a sore tooth. I find that the maternal family did not ensure X received adequate dental care.
Diet
The paternal grandmother raised concerns that the child’s diet was poor when living with the maternal family. She said X often eats “chips”, “biscuits”, “two minute noodles” and “frankfurts” whilst in the care of the maternal family and readily asks her paternal grandmother for this food. She said she encourages the child to try to eat meat and vegetables noting that the child often craves “junk food.” I note that the maternal grandmother and Mr A indicated that the child has a healthy diet eating fruit and vegetables however she is currently overweight. I am unable to make any finding regarding the child’s diet.
Milk bottle
At the time the paternal grandmother filed her affidavit X was still using a “milk bottle” and required this bottle to settle her to sleep at night. According to the paternal grandmother the child told her that Ms Morrow filled her bottle with coloured milk. The paternal grandmother said she continued to permit the child to use the bottle but filled it with plain milk and attempted to wean her off the bottle. She said this had been difficult as when she returned to her maternal family she continued to use the bottle. In my view it would be unusual for a child of 6 who attends school to continue to be reliant on a “bottle.”
Other
The paternal grandmother raised a concern that the child continued to use “pull up” nappies at night time. In her view it was not common for a child to still require nappies at 6 years of age. In my view weaning the child off the “bottle” and “pull up” nappies will facilitate the child attaining independence which will no doubt assist her as she moves through primary school. I am confident that the paternal grandmother has the capacity to ensure this change for the child. I am not confident that the maternal grandmother has the capacity to monitor and assist the child with this change given the current demands she experiences in caring for her partner and two grandsons and other matters referred to in this judgment.
Cigarette burns
In March 2014 the paternal grandmother said she noticed the child had a small red mark on her back that looked like a cigarette burn. When she returned the child to Ms Morrow she asked what the mark was from and Ms Morrow responded “she has been playing up big time”. The paternal grandmother responded to Ms Morrow “this is not good Ms Morrow” but did not report the burn to care and protection authorities. However the maternal grandmother said that police had approached her and alleged she had burnt the child with a cigarette so she obtained a report from a doctor in April 2014 that indicated that the mark on the child was not consistent with a burn mark. This evidence is discussed later.
In October 2014 the paternal grandmother said she noticed a mark on the child’s hand that looked like the mark she had seen in March 2014. The mark was quite faded so she did not report the matter to Family Services or question the maternal family about it however she did take the child to police and showed them the mark on the child’s hand. The maternal grandmother denied burning the child with a cigarette.
In March 2015, the paternal grandmother said she noticed another mark that appeared to resemble a cigarette burn. She asked X “what is that?” and pointed at the mark. The child said “Nanna Ms Binks burnt me”. She asked “why did she do that”, X replied “she burned A too because we were naughty”. The paternal grandmother took the child to the hospital. The child repeated to the doctor that she had been burnt by a cigarette and the doctor made a mandatory notification to the NSW Department of Community Services. The child also told police she had been burnt by smoke.
In May 2015, the child told the paternal grandmother “it was poppy Mr T who did the cigarette burn on my back, Mr E did the other one and Nanna Ms Binks did my hand one”. She volunteered this information one day “out of the blue” according to the paternal grandmother. In July 2015 the paternal grandmother said she noticed another burn on the child’s knuckle on her right hand, and a round red mark on her chest and leg.
The maternal grandmother denied burning the child with a cigarette. She became emotionally heightened in the witness box when questioned about this issue.
Schooling
The paternal grandmother indicated that the child’s recent school report from second semester in 2016 indicated she was below average in many areas of learning. It indicated she rarely completed set homework tasks and had missed 27 days of school and 6 partial days. There were 15 unexplained absences in the second semester.
She said that whilst in her care she reads with X and gets her to write stories to help with learning. She said the child loves these activities and the grandmother enjoys assisting her learning. She asked the child “does Aunty help you read?” and the child replied “aunty can’t read”. She said X was recently invited to participate in a reading recovery program. It was unclear whether Ms Morrow or the maternal grandmother had followed this up. I am satisfied that the paternal grandmother regards X’s participation in education important to X and would ensure her regular attendance at school, assist her with learning and engage with the school in any school activities in which parents are invited to attend.
In March 2016 the child was to participate in the (omitted) Parade at her school and was very excited. She told her paternal grandmother “Nanna Ms Binks or Aunty don't come to see me. Mum doesn't come either”. The paternal grandmother said “Poppy Mr J, Uncle Mr B and I will come to see you”. On 22 March 2016, the day of the (omitted) Parade, the paternal grandmother went to see X however she was not at school. No reason was provided for her absence. Neither the maternal grandmother nor Ms Morrow attended.
The paternal grandmother indicated she had organised with the maternal grandmother to take the child to an Easter breakfast on the Friday a week before that event. When she attended to collect the child she was told that the family were in Canberra.
The paternal grandmother said that the child missed being in her school photos in 2017 as she was absent from school on the day the photos were taken. She was the only child absent.
She said she attends the school every Friday at 2:15pm for the school assembly. X sometimes receives awards at the assembly. According to the paternal grandmother neither Ms Morrow and nor the maternal grandmother have ever attended the school assembly. I am confident that the paternal grandmother regards it as extremely important for X to provide her with consistency, to ensure that she and members of her family participate in X’s school activities to support and encourage her. I am not confident that the maternal grandmother regards her participation in X’s school activities as a benefit to X.
Earlier in 2017 the child indicated to the paternal grandmother that she was quite anxious about how she would get home after school. She said she did not know if “Nanna Ms Binks” was picking her up or whether she had to catch the bus. She said “nanna Ms Binks runs out of petrol!” Ms L the child’s teacher told the paternal grandmother “X gets very stressed about this, I have told Ms Morrow and Ms Binks to be consistent and drop her off at school only and then she will catch the bus in the afternoon”. That afternoon the maternal grandmother came to pick up X, despite the teacher speaking with her and telling her that she would catch the bus home.
Extracurricular activities
The paternal grandmother enrolled the child in swimming lessons however she said on many occasions Ms Morrow did not make the child available on the Saturday morning (the day of swimming class) despite being reminded that the child had her swimming class. She said X missed many classes when X was in Canberra, (omitted) and (omitted). On one occasion she had conjunctivitis. She missed swimming for 10 weeks due to the infected sore on her breast. On other occasions the maternal family would simply not make her available to attend swimming class. She said she had again registered the child for swimming in May 2017. The maternal grandmother indicated she did not consider swimming an appropriate activity for X given her skin condition.
Drug use
The paternal grandmother raised concerns that Ms Morrow had told the report writer that she had used Ice and marijuana and that the maternal grandmother had told the report writer that she had smoked marijuana. Both Ms Morrow and the maternal grandmother had said they were not able to complete many of the drug tests as they could not afford to do so. The maternal grandmother undertook a hair follicle testing which showed a positive result for marijuana. No drug tests were completed for Ms Morrow. Mr A has a medical condition. He indicated he used marijuana which gave him relief for his medical condition and he continued to use that drug. He acknowledged that the family’s new home on “(omitted)” had a zero tolerance policy with respect to drug and alcohol consumption. He accepted that his use of marijuana risks the family being evicted from the premises. I accept that the paternal grandmother has legitimate concerns for X regarding the maternal family’s drug use.
The Family Consultant concluded:
“In making recommendations in this matter, I am concerned not to appear racist and to recognise X’s right to knowledge of her indigenous culture. However, this could however be achieved by visits to Ms Morrow and her indigenous family. The Court must assess whether the care concerns raised by Ms Dundas are sufficient to merit a change of primary carer. I suspect they are and that X would have a better quality of life with her grandparents with more optimal. Long-term outcomes for her health and general well-being. In my opinion, X would readily adapt to a change in her care arrangements.”
The Family Consultant recommended that X reside primarily with the paternal grandparents and spend time with Ms Morrow and her extended family each alternate weekend. I accept there are significant limitations in her report.
I put no weight on the Family Consultant’s comment that she did not want to appear “racist.” I disregard this comment. The Court must determine what is in X’s best interests. This is the paramount but not the sole consideration. As I have indicated a very significant factor in this case is that X’s maternal family is Aboriginal. I have considered this fact throughout this judgment. It is well recognised that Aboriginal and Torres Strait Islander people are regarded as the traditional custodians of the land and their culture is amongst the oldest living culture in human history. It is also well recognised that Australia is a multi–cultural nation with millions of people from diverse cultural backgrounds.
I accept that the Family Consultant’s report provides limited information regarding the maternal grandmother’s capacity to care for the child. Having heard the evidence I am satisfied that I am in a position to make a determination about the maternal grandmother’s parenting capacity. I have done so throughout this judgment.
The maternal grandmother did not initially take on the child’s care when she was about 6 to 8 months old due as I understand to the extensive care responsibilities she was undertaking for her husband and two grandsons. In my view she has done her best to care for her family in the manner she considered appropriate. I find she is overwhelmed from time to time with the responsibilities placed on her by her family. She is passionate in her devotion and commitment to her family but misguided with respect to her attitude regarding the family’s engagement in criminal conduct. In addition I am concerned that she supported X continuing to live primarily with Ms Morrow notwithstanding Ms Morrow’s mental health issues which would on occasion result in the child being exposed to violence, her involvement in illicit drugs and other risk taking behaviour. I note the concerns raised by Mr Morrow and the order sought that X’s aunt and mother spend time with the child supervised. I remain concerned regarding the maternal grandmother’s lack of transparency in painting a picture that Ms Morrow’s care of X was “wholly positive” (in her October 2015 affidavit) when she held concerns regarding her care of X. I remain particularly concerned as to why X remained with Ms Morrow for many months when the maternal family moved to (omitted).
Parties’ submissions
Throughout the proceedings, and particularly in her cross-examination of the paternal grandmother, Counsel for the maternal grandmother sought to make a distinction between, on the one hand, knowledge of culture that can be “read in a book” and, on the other hand, enjoyment of a culture that comes from active involvement in its traditions and practices. Flowing from this proposition was the submission that the paternal grandmother’s proposal that X spend every second weekend and half of the school holidays with the maternal grandmother and her partner did not provide enough time for X to be “immersed in her culture and to have the full enjoyment of her culture”. Although not voiced explicitly, it is understood that this “right” emerges as a consequence of subsections 60CC(3)(h) and (6) of the Act.
Neither Counsel for the paternal grandmother nor the Independent Children’s Lawyer challenged Counsel’s distinction as to knowledge and/or enjoyment of Aboriginal culture. However, on the question of immersion, the Independent Children’s Lawyer questioned whether “immersion” is in fact what sub-section 60CC(3)(h) requires. He further stated that viewing the question through this lens incorrectly casts the issue as one of “preferment” of one culture over another rather than recognising the fact that the child has two cultures, her Aboriginal and Anglo-Australian heritage.
The present case is distinguishable from those such as Sheldon (supra) and Davis (supra), where there were great distances between the parties’ residences effectively prohibiting the children’s involvement with both parents’ cultures. On the contrary, the evidence is clear that both the maternal grandmother and her partner and the paternal grandparents have shared X’s care since birth. Both live in (omitted) in close proximity to each other and there is no suggestion that either desire to relocate. Drawing on the instruction of the Full Court in Backford (supra), in determining her care arrangements, a holistic assessment balancing all of X’s rights and needs is required, and subsection 60CC(3)(h) is but one relevant consideration.
In Backford, the Full Court also explained the combined operation of sub-ss 60CC(3)(h) and (6) as follows:
[22] The mother contends that insufficient weight was given to s 60CC(3)(h) and s 60CC(6) of the Act, which emphasise the rights of Aboriginal children to maintain a connection with their culture and to have the opportunity to explore and develop a positive appreciation of it. However, while recognising the importance of these matters, the Act does not mandate that orders must be made which protect these rights. Instead, s 60CA provides that “in deciding whether to make a particular parenting order … a Court must regard the best interests of the child as the paramount consideration”. This involves a holistic assessment and balancing of all of the child’s rights and needs.
Discussion
I have taken into consideration the objects and principles of the Act in assessing and analysing the evidence in the proceedings. I have considered the interplay between section 61F of the Act and other relevant statutory provisions. I place significance of the unique kinship obligations and child rearing practices of the Aboriginal culture. I have accepted the unchallenged evidence of the maternal grandmother and her partner regarding these practices.
The maternal grandmother and her partner Mr A identify as Aboriginal. I accept when the child is in their care she will be exposed to traditional kinship practices and will be instructed in traditional Aboriginal culture and spend time with them in a community with other Aboriginal people.
I note however there were some significant deficiencies in the evidence. The child’s mother did not participate in the proceedings and there was no evidence regarding whether she identified as an Aboriginal person or regarded her Aboriginal heritage as important to her or to her child. There was no evidence as to the identity of the child’s maternal grandfather (Ms Duffy’s father) or whether he identified as an Aboriginal person. No explanation was provided as to why the child’s mother did not participate in the proceedings given that at the time of the hearing she was living in the home of the maternal grandmother. There were risk issues regarding the mother’s care of some of her mother children, half–siblings to X.
There was no explanation as to why the child’s aunt Ms Morrow did not participate in the proceedings or why she no longer wished to care for the child other than she had decided to move to Canberra and not return to the (omitted) area. When interviewed by the Family Consultant, Ms Morrow indicated that her indigenous background was “not really” of significance to her. She told the report writer that she did not pursue any indigenous activities herself though X had “done a few things in preschool.” She did indicate that it was important for X to learn about her culture.
This matter was one of considerable complexity and a difficult matter for the Court to determine. Accepting the significance of the requirement for the Court to consider section 61F there are a number of other considerations the Court must have regard to in determining whether to make a parenting order. In this matter I have placed greater weight on the need to protect the child from physical or psychological harm from being exposed to abuse, neglect or family violence. There was no evidence before the Court nor was there any suggestion that X would be exposed to any risk whilst in the care of the paternal grandparents. There are a number of issues of great concern to the Court should the child live for the majority of time with the maternal grandmother notwithstanding the very significant issue that the maternal family is Aboriginal.
Abuse, neglect and family violence
There is a real likelihood that should X live with the maternal grandmother, despite her good intentions, she will be exposed to persons who readily engage in criminal activity and present as unacceptable role models for the child. There is a risk that family members who have engaged in violent activity would spend time in the home of the maternal grandmother and police are likely to continue to be involved with the maternal family despite the move to (omitted). Further the child’s mother currently lives in the maternal grandmother’s home. She is undergoing drug rehabilitation. She has a history of unsatisfactory care of her other children the two younger children having been removed from her care. Her partner who is currently incarcerated may return to the home once released from jail. Many family members have a history of involvement in past criminal activity. I have determined that X did suffer a cigarette burn whilst in the care of the maternal family. The maternal grandmother and her partner continue to use marijuana from time to time and as such they risk eviction. At times the child’s serious health issues have not been addressed and her schooling has been inconsistent. I remain concerned about the maternal grandmother’s capacity to provide ongoing safe, consistent care to the child. I have balanced these considerations with the need to ensure that she is part of the maternal family’s Aboriginal community.
Additional considerations
Child’s wishes
I accept when interviewed by the Family Consultant in March 2016 X indicated she wanted to continue to live with her aunt Ms Morrow. She was only 5 at that time. Ms Morrow is no longer willing to care for the child. I accept the evidence of the Family Consultant that when interviewed X presented as a confident, secure child which indicated that her care arrangements had been adequate. There is no further evidence regarding X’s wishes. I note she is only 6 years old and any wish by X would be given limited weight due to her age and stage of development.
Nature of the relationship
I accept that X has a close and loving relationship with all her carers. Both grandmothers have been involved in X’s care since birth. I intend to make orders that ensure that X will be involved with both grandmothers in the future. I note however that the paternal grandmother has been consistently involved in X’s care. Regarding the maternal grandmother’s involvement she effectively shared the care of X with her daughter Ms Morrow during weekdays until about mid 2016 when she moved to (omitted). She said she spent very little time with X until about March 2017 when she took the child into her care. X continued to attend the same school as her siblings but did not spend time with them outside of school other than during school holidays during this period.
From sometime in March 2017 until the first day of the trial on 24 May 2017 the child has lived with the maternal grandmother and her siblings at (omitted). She has continued to spend time with her paternal grandparents on weekends. She currently lives on an Aboriginal Reserve with members of her maternal family. Extended family members also live on the (omitted) reserve. However numerous maternal family members remain living at (omitted). Ms J no longer lives with the child nor does her aunt Ms Morrow. Those persons had primarily cared for the child from the time she was about 6 to 8 months old. I accept that the child has close relationships with all family members.
Likely effect of change and separation from her maternal family
There has been a significant disruption to X’s young life. The arrangement between the maternal grandmother and Ms Morrow changed when the maternal grandmother and her family moved to (omitted) in mid-2016. The child then spent very little time with her maternal grandmother from that time until March 2017 (about 10 months) though the maternal grandmother indicated she attended the child’s home to deliver her to school. Notwithstanding that it was X’s first year of school she missed a significant amount of school time in 2016.
Her aunt Ms Morrow, one of her primary attachment figures is no longer willing to care for her. She is living in Canberra and the maternal grandmother seeks that her time with X in future be supervised. Ms J with whom she shared a home has moved into a retirement home.
From about March 2017 the child’s mother (who had not been a significant carer for her) has lived in the home of the maternal grandmother. According to the maternal grandmother that arrangement is temporary. She seeks an order that the child’s time with her mother be spent supervised.
The child’s most consistent carer in my view has been the paternal grandmother. She has been involved in X’s care since birth and has offered her a secure, stable and safe environment. No criticisms have been raised regarding the care provided by the paternal grandparents. There was no evidence to suggest that X would not adjust to a further change in her living arrangements. There is no evidence to suggest that should X live with her paternal grandparents there is likely to be a change in her care arrangements.
I am concerned that X’s care arrangements will continue to be disrupted should she live primarily with her maternal family. There are two reasons for this. The maternal grandmother’s willingness to support her adult children and other family members by offering them accommodation in her home impacts on her grandchildren to the extent that some of these family members present as unacceptable role models for the children and in particular for X. Secondly the maternal grandmother has significant care responsibilities for her partner who is unwell, her 9 year old grandson who was recently involved in shop lifting and her grandson B who has a number of special needs according to her which require her support and the implementation of a treatment regime. To use her own expression she currently has “her hands full at present.” I find that the maternal grandmother is from time to time overwhelmed by her care responsibilities and the continued disruption to her life by family members. In my view it is in X’s best interests to spend the majority of time in the care of her paternal grandmother.
The capacity of the grandmothers’ to care for the child’s intellectual and emotional needs
X will not always be 6 years old. She needs encouragement and support to assist her to develop intellectually to the maximum extent possible. I have found that the maternal grandmother has not consistently supported and encouraged X to attend school nor has she actively participated in her schooling. X missed numerous school days while in the care of the maternal family. I do not accept the maternal grandmother’s evidence that getting the child to school was solely Ms Morrow’s responsibility. No concerns were raised regarding the paternal grandmother’s capacity in this regard. I accept that the paternal grandmother is child focused and will support and encourage X’s schooling and will participate regularly in school related activities.
I remain concerned about the maternal grandmother’s capacity to protect X and ensure she is safe from harm and to care for her emotionally. The maternal grandmother demonstrated very little insight into the impact on X in having her care arrangements disrupted. For example no regard was shown for X when the maternal grandmother relocated to (omitted). She said she saw very little of X during this period. She was aware that (omitted) was a particularly negative environment where violence, drugs and police attendance were regular features yet X was left in Ms Morrow’s care. This was in circumstances where the maternal grandmother was fully aware that Ms Morrow experienced mental health issues and could become violent. She appeared to lack insight into the damaging and negative influence of exposing the child to role models who engage in illicit drug use and criminal activity. I do not accept her evidence that when under the influence of marijuana this would have had no impact on ability to care for the child. I remain concerned that she and her partner risk eviction (and further disruption to X’s living arrangements) should they be caught using marijuana. I find that the maternal grandmother has only a limited capacity to care for X’s emotional needs.
(h) if the child is an Aboriginal child or a Torres Strait Islander child
I have addressed this issue at length in my judgment.
Family violence
I have addressed this issue throughout my judgment
(m) Benefit to the child of having a meaningful relationship with both parties
As indicated throughout this judgment both grandmothers have much to offer this child in different ways. I accept that the child will benefit from continuing to have a meaningful relationship with each of their grandmothers who will continue to share in her care. The child’s relationship with each of them is well established and will continue to grow and develop in the years to come.
Parental Responsibility
Under section 61B of the Act “parental responsibility” in relation to a child means all the duties, powers, responsibilities and authority which by law parents have in relation to children. Section 61C(1) of the Act provides that each of the parents of a child who is not 18 has parental responsibility for the child. Subsection 61C(3) provides that subsection (1) has effect subject to any order of a Court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Under section 61D(1) of the Act a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
The parties cannot communicate effectively in my view notwithstanding that both parties express a willingness to do so. The history of this matter demonstrates that to be the case. I have determined that it is in X’s best interests for the paternal grandmother to have sole parental responsibility for her, subject to the requirement that she consult with the maternal grandmother regarding any major long term decision. In circumstances where there is an impasse the paternal grandmother’s decision will prevail. That order is subject to the maternal grandmother having responsibility for ensuring X’s right to enjoy her Aboriginal culture and maintain a connection with her Aboriginal family and her community is met by the maternal grandmother. She is charged with this responsibility and is best suited to nurture and encourage her granddaughter in this regard. Regarding matters concerning the child’s identity as Aboriginal her decision will be determinative.
Conclusion
The comments by the Full Court in Backford (supra) are at the forefront of my mind in deciding this matter. I have taken into consideration the unique kinship obligations and child-rearing practices including the involvement of the extended Aboriginal family. I have weighed up all relevant considerations and place significant weight on the paternal grandmother’s ability to protect X from harm and keep her safe. I accept she has the capacity to ensure all X’s needs are met. I intend to make orders for the child to live with her paternal grandmother and spend time with her maternal grandmother each alternate week from Thursday to Monday and share school holiday time.
I certify that the preceding three hundred and fifty-four (354) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 16 August 2017
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