Dunstan and Jarrod and Anor
[2009] FamCA 480
•5 June 2009
FAMILY COURT OF AUSTRALIA
| DUNSTAN & JARROD AND ANOR | [2009] FamCA 480 |
| FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Whether presumption of equal shared parental responsibility applies to non-parent – Allocation of parental responsibility – Father to be solely responsible for matters of Aboriginal and tribal culture – FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time FAMILY LAW – CHILDREN – Aboriginality – “Competing” Aboriginal cultures – Aboriginal father and Aboriginal foster parents – Father, foster father and foster mother all from different tribes FAMILY LAW – JURISDICTION – Application of child welfare law – s 69ZK – Effect of consent of Department FAMILY LAW – EVIDENCE – Evidence from Aboriginal elders – Evidence of matters of cultural importance – Anthropological evidence FAMILY LAW – CHILDREN – CHILD’S NAME – Foster parents’ surname forming part of name – Indigenous and non-indigenous given names |
| Family Law Act 1975 (Cth) Family Law Regulations 1984 (Cth) The Child Protection Act 1999 (Qld) |
| AIF v AMS (1999) 199 CLR 160 B & R and the Separate Representative (1995) FLC 92-636 Carlson v Bowden (2009) 40 Fam LR 327 CDJ & VAJ (1998) 197 CLR 172 Goudge & Goudge (1984) FLC 91-534 In Re CP (1997) 21 Fam LR 486 Re Alex (2004) 31 Fam LR 503 Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 U v U (2002) 211 CLR 238 |
| APPLICANT: | Mr Dunstan |
| 1st RESPONDENTS: | Mr and Mrs Jarrod |
| 2nd RESPONDENT: | Ms Noble |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRF | 2363 | of | 2006 |
| DATE DELIVERED: | 5 June 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 11 & 12 May 2009 |
REPRESENTATION
| APPLICANT: | Appearing on his own behalf |
| COUNSEL FOR THE 1ST RESPONDENTS: | Ms Lyons |
| SOLICITOR FOR THE 1ST RESPONDENTS: | Forest Glen Lawyers Withcott |
| 2ND RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Brasch |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | Legal Aid Queensland |
Orders
IT IS ORDERED THAT
Mr Dunstan (referred to in these orders as “the father”) shall do all such things, sign all such documents and pay all such reasonable fees as might be necessary or required so as to ensure that the child born on … May, 2000 and currently registered as … JARROD (referred to in these orders as “the child”):
(a)hereafter be known as … JARROD-DUNSTAN; and
(b)be registered under that name by the Registrar of Births, Deaths and Marriages (Queensland).
So as to give effect to Order 1, the formal documents required to effect the said change of name shall be initially prepared and signed by the father within 21 days of the date of these Orders who shall forward same to the 1st Respondents, Mr and Mrs Jarrod (referred to in these orders as “the Jarrods”) who shall then each sign and otherwise do what is required of them by the said documents and thereafter forward them to the father within 14 days of receipt who shall, within 14 days after receipt, lodge same with the office of the Registrar of Births Deaths and Marriages.
NOTATION
Orders 1 and 2 are not intended to prevent, and should not be construed as preventing, the father or any members of his family from referring to the child, while she is with him and them, as “N”.
Except in relation to the child’s name and except as provided in Order 4 below, the father have sole parental responsibility in relation to decisions relating to the acquisition of knowledge about, and experience of, the child’s identity as a G Tribe girl, woman and person and all other aspects of that culture.
Except in relation to the child’s name and save as provided for in Order 3, the Jarrods shall have sole parental responsibility for all “major long term issues” (as that expression is defined in the Family Law Act 1975), in respect of the child, but prior to making the sole ultimate decision about the any of the issues over which they have, respectively, parental responsibility, they must:
(a)advise the father of the decision intended to be made;
(b)seek the father’s response in relation thereto;
(c)consider, by reference to the child’s best interests, any response from the father prior to making any such decision;
(d)advise the father of the ultimate decision made by them as soon as reasonably practicable after making it.
The child live with the Jarrods.
The father spend time with the child at all times as agreed between he and the Jarrods but otherwise as follows:-
(a)during school term, commencing 15 May 2009, on alternate weekends from 5pm Friday to 1pm Sunday, with the father to collect the child from the Jarrods’ home at the start of that period and the Jarrods to collect the child from the father’s home at the end of that period.
(b)for events of cultural significance to the child, EXCEPT “Sorry time”, on giving notice to the Jarrods as soon as the father becomes aware of events of cultural significance for the child, which notice shall include a description of the event, the duration of the event and where the event will be held with those events to include:-
i.the NAIDOC week, in July each year; and
ii.if the cultural event falls when the child would otherwise be at school, for a further 3 occasions in each school year, provided the child is not absent from school for more than 5 school days and provided further that no such event occurs during any exam times; and
iii.for “Sorry time” on giving the Jarrods at least 24 hours notice of the nature of the event; its duration; and where the event will take place.
(c)For Father’s Day each year from 5pm Friday to 1pm Sunday, with the father to collect the child from the Jarrods’ home at the start of the period and the Jarrods to collect the child from the father’s home at the end of the period;
(d)By telephone at all reasonable times with the father to telephone the child.
(e)During school holidays:-
i.for the first half of the EASTER school holidays in 2010 and alternate years thereafter and for the second half of the EASTER holidays in 2011 and alternate years thereafter; and
ii.for all of the JUNE/JULY school holidays in each year; and
iii.for the first half of the SEPTEMBER/OCTOBER school holidays in 2010 and alternate years thereafter and for the second half of the SEPTEMBER/OCTOBER holidays in 2009 and alternate years thereafter; and
iv.for the first four weeks of the DECEMBER/JANUARY school holidays commencing in December 2010 and alternate years thereafter and for the last four weeks of the DECEMBER/ JANUARY school holidays commencing in December 2009 and alternate years thereafter, provided the child is returned to the Jarrods by the Thursday before school returns to allow her to be prepared for the new school year and particularly for uniform fittings.
(f)That the father shall be at liberty to spend time with the child for periods of not more than Friday after school until Monday before school, should he be in the T area, on the giving of 7 days notice to the Jarrods of any such date and times.
(g)By telephone on other special days including but not limited to Christmas Day, Easter Day, the child’s birthday, the father’s birthday and the birthdays of any siblings of the child AND, with the Jarrods to have reciprocal telephone contact should the child not be with them on the happening of any of these events.
These orders authorise the child’s schools, after school care providers, extra-curricular activity providers and treating health professionals to discuss issues with respect to the child’s education, health and progress with the father and the Jarrods and to provide reports, documents and other information, including but not limited to school photos, to each party, at the cost of the requesting party.
Before enrolling the child in any sporting or other extra curricular activities which would affect the child spending time with either the Jarrods or the father, the party wishing to enrol the child in the activity will:-
(a)advise the other party of the activity, when it occurs and the frequency it occurs; and
(b)discuss with the other party the child’s participation in the event.
In the event that the child attends any sporting or other extra curricular activity, the party who has enrolled the child will keep the other informed as to when and where the activity will take place and the father and the Jarrods as the case may be are at liberty to attend the event.
The father and the Jarrods keep each other informed of any serious illness or injury the child might suffer whilst in their respective care.
The father and the Jarrods advise the other of any change to their home phone number, postal and residential address, where possible before that change occurring and within 24 hours after any change occurring.
The publication of these Orders is approved to any school that the child attends.
The publication of these Orders and the Court’s Reasons for Judgment be approved for publication to the Director-General of the Queensland Department of Communities – Child Protection (formerly known as the Department of Child Safety) and any officer of that Department that the Director-General might authorise.
IT IS NOTED that publication of this judgment under the pseudonym Dunstan & Jarrod and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF 2363 of 2006
| MR DUNSTAN |
Applicant Father
And
| MR AND MRS JARROD |
1st Respondents
And
| MS NOBLE |
2nd Respondent Mother
REASONS FOR JUDGMENT
Shortly after she was born in May 2000, the subject child was placed for adoption by her mother. Her mother, Ms Noble, apparently suffers from significant alcohol problems and has played no part in her life since that time. Her current whereabouts are unknown.
The mother told officers of the Department of Child Safety (as it was then called) that “she was not able to care for” the child. Efforts by the Department to address issues for the child altering that position “proved not to be possible”. On 7 June 2000 the child became the subject of a 28 day voluntary placement agreement between the Department, the mother and foster carers.
The mother continued to maintain to the Department that she was unable to care for the child, and, ultimately, the mother signed an adoption consent form on 18 July 2000.
The mother refused to provide the name of the child’s father to the Department. The child’s father, Mr Dunstan, is the applicant in these proceedings for parenting orders. The mother told the Department that the child’s father was “transient, unemployed and abused alcohol and that she did not want [the child] to have any association with him”. On 2 August 2000 the mother signed a statutory declaration stating that the child’s father was not a suitable carer for her.
Each of the statements made by the mother about Mr Dunstan are, and were then, false.
Even during a period of reconciliation between the father and the mother between approximately the end of 2000 and the beginning of 2001 (during which time the child’s sibling K was conceived) the mother concealed the child’s existence from the father.
Each of the mother and the father is Aboriginal. The Department sought to place the child with indigenous foster carers and, as a result, the child came into the care of Mr and Mrs Jarrod, the respondents to these parenting proceedings.
At this point, the child’s inauspicious start to life took a sudden and dramatic turn for the better. There is no dispute on the evidence, including from the father, that Mr and Mrs Jarrod have provided exemplary loving care for the child.
A process was put in place commencing in late 2000 which would have seen Mr and Mrs Jarrod adopting the child. For reasons not necessary to be discussed in the current proceedings, that adoption did not occur. I hasten to say that, for the purpose of these proceedings, there is no suggestion whatsoever that the process of adoption did not occur by reason of any failings or inadequacies on the part of Mr and Mrs Jarrod.
However, because the adoption did not proceed, the Department obtained a child protection order in respect of the child in the Queensland Magistrates Court pursuant to the provisions of The Child Protection Act 1999 (Qld) on 10 October 2000. That child protection order granted “long term guardianship of the child to [Mr and Mrs Jarrod]”.
In approximately May 2004 the father was informed by the mother – for the first time – of the child’s existence.
Thereafter, the father has sought to develop a relationship with the child by communication and negotiation both with the Department and with Mr and Mrs Jarrod.
Mr and Mrs Jarrod were apparently advised by the Department (acting on information provided initially by the mother) that the father was, in effect, a person to be feared. Mrs Jarrod gave evidence that, when she and her husband were to meet the father through the auspices of the Department, she was advised by them that she and her husband should not even be in the same room as him.
Again, this picture of the father is, and was then, on any view (including, importantly, the view of Mr and Mrs Jarrod) utterly false.
The circumstances just described led, almost inexorably one would think, to suspicion on the part of Mr and Mrs Jarrod about the father, and anger on the part of the father toward the Department and, initially at least, Mr and Mrs Jarrod.
To their great credit each of the father and Mr and Mrs Jarrod have developed their relationship despite these very difficult beginnings. More particularly, the father and Mr and Mrs Jarrod have developed their relationship in a way that can be seen (on the accounts of each of them) as being of very significant benefit to the child.
The mutual respect with which each is held in the eyes of the other parties was evident during the course of the proceedings. For example the father said, in ultimate submissions to the court that the child is “blessed to have been placed with [Mr and Mrs Jarrod]”. For her part Mrs Jarrod said in evidence, “I think [the child] is going to grow up to be a girl who [the father], [Mr Jarrod] and I are going to be very proud of”.
This mutual respect, and predominance of the best interests of the child, does each of the parties to this dispute significant credit.
As will emerge, the parties can each be seen as devoted, caring and loving people who are sincerely motivated to provide for the child’s best interests, including, predominantly, where those best interests might come into conflict with their own.
In that context, it is not surprising – and, as I find, to the child’s benefit – that the parties have been able to resolve many differences between them with respect to the child over the course of the last few years. Sadly, there remains between them a core issue of dispute. In terms of potential parenting orders, that dispute manifests itself as each of the parties seeking an order that the child live with them. So, too, in that event, there is a dispute about the quantity of time that the child may spend with the other party.
That such a dispute continues emanates, at least in significant part, from disagreement regarding the extent to which the child’s right to enjoy her Aboriginal culture, including her right to enjoy that culture with other people who share it, should impact upon her caring arrangements.
So too, that dispute can be seen to emanate in part from the potential for conflict between the child’s right to have her father play a meaningful role in her life (consistent with her best interests) and other considerations directly relevant to her best interests. Not the least of those is the nature of the relationship the child has with Mr and Mrs Jarrod and the likely effect of any changes to that relationship.
Can this court make orders?
A Non-Indigenous Judge and System of Law
The father made the point on two separate occasions that he did not consider that this court, which, in this case, has a non-indigenous judge presiding, and which, in any event, applies non-indigenous laws and predominantly non-indigenous cultural precepts, should be making a decision about the best interests of the child. He asserts that, central to the child’s best interests and, as a result, central to the case he makes out, are considerations which, he asserts, only indigenous people can properly understand or appreciate.
The father said in his submissions, “I don’t believe that white people should be making decisions about Aboriginal children – they don’t know how Aboriginal people think, how Aboriginal people grow up, their connections with the land” and a number of other matters directly relevant to the feelings, perceptions and attitudes of Aboriginal people.
I acknowledge that, firstly, I am a non-indigenous person. Secondly, I acknowledge that, as a result, there are many matters centrally important to Aboriginal people that, despite my best efforts to understand on an intellectual level, I may not appreciate (or perhaps, even come close to appreciating), in the same way that an Aboriginal person would.
However, the jurisdiction of this court has (as I will find) been properly invoked and my statutory responsibility is, relevantly, to do the best that I can to appreciate and understand the issues in the case and, in particular, those issues relating to the importance of the child’s Aboriginal culture.
To that end it is important to record that I am acutely conscious of what was said by the Full Court in B & R and the Separate Representative (1995) FLC 92-636. In particular, it is noted that evidence directly relevant to the importance of the child’s Aboriginal culture:-
“…raise[s] a relevant and potentially important issue [to the] determination of the best interests of [the child]. It adds a further dimension to the delicate and important task of the adjudication of disputes between [relevant parties] about the future custody of [the child]. The analysis by Evatt CJ in Goudge; … correctly states the position”.
The reference by the Full Court there to the earlier decision of the then Chief Justice is a reference to Her Honour’s decision in Goudge & Goudge (1984) FLC 91-534. The former Chief Justice said there (at 79,318-9):-
“It was put to us that [a distinctive lifestyle shared by many persons of Aboriginal descent] should be seen as part of the cultural identity of those who partake in it. While it was conceded that the case was not put to His Honour precisely in this manner, the evidence should not be considered in a vacuum. The Family Court can be presumed to have some awareness of the effects of the white settlement of Australia upon the Aboriginal community and the destruction of culture which resulted from that…
It is proper to conclude that the matters about which evidence was given to the court are not to be seen as the remnants of a vanishing culture which will be obliterated in time by a process of assimilation. On the contrary they are to be seen as important in regard to the sense of identity and development of these children, as part of their links to an Aboriginal culture and heritage which has come to them through their mother.
That is not to say that what the mother offers is to be preferred on that account. The difficulty in this, and in many other cases, is to determine what weight should be attached to such a factor in relation to the welfare of the children. That is the paramount consideration…
…many cases arising out of the Family Law Act involve children who have real connections under two different cultural, racial or religious backgrounds. The principal that emerges from such cases is that while neither culture is to be preferred over the other, both may be of importance to the child. As a result, the implications of any order and the continuing connection of the child with each culture need to be considered.”
Since that decision was given, the Act has been amended on more than one occasion. Most recently, many of the factors there referred to (and referred to in the later Full Court decision in B & R and the Separate Representative (1995) FLC 92-636) have been legislatively enshrined in the terms of s 60CC (3)(h).
That section provides that the court must take into account as one of the many considerations relevant to determining a child’s best interests:
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
In this case, in order to take account of precisely those sorts of considerations (even within the limitations asserted by the father to be inherent in a decision by a non-indigenous judge within a non-indigenous system of law) the court sought, and through the agency of the family consultant Mr H, obtained, reports from a number of Aboriginal people, including a number of elders.
Each of the parties was asked to provide to the family consultant, Mr H, the names of people, including elders, who each considered would have important things to say to the court directly relevant to the issues just described.
Consultations by Mr H occurred with each of those people. Those people were consulted by Mr H in D (the area in which the father is living); T (where Mr and Mrs Jarrod and the child have been living) and at C and Brisbane. The results of those consultations are recorded in Mr H’s second family report dated 20 November 2008. I have read each of them and considered them carefully.
In addition Mr H refers to an article from Stephen Ralph, an indigenous man, and formerly a consultant to this court writing in the Australian Journal of Family Law. At the hearing, I asked the parties whether they each wanted me to accept what Mr Ralph there had to say as evidence in these proceedings, and each indicated that they did.
In a similar vein, Mr H referred to “anthropological” evidence cited in the decision of the Full Court In Re CP (1997) 21 Fam LR 486, which, again, the parties wished me to accept as evidence in these proceedings. (See generally in each respect s 69ZN, particularly s 69ZN(7) and s 69ZT(1),(2) and s 69ZX(1).
Child welfare law
The order made in the State Magistrates Court in 2000 remained operative at the time of the hearing. This resulted in argument about the jurisdiction of this court to make orders.
Subsequent to the conclusion of the trial, the parties, advised that the Magistrates Court had (with the consent of the parties and Department) revoked the child welfare order on 29 May 2009. Nevertheless, I consider that I should record the arguments raised at the trial and my findings in respect of them.
I permitted evidence to be given from the bar table by the solicitor for Mr and Mrs Jarrod to the effect that a subsequent mention of the matter before the Magistrates Court in 2005 resulted in the Magistrate not disturbing the earlier order. But, at the same time, that court indicated that proceedings with respect to the best interests of the child were better dealt with by this court.
There was, at the hearing, little doubt that the position of the Department (and the state court) was to the effect that parenting orders should be determined by this court.
The affidavit of Mr Ward filed in the Independent Children’s Lawyer’s case specifically deposes to a recommendation by a relevant departmental officer (Mr B) that “the matter of [the child’s] custody guardianship and care arrangements be moved as quickly as possible into the Family Court arena where fuller assessment of her best interests can be accomplished and a final determination made…”.
That affidavit further deposes to the “professional determination” of Mr B that “[the child] is no longer a child in need of protection as defined in the Child Protection Act 1999…”.
That same affidavit contains a recommendation that the child protection order granting guardianship of the child to Mr and Mrs Jarrod pursuant to s 65(6) of the Child Protection Act 1999 be revoked.
Section 69ZK of the Act provides:-
Child welfare laws not affected
(1)A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:
(a)the order is expressed to come into effect when the child ceases to be under that care; or
(b) the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.
(2)Nothing in this Act, and no decree under this Act, affects:
(a)the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or
(b)any such order made or action taken; or
(c)the operation of a child welfare law in relation to a child.
(3)If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first‑mentioned court may adjourn any proceedings before it that relate to the child.
There was no evidence before me, within the terms of s 69ZK(3) to suggest that any other court or authority proposes to make an order or take any action in respect of the child. In fact, the evidence clearly points to the contrary.
The order of the Magistrates court remained on foot at the time of the hearing. It is an order made under the Child Protection Act 1999 (Qld). This is a “child welfare law” within the meaning of s 69ZK. (See s 4 Family Law Act; Reg 12B(2); Schedule 5 Family Law Regulations 1984). The child was clearly under the care of the Jarrods within the meaning of s 69ZK.
Exhibit “ICL4” shows the Director-General of the Department approving a recommendation that the Department consent to the continuation of the proceedings. I consider there was sufficient evidence of the requisite s 69 ZK(1)(b) consent.
Submissions made by counsel for the Independent Children’s Lawyer were to the effect that, notwithstanding the obtaining of the required written consent, the provisions of s 69ZK(2) nevertheless provided a jurisdictional impediment to the making of parenting orders.
In light of that submission, the attitude of each of the parties was ascertained with respect to them jointly applying to the State Magistrates Court for revocation of the child protection order made by that court. Each of the parties readily indicated that they wished to do so and desired that outcome. As indicated earlier, that has now been obtained.
Prior to that event, draft orders submitted by counsel for the Independent Children’s Lawyer, (and essentially adopted by counsel for Mr and Mrs Jarrod) proposed a form of order whereby the orders came into effect upon the revocation of the child protection order made by the state Court. By that method, the jurisdictional difficulty was, it was submitted, overcome by reference to s 69ZK(1)(a).
Even if the State Magistrates Court had not revoked the order, and notwithstanding the methodology just referred to, I would nevertheless have considered it appropriate to record my findings with respect to jurisdiction. A court ought to itself be satisfied about its jurisdiction and the limits to it. (See eg Re Alex (2004) 31 Fam LR 503 at para [144]).
I am not, with respect, convinced that the submission made by counsel for the Independent Children’s Lawyer as to the effect of s 69ZK is correct.
Professor Dickey QC in Family Law, Thompson, 5th Edition at 276 says:-
“Section 69ZK(1) is complemented by subs (2). This preserves the ability of State and Territorial courts to make orders in respect of the care of a child pursuant to child welfare laws. Such an order can be made in relation to any child, including a child who is the subject of a parenting order made under the Family Law Act. The State or Territorial order then prevails over the Commonwealth order for so long as it remains in force.” [Footnotes omitted].
In Re Alex, above, the former Chief Justice held:-
[7] “Alex is under the legal guardianship of the government department (the applicant) as a consequence of a currently operative care order made by a Children’s Court under a child welfare law. The present application was brought by the applicant with the written consent of a child welfare officer as defined by s 60 of the Act. With such written consent, there is no doubt that Alex can be the subject of an order by this court while in care: see s 69ZK of the Act…
[151] As I have mentioned, the applicant’s guardianship responsibility for Alex is immaterial to the court’s jurisdiction due to the written consent of a specified child welfare officer…” [emphasis added]
In my view, the consent of the Director-General of the Department in this case provides jurisdiction to the court to make parenting orders in respect of the child.
The effect of s 69ZK(2) is, in my view, to preserve the capacity of the relevant state child welfare authorities to bring applications, and/or take action under the relevant state legislation, notwithstanding the making of an order by this court. That is, orders of this court, which the consent of the Department allows to be made, cannot be seen as excluding the capacity of the state welfare authorities to take action and/or the state courts to make orders under that state legislation.
I do not consider that s 69ZK(2) means that, notwithstanding the consent referred to in ss (1) of that section, the jurisdiction of the court is excluded in circumstances where there is an existing order. Such an interpretation would, in my view, make a nonsense of s 69ZK(1)(b).
I should add, particularly as the father represents himself, that the comments made above with respect to the capacity of the state child welfare authorities to take action or make orders does not in any way suggest that they should or would in this case.
I should clearly indicate that the evidence before me indicates that nothing whatsoever seen or heard by this court during the course of these proceedings would suggest that there is any basis at all for the intervention of those State authorities, nor is there the slightest evidence to suggest that the child is in need of care or protection as that expression is understood in the State legislation.
These reasons make clear my view that the parenting orders would have applied irrespective of whether that child protection order was revoked or not.
I will order that my reasons for judgment and orders be approved for publication to the Director-General of the Department of Communities (Child Safety Services) and such officers of that Department as the Director-General might decide.
I turn to consider another issue raised directly by the facts of this case.
Parents and parental responsibility
The thrust of the submissions made by the Independent Children’s Lawyer and Mr and Mrs Jarrod is to suggest allocation of parental responsibility between the Jarrods and the father. I took the father to be seeking an order that he have, in effect, sole parental responsibility (although he was at pains to point out that he considers the input of the Jarrods to decisions about the child to be important).
An issue is raised about the nature of “parental responsibility” as that term is defined and understood in the Family Law Act, particularly as it concerns the allocation of parental responsibility between people, some of whom are not “parents”.
In that context, I repeat that, although the child has lived with the Jarrods since very shortly after birth, and although some steps were initially taken for her to be formerly adopted by them, she has not been formally adopted. As a result, they are not her “parents” within the meaning of the Act (See the definition in s 4). Mr Dunstan is the child’s “parent” as that term is understood in the Family Law Act (as is the child’s mother who has absented herself from the child’s life).
I addressed the issue of non-parents and parental responsibility in a decision reported as Carlson v Bowden (2009) 40 Fam LR 327 to which counsel for the Independent Children’s Lawyer referred. Because the father represents himself I think it is important that I set out my earlier reasoning with respect to this issue in these reasons so as to avoid the necessity for the father to refer to a decision other than this one.
Parental responsibility is defined in the Act to mean “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Save for the court orders, each of the father and mother has parental responsibility for the child. A parenting order does not derogate from that save as is expressly ordered.
But, the Act requires something that appears, at least in terms, different: the rebuttable presumption in that situation is that the parents have “equal shared parental responsibility”. That phrase is not separately defined. Here, the question arises as to whether the presumption should be applied in proceedings between a parent and non-parents.
Not only is the phrase “equal shared parental responsibility” not defined in the Act, it might be thought to involve a concept different to that which guides the practicalities of co-parenting of children in either intact families or in arrangements where high levels of co-operation, respect and agreement attend consensual post-separation co-parenting arrangements.
In those situations, there can be little doubt that, appropriately, parents share parental responsibility (as defined). Yet, common experience shows that parental responsibility (or, at least, aspects of it, for example, responsibilities and duties) is - for a variety of reasons, some born of necessity, others not - by no means always, or even frequently, shared equally.
The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those sharing parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
Equally, though, an order for “sole parental responsibility” in favour of a party means, as it seems to me, that the other party has no rights, responsibilities and authority in respect of “major long term issues” for the children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAE(1)).
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for a child - particularly when, as here, the child is young – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
There is no doubt that the exercise of that discretion ought to be resolved in favour of an outcome which is seen to be in the best interests of the child. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration, nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
At first blush the Family Law Act would appear to not require the application of the presumption when non-parents and parents were seeking competing parenting orders. Further, it would appear the Act gives no powers to make an order for non-parents to receive the benefit of an order sharing parental responsibility equally.
First, s 61DA – the section containing the presumption - speaks only of “parents” having equal shared parental responsibility. The power to make parenting orders (s 65D) is made subject to s 61DA. And, s 65DAA, which mandates the consideration of equal time upon the application of the presumption, applies when an order provides that “the child’s parents” are to have equal shared parental responsibility.
But, the picture is not that simple. Section 64B defines parenting orders to include orders whereby the court allocates parental responsibility. Section 64B(2)(d) contemplates, in terms, the possibility of “two or more” people sharing parental responsibility and also refers to “persons” sharing parental responsibility (as distinct from parents).
Further, an application for a “parenting order” which, by definition, can include an application for an order for parental responsibility by “two or more persons”, can be made not only by a parent, but by any person concerned with the care, welfare and development of the child” (s 65C) and can be made in favour of a parent or “some other person”.
The position is, then, it seems to me, that an order allocating parental responsibility can be applied for by a non-parent concerned in the care welfare and development of the child and an order can be made between two or more persons including persons who are not parents. However, the presumption of equal shared parental responsibility applies only as between parents.
Further, where an applicant, or applicants, other than the parents apply for a parenting order allocating parental responsibility, the presumption would (unless rebutted) operate such that it would be presumed that the parents would have equal shared parental responsibility to the exclusion of the non-parents.
Expressed another way, the presumption that the parents share parental responsibility equally would need to be rebutted by reference to the matters enumerated in s 61DA(2) or (4) before an order allocating parental responsibility to non-parents could be made.
It seems to me, then, to be erroneous to seek an order that a number of persons which includes one or more non-parents, have “equal shared parental responsibility”.
Equally, though, it would be open for any party to argue that s 61DA(2) or (4) applied so as to rebut the presumption of equal shared parental responsibility, and to then contend for an order that parental responsibility be allocated equally between the parties.
Whilst that might seem to be sophistry, it seems to me that this is what the application of the Act requires.
Here, I have no difficulty in concluding that the presumption of equal shared parental responsibility (as between the child’s mother and father) is rebutted by reference to the child’s best interests. Her mother gave her up for adoption, she admitted she could not care for her and has shown little, if any, interest in her since.
The question in this case is, then, to what extent should parental responsibility – or aspects of parental responsibility – be allocated as between the father and Mr and Mrs Jarrod. That issue, too, is to be determined by reference to the child’s best interests and raises important questions, not the least of which is the importance to her of her right to her cultural identity.
What is the Role of Best Interests?
The Act mandates the consideration of specified matters in ascertaining the child’s best interests.
As the Act reminds the Court more than once, (eg s 60CA; s 65AA), findings as to best interests are at the heart of the decision and the task is to arrive at orders which best promote the best interests of this particular child in her particular circumstances.
That findings as to best interests lie at the heart of every parenting decision is reinforced by the Act providing that those findings are the servant of many masters within the Act, including masters that can be seen as central to Part VII. Indeed, a central component of the Part - the statutory presumption of equal shared parental responsibility - is, ultimately, governed (in part) by an exception based on findings as to best interests.
Ultimate findings about best interests specific to the case before the court rest on a fact-finding exercise performed within a mandatory statutory framework. In particular, the Act prescribes the means by which best interests are to be determined; the heading to s 60CC is “How a court determines what is in a child’s best interests”. Clearly enough, that section, together with complementary provisions of the Act, including the Part’s Objects and Principles, are each central to the court’s role and the orders made by it.
It is, in my view, important to bear in mind that the Act’s mandatory considerations (s 60CC) are, like their predecessor (s 68F(2)), not objective standards. (See, eg. Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 at 270-2).
The s 60CC considerations are signposts or touchstones within which the broad enquiry as to best interests must be conducted. That the enquiry remains a broad one is evident from the section itself (s 60CC(3)(m)).
Furthermore, ascertaining best interests by reference to those mandatory signposts and that broad enquiry must embrace the fact that: “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require … [b]est interests are values, not facts” (CDJ & VAJ (1998) 197 CLR 172 at 219).
In my view, then, it is necessary to commence the application of the statutory process by examining, and making findings about, the issues specific to the best interests of this child arising from the proposals for her care put forward by the parties (or, subject to procedural fairness, any alternative proposal which the court considers better meets her best interests – see U v U (2002) 211 CLR 238). Those findings can then be used to inform the statutory requirements.
The Child’s Best Interests – Central Findings
The intelligent and child-centred approach adopted, predominantly, by all of the people important in the child’s life, allows a number of central findings to be made about her best interests. In making those findings, I rely not only upon the evidence of the parties and my observations of them in the witness box and otherwise during the proceedings, but also the helpful evidence contained in the three reports provided by the family consultant, Mr H.
Specifically, I agree with the following opinions expressed by Mr H in his most recent report dated 20 April 2009:
“22. Although [the father] has a very different parenting style to that of Mr and Mrs [Jarrod] he is aware of and is sensitive to [the child’s] emotional needs and aware [what] he will need to do to assist her to cope should there be a change in whom she lives with. As he is often busy with work, much of this will need to be carried out by [his partner] Ms [A], who takes responsibility for much of the day to day care of the children [in] his household.
23. Ms [A] is an experienced parent, has a good relationship with [the child] and a good understanding of her emotional needs. She and [the father] have clearly discussed what would be necessary to assist [the child] to cope and have plans such as encouraging her to develop a social network in [D], maintaining a relationship with Mr and Mrs [Jarrod] and involving her in cultural activities. Ms [A] is a [G Tribe] woman is so will be able to herself impart knowledge and cultural understandings to [the child].
…
32. Overall Mr and Mrs [Jarrod] remain committed to [the child] living with them as they feel she is now part of their family, and that [the child] needs to stay with them for her emotional needs. Whilst they put some emphasis on [the child’s] wishes they accept she is not old enough to make the decision herself…”.
I have already observed, and specifically find, that all three parties have a genuine commitment to the child’s best interests and all three are likely to provide her with appropriate, loving care.
Those broad findings form the foundation of a number of findings specific to the statutory considerations which I also make by reference to the whole of the evidence before me:
§ There is benefit to the child in having a meaningful relationship with her only available parent, her father;
§ Issues of abuse do not arise in this case;
§ The child has a secure, attached relationship with Mr and Mrs Jarrod. Mrs Jarrod has represented her “mother figure” for the whole of her life and has fulfilled that role properly and well. The child loves her and is closely bonded to her. The child loves, and is closely bonded to, Mr Jarrod;
§ By reason of the efforts of the parties, the child has developed a close attachment to the father and to his partner Ms A. The child’s father loves her and she him. She is closely attached to him;
§ Each of the father (and his partner Ms A) and Mr and Mrs Jarrod are willing to facilitate and encourage a close relationship with the other. Indeed, the evidence is clearly to the effect that they have increasingly done so over time after a very difficult beginning and some difficult times since. I also note in that respect that this has been done despite an hour’s driving time separating the two households;
§ I am satisfied that, whatever orders provide in respect of where the child is to live, that those in her residential placement will continue to foster into the future, a relationship with the other people important to the child.
§ I have no doubts that the father and Ms A on the one hand, and Mr and Mrs Jarrod on the other, each have the capacity to provide for the child’s physical, emotional and intellectual needs into the future. I note, though, that, the father’s work commitments necessitate being away from home for periods of time. Ms A would assume a significant role in the child’s day to day caregiving;
§ It will be clear that I have no reservations about “the attitude to the child and the responsibilities of parenthood” demonstrated by each of the father and Mr and Mrs Jarrod. In that context, I should also mention that the facts earlier outlined indicate that I have had in mind the requirements of s 60CC(4) and (4A) and, specifically in respect of those sub-sections, have found no failings in the parties” fulfilment of their parental responsibilities .
The Effect of Change
What is clear, and of significant concern, is that a change into the residential care of the father (and Ms A) will involve a significant change to the erstwhile living arrangements of a nine-year-old girl. Those current living arrangements provide a happy, secure and loving home.
The child will need to change towns (T to D); she will need to change schools, she will need to make new friends. Whilst it may not be possible to say that the parenting style of the father and Ms A is “better” or “worse” than Mr and Mrs Jarrod, the two parenting styles are, nevertheless, different and, as a result, will require an adjustment for the child.
The child’s current residential placement involves living as an only child. (Mr and Mrs Jarrod’s adult son is independent, lives in Brisbane and spends some weekends at their home. Mrs Jarrod’s sister lives with the family).
If her residential placement is to change, she will move from that household to a household which she will share with Ms A’s two sons (aged 13 and 12); her brother K (aged 7) and the father’s adult brother, who suffered a head injury some years ago. The father’s brother is able to care for his own daily needs, but the father assists with his finances and other such aspects of his life.
I consider this issue of change and the attachment to Mr and Mrs Jarrod, which I assess as, currently, stronger than that to the father (and Ms A), are each extremely important pointers to orders which best meet the child’s best interests.
The Child’s Views
The child’s voice needs to be heard in these proceedings. Her voice is, though, that of a still young child. Her views need to be measured against her age and level of maturity.
They also need to be measured against the fact that the legislature changed the relevant consideration (previously “factor”) from the pre-Reform Act “wishes” to the current “views”. I consider the latter concept to be a broader one than the former. Not only does it indicate that a child’s wishes ought not necessarily be determinative of orders found to be in his or her best interests (although the former concept did not, in any event, mean that), it is also indicative that what a child says might be indicative or instructive of the workings of the child’s emotional or “inner” life.
The child is almost nine. She is, as her school reports show, a bright and articulate child. Mr H described her (in October, 2007) thus: “[the child] is an intelligent, confident and outgoing child who readily related to new people and adapts to circumstances she is in … she also demonstrated an independent, if not slightly defiant or stubborn attitude on occasions”.
There has been, in the approximate 18-month time frame spanning Mr H’s three reports, a change not only in the views that the child has expressed but also in the manner in which she has expressed those views and in her emotional demeanour, or resilience.
In his report dated 17 October 2007, Mr H records, in respect of the then 7½-year-old child:
“53. [The child] is aware that there is an issue as to where she lives. She was unable to discuss this, however, as raising this with her caused her to be quite distressed. She described herself as dealing with this distress by distracting herself with activities and thoughts of more positive things.
54.Her reactions to the topic of where she lives and the possibility of living in [D] with her father were such that I assess that it is [the child’s] strong desire to continue to live with Mr and Mrs [Jarrod]. She did express the view that she is happy to visit and stay with [the father] and his family.”
It is important to record the changes heard and observed some 18 months later by Mr H in the preparation of his report dated 20 April 2009. Mr H there reports of the nearly 9-year-old child:
“33.[The child] has been interviewed and observed by myself on five occasions since July 2007. In that time [the child] has grown and matured significantly, and is a bright, outgoing, confident and secure child. Whilst generally well behaved and co-operative, she also has a very determined and stubborn streak …
34.While in earlier assessments of [the child] she has tended towards trying to please adults there are early signs of her becoming more independent, and at times defiant. When interviewed in October 2008 [the child] expressed some clear anger at Mr and Mrs [Jarrod] about how she perceived them to worry too much when she went to [the father’s] place …
…
36.When most recently interviewed, [the child] talked happily about her family, both the [T] and [D] parts of her family. She is aware that there are issues about where she lives and how much time she spends [with] each part of her family. [The child] described her experience of living with Mr and Mrs [Jarrod] and visiting her father and brother in very realistic terms, and in a manner that indicated she was talking from her own experience and after giving the matter some thought.
37.In response to a question about her thoughts on where she would live [the child] responded: “I would say that I have everything I want in [T] [with the Jarrods] and I don’t want to change schools”. [The child] described how she does enjoy her time with [the father] and his family but that “At the start of the weekend, I don’t want to go as I miss Mum and Dad, and [K] is mean, and the boys swear sometimes. But if I do a few things it’s okay,
…
39.[The child] said that it is her preference that things stay much as they are now, with her living in [T] and visiting [D] on weekends and part of the school holidays. I asked [the child] how she would feel if it was decided to change where she lived, to her living in [D] and visiting [T]. [The child] responded, in a matter of fact manner. “I’d just go with what the adults said”.
40.… Whilst [the child] clearly has a preference for the status quo she is able to understand and accept that this might change. It indicates that although she would be upset and saddened by a decision to change her living arrangements she would most likely cope with this change without undue trauma or distress.”
In the witness box, Mrs Jarrod recognised, in what I consider to be an insightful, and poignant, manner that, as the child grows older, she may well express a desire – including a strong desire – to live with her father.
Mrs Jarrod said that, in that event, she would respect the child’s wishes and act in accordance with them. Her answers reflected, it seemed to me, a recognition not only of the importance of the child’s views, particularly as she matures, but also a recognition that any such future wish on the child’s part might reflect her growing awareness of herself as a G Tribe woman.
I have no reason to doubt either the honesty or the sincerity of Mrs Jarrod’s evidence.
Whilst accepting that no one can predict the future, I consider it extremely likely that Mr and Mrs Jarrod will act in accordance with considered and mature wishes expressed by the child – and particularly so if they are a reflection of her emerging identity as a G Tribe woman.
An Overall Picture
Pending the child reaching that point - at some unpredictable time in the future - there are, I find, powerful reasons pointing to the child’s residential placement remaining with Mr and Mrs Jarrod.
She is firmly attached to them and identifies with them as her primary loved objects. She is happy and secure in her current placement. Her current views indicate a desire to stay where she is.
There are significant changes inherent in any move to her father’s household and an entirely different dynamic within it which may be productive of issues not yet apparent during her erstwhile (non-school week) time there.
Those findings and conclusions, though, are not the end of the enquiry and, in fact, only serve to highlight the acute questions forming the balance of the matters making up a picture of the child’s best interests.
The Child’s Right to Her Aboriginal - And Her G Tribe - Culture
It is fundamental in applying this important statutory consideration to attempt to understand (albeit as a non-indigenous person within a non-indigenous system of law) the nature, intensity and depth of the central components of this issue.
I again note that, centrally, the father asserts that the exercise about to be embarked upon is, in fact, an exercise not capable of being undertaken by a non-indigenous person by reason of a non-indigenous person’s incapacity to understand - on an intuitive, or emotional, or spiritual level – matters that are central to the identification of an Aboriginal person with matters central to their culture.
I reiterate that I have carefully considered the opinions expressed by all of the Aboriginal people whom Mr H consulted for the purposes of his second report (and Ms J who he refers to in his most recent report and to whose opinions reference will be made later).
I do not consider that any one opinion is “more important” than another. Nor do I have any reason to doubt the honesty and integrity of the opinions expressed by each of those people despite many being known to, or connected with, each of the parties.
Where excerpts are quoted in these reasons from any of those consulted, it is because those excerpts have particular resonance for me in arriving at my ultimate findings and decision.
Whilst parenting orders made by courts are, almost invariably, expressed as defining periods of time between parties (usually parents), such a paradigm involves immediately a difficulty for the context under discussion. For example Mr H quotes Ms S from C as follows:-
“19.Ms [S] described the means by which [the child] would need to learn these things as by spending time with her father and his people, and that the learning happens casually and incidentally to spending time with them. The time needed was “enough time to hear all the stories of the elders”.
20.[The child] could only learn these things from her father and his extended family. While she said Mr and Mrs [Jarrod] could not teach her these things they could encourage her to learn them and could be with her, if Mr and Mrs [Jarrod] were willing to be with [the child] when she travels to visit her family in [the southern Queensland coast area].”
Mr I grew up at C and is a tribal elder. Mr H described Mr I telling him something which had particular resonance for me in the context of the issues in this case:-
“65.Mr [I] described how urban Aboriginal children need to have enough connection with their culture to be able, when a teenager or adult, to readily choose to “live black” when they needed to despite living in mainstream society and needing to “live white” much of the time (within a mainstream school for example).
66. Being able to “live black” involves having a cultural knowledge, skills and experience that lead to the Aboriginal person having the confidence to be able to instinctively behave according to Aboriginal cultural rules, and to speak enough language (or speak in an Aboriginal manner) when needed and when interacting with other Aboriginal people.
67.In order to do this Mr [I] thought that [the child] would need to primarily live with her father and spend the equivalent of at least one year with family in [the southern Queensland coast area] between now and when she is an adult.
68.He describes the process of the child developing culture knowledge and a connection to their culture as being one the child must be comfortable with and be willing to do. He said that cultural learning arises out of incidental learning by living with and spending time with family members. He described that the [earlier] this starts for a child the better and the wider the circle of family members she learns from the better.”
Whilst delineation of periods of time varied in the opinions quoted by Mr H, there was, nevertheless, commonality that there needed to be sufficient time to allow the child to absorb her G Tribe culture.
I use the word “absorb” because there was, too, commonality that this learning was not didactic or structured but, rather, “osmotic” – by which I mean it accretes experientially from the child’s environment as well as from specific stories or specific “instruction”.
In addition, there appears to be commonality among all opinions that the child would need an interest in, and willingness to participate in, culture or to learn it. Mr H comments: “Many of those consulted also emphasise that cultural learning can only happen within the context of a positive relationship between the child and those she is with”.
An interesting and difficult component of the non-indigenous attempt to understand the nature and structure of this factor for an Aboriginal person can be seen in how concepts familiar to the mandatory statutory considerations can be seen to “clash” with (or at least be markedly different to) non-indigenous perceptions of the same concepts. Two examples illustrate the point.
First, it will be recalled that I have found that the child enjoys a strong emotional attachment to both her father and Mr and Mrs Jarrod. I have also found, though, that, primarily by reason of Mr and Mrs Jarrod being the child’s primary loved objects through the whole of her life so far, her attachment to them is particularly strong and that attachment is a significant factor in finding that the change for the child from their care into the father’s care may not be in the child’s best interests.
However, Mr H quotes Steven Ralph in two passages accepted by the father and not challenged by Mr and Mrs Jarrod, as accurate from an Aboriginal point of view. Mr H quotes Mr Ralph as follows:-
“128. In an [article entitled “The Best Interests of the Aboriginal Child in Family Law Proceedings (1998) 12 Australian Journal of Family Law 2] Mr Ralph says:
‘Family assessment as employed generally by counsellors is steeped in the traditions of western psychology, with its emphasis upon the individual and based upon modern Anglo-European notions of social and family organisations. The prominence of psychological theory and clinical practice based upon the study of small family groups and individual needs runs counter, however, to an effective understanding of the collectivist nature of Aboriginal family life.’
129.Mr Ralph goes on to say,
‘In contrast to the counsellor’s view Aboriginal people are likely to argue that children have the ability to effectively attach themselves to many carers in the course of their “growing up”. In many indigenous cultures multiple, serial attachments are the norm and are not regarded as necessarily harmful to the child’s development and long term adjustment.’
130.And,
‘The Aboriginal perspective is based upon a collectivist view of family and social life that sees responsibility for the growing up of children invested in many people. According to this view children come to trust in the capacity and commitment of a multitude of people to care for them and nurture them through childhood and into adulthood.’
131.And further,
‘From this perspective disruption caused to a child’s primary attachment, for example, is outweighed by the benefits arising from the child’s exposure to a broader and deeper network of family and kin to whom the child will eventually form strong attachments. The implicit expectation is that children will grow up with a maximum exposure to their cultural heritage and take their place within Aboriginal society.’ ”
The second example relates to the child’s views, which have also been discussed earlier.
These views - required to be taken into account, where relevant, by s 60CC - may also have a specific component directly related to the child’s Aboriginal heritage. For example in his most recent report Mr H says:-
“71.[The child’s] wishes are important to the extent that the opinion of those Aboriginal people consulted was that for cultural learning to be effective for children there needs to be a willingness and openness to it in the child. It cannot be against the will of the child.”
How Does The Father’s Case Express this Consideration?
The two central planks of the father’s case can be expressed relatively simply. The child is his blood. Blessed though she has been to be placed with Mr and Mrs Jarrod, she needs to be with, and nurtured by, her blood.
Secondly, and related to that, living with him will provide the space for the child to gather the knowledge and experience of her culture – specifically the G Tribe culture – which is necessary, not only for her right to enjoy that culture and to experience it with people who share the culture, but which is essential for her appropriate development as an Aboriginal person and woman.
Whilst expressed simply, each of the two propositions involve an intersection of a number of considerations mandated as relevant to a determination of the child’s best interests. Some of those intersections are exemplified in the examples just given. Further issues also emerge.
It should be observed that this is not a case involving the need for the child’s cultural identification with her father on one hand and, on the other, the desire by non-indigenous Australians to raise the child. Having said that, in submissions, the father said, with particular reference to the issue of whether the child should be removed from school to attend significant cultural events, that Mr and Mrs Jarrod had “different ideas to me”; “these things are part of learning to me – I don’t say that school is not important but these things are part of [the child’s] culture”.
The G Tribe people identify their country as including an area along the southern Queensland coast. Many members of the father’s family currently live in that area. He himself has lived in D, an inland town, for about ten years where he runs his own business. He also indicated in evidence that he does some work in the tourism industry.
There is no doubt that the father’s tribal culture and all that it implies (including the importance of country and family relationships) are a centrally important part of his life. Equally, there is no doubt that the father seeks to inculcate in other Aboriginal people the importance of their culture. As but one example, Mr H reports that he “assists Aboriginal youths by having small groups of Aboriginal teenage boys from [T] visit […] and learn about making boomerangs”.
Mr Jarrod is of the Y Tribe. His tribal group come from the inland southern Queensland area. He told Mr H that most of his family now live around the T area. Mrs Jarrod told Mr H that she belonged to the M Tribe whose country is in the southwest of Queensland. Her family now also live in the T area.
Mr and Mrs Jarrod each say, and I have no doubt, that they accept the importance of the child not only appropriately enjoying her Aboriginal culture but, specifically, her G Tribe culture. They indicate specifically that they accept that it is for the father to teach her the beliefs, signs and totems of his tribal group. They also accept that is it appropriate for her to identify with, and enjoy, her G Tribe culture.
It is important, I think, to distinguish the father’s emphasis of the importance of the child being “his blood” from a statement intended to reflect that his rights ought to predominate over the child’s. The father’s meaning and intention is, I think, best exemplified by statements made by Ms J in Mr H’s most recent report.
Ms J is an elder of the G Tribe people and is the father’s aunt. She does not know the child. Ms J explained to Mr H (and this was not challenged by Mr and Mrs J during the course of the hearing) that
“…in [G Tribe] culture, unlike any other indigenous groups, …land and culture are passed from father to daughter and from mother to son across generations and genders”.
Secondly, in terms of attempting to understand the father’s statement about the child being “his blood”, I consider it important to refer to evidence from Ms J recorded by Mr H that:-
“53.Ms [J] very strongly confirmed that [the child] would therefore always be accepted by [G Tribe] people, as she was [the father’s] daughter.
54.Ms [J] also stated that within [G Tribe] culture there was no concept of adoption outside of the family, saying “our people never give kids away, in our time it would not happen”. She explained that, as in the case of [the father] himself, if a parent was not able to care for the child that their family members would do so, in a flexible and open arrangement.
55.Ms [J] described how for [the child] to have a connection with her culture, [the father] needs to bring her back to her land, for her to learn about her land, its boundaries and significant places, to learn of and eat traditional foods, to know her kin relationships and for her to learn the stories of her people. She said that at her age [the child] should have been told, by both her father and Mr and Mrs [Jarrod], that she is [G Tribe] and for her to have been told of her totem. She said “[the father] needs to take her back to her country and tell her who she is”.
56.Ms [J] did not specify how much time she thought [the child] would need to spend in her country, with her relatives or with [the father], in order to develop a strong connection to her culture. She did emphasise that it would be important for [the child] to attend family social gatherings, formal and informal, as it was at these gatherings that much of the cultural learning took place. She did say that once a strong connection was established for [the child] that visits in school holidays, and other special occasions, would be enough to maintain the connection.”
A matter that (among others) emerged as important specifically, both in what emerged from the father but also from the interviews with the Aboriginal people interviewed by Mr H, is the importance of NAIDOC week.
For example, Mr U who lives in C told Mr H that “…[the child] would need to spend NAIDOC week with her father or [G Tribe] people”, and added “…others may think they can do this but they cannot”.
The father’s sister provides, as the father was at pains to emphasise in parts of his evidence and submissions, an important perspective. The sister was removed from her mother’s care as a young child and raised by white foster parents. She had no contact with her Aboriginal family and grew up with no connection to her Aboriginal culture or people.
Significantly, as it seems to me, she described the foster parents as very caring and good parents and she stayed in touch with them until they passed away. Nevertheless, and importantly, she refers to an “identity crisis, of lacking confidence of how to relate to people or where she belonged” and that “while she now feels able to refer to herself as a [G Tribe] woman she has only recently felt confident in doing so”.
The father’s sister said that, for many years, she questioned her own right to be considered part of the G Tribe people as she had not grown up with them. She said she still lacks the confidence to say “this is my culture and this is my land”. Mr H goes on to report of her that:
“…the cultural aspects of her separation from her family are not the only area she feels has affected her life. She described how she still feels loss and grief at the loss of a shared experience of childhood and family with her siblings…”.
It is perhaps understandable then that the father’s sister is reported by Mr H as saying that:-
“52.She believes that only by living with her father and regularly spending time with family in [the southern coastal area], can [the child] gain the connection to her culture, people and the land, that she will need. She also said [the child] should attend NAIDOC week events with her father or his family, and other significant cultural events for the father’s family though funerals were only attended when older.
53.She does not believe that half holidays and alternate weekends with her father will be enough time, as [the father’s sister] had to spend time living with her family in [the southern coastal area] to attain what connection she now has.
54.She was able to maintain a strong relationship with her foster parents despite having returned to live with her family and culture and does not feel that [the child] has to lose her relationship with Mr and Mrs [Jarrod] to reconnect with her father and his family. She suggested a long transition for [the child] to live with her father and regular visits with Mr and Mrs [Jarrod], if she goes to live with her father.”
It needs to be observed, however, that the father’s sister described to Mr H how “her family had accepted her when she recontacted them, and that by spending time with the family she had learnt the social rules and the “lingo” “.
In a similar vein, Ms R who is the older sister of Mr Jarrod and lives in T, told Mr H that:-
“…like most Aboriginal children [the child] is able to adapt to different cultures because she is already able to adapt to both Aboriginal and non-Aboriginal cultures. That is she has learnt to cope with the differences between white mainstream culture and Aboriginal culture. She therefore believes that [the child] will have no difficulty in adapting to the differences between her father’s cultural group and that of Mr and Mrs [Jarrod]”.
In Mr H’s most recent report he quotes Ms J who, as well as being the father’s aunt is “an elder of the [G Tribe] people”. She does not know the child. Ms J’s father was a recognised G Tribe elder and “was one of the last people to grow up in the traditional culture …”. Mr H says:-
“69.Information from the Kapay Aboriginal people consulted in the previous report, of the 17th October 2008, was that learning Aboriginal culture was not a formal or structured process but incidental to a range of social interactions. Ms [J] confirmed that this was also the case for the [G Tribe] people. For [the child] to develop a significant connection to [G Tribe] culture she will need to have these opportunities and to do so the flexibility and shared acceptance of the importance of these activities will need to exist between the two sides of this dispute.
70.Court orders will not be able to specify which events are important, or how long she should miss school for any particular events. Unfortunately it appears that [the father] and Mr and Mrs [Jarrod] are probably not going to be able to agree on such matters. If such events are accepted as being of sufficient importance the only means the court may have of ensuring [the father] has the ability to decide to take [the child] is for her to live with him during the school terms, or for him to have the power to take her out of school against Mr and Mrs [Jarrod’s] wishes.”
A Consensus of Views
It is difficult (and, perhaps, even offensive to the intricacies and subtleties of cultural matters that are probably beyond the genuine understanding of non-indigenous people), to attempt a summary of the matters referred to by the people whom Mr H consulted.
Nevertheless, it is necessary, in an evidentiary sense, to attempt an analysis and weighing of those specific matters such that they can be considered together with other matters mandated as necessary to be considered by the Act.
Mr H has attempted such a summary. I have again read the opinions expressed by each of the persons to whom he had reference and I agree that his summary is accurate. Mr H says in his second report:-
“148. Across all the people consulted and from all the information gathered the following aspects appeared to be broadly agreed as important for the process of [the child] in being able to establish a connection to the culture of the [G Tribe] people and for her to establish a clear and positive cultural identity:
·[The father] would need to have the time and motivation to participate in his culture and to ensure [the child] spends time in her country with his relatives.
·That [the child] must have a positive relationship with [the father] and members of his family.
·[The child] would need to spend a significant amount of time with [the father] and members of his family, including his extended family. Almost all agreed the amount of time would need to be more than half holidays and alternate weekends, and that the times would need to be flexible to include significant events during school term.
·It would be necessary for there to be a co-operative relationship between the two families and that there would need to be flexibility in the arrangements.
·Those involved in her life would need to be able to “share” [the child] and responsibility for her, and accept and respect the involvement of the others.”
Earlier in that report, Mr H had identified:-
“146. An area where there was no agreement between those consulted was whether or not, or to what extent [the child] living with Mr and Mrs [Jarrod] would interfere with her forming a clear cultural identity as a member of the [G Tribe] people. The factors that were identified as necessary to help [the child] to develop a connection to her father’s culture if she does live with Mr and Mrs [Jarrod] were:
·Mr and Mrs [Jarrod] being connected to and practising their own traditions and culture.
·Mr and Mrs [Jarrod] respecting [G Tribe] culture.
·Mr and Mrs [Jarrod] supporting [the child] in identifying with [G Tribe] culture.
·Mr and Mrs [Jarrod] supporting [the child] in having a positive relationship with her father and her spending time with him.
“147.Those consulted came from many different Aboriginal groups and it was apparent that whilst some cultures determine membership or belonging to their group by the biological relationship to one or both parent, other groups accept membership of those who do not have a biological connection but who are raised in the culture. [The father] described how in [G Tribe] culture membership is usually determined by the biological mother, though if the child cannot form a connection to the culture of the biological mother they can be accepted as a member of the [G Tribe] people due to the biological connection of the father alone.”
Of the four factors identified above, if the child is to continue living with Mr and Mrs Jarrod, I have no doubts that the last three are satisfied.
Findings about the first of those enumerated factors are not as easy to make. Mr H reports Mr and Mrs Jarrod describing how they had taken the child to the southern coast area camping, and that they had told the child “this is your country”. They described being willing to take her to see relatives there.
Mr and Mrs Jarrod have explained to the child that she is an Aboriginal child, have taken her to NAIDOC events and have facilitated her participating in generic Aboriginal cultural activities organised for children in T. The child mixes with children from a wide range of indigenous families and with the Jarrods’ extended family in T.
Mr H goes on to say in his second report:-
“173. [Mr and Mrs Jarrod] described that they intend to raise [the child] as a member of their group and with a connection to their culture, that is to teach her of their culture. They believe that this is not mutually exclusive with her learning of her mother and father’s cultures and will not in any way confuse her or diminish her connection to other Aboriginal cultures”.
In that respect I observe that some, at least, of those people spoken to by Mr H agreed with the latter statement.
Of those matters identified above as being areas of broad agreement by all those consulted by Mr H, I find that there is clear evidence that:-
· The child has a positive relationship with the father and members of his Family
· There is likely to be a co-operative relationship between the two families and there is likely to be some flexibility in the arrangements.
· That the father (and Ms A) for their part and Mr and Mrs Jarrod for their part, now respect the involvement of the others in the child’s life.
· The child has been spending what some might regard as a “significant” amount of time with the father and members of his family including his extended family but, erstwhile, not to an extent that would amount to more than half holidays and alternative weekends.
· In terms of the flexibility of those arrangements, there have also been some issues with respect to the participation in culturally significant events nominated by the father. But these issues have had at their core the child missing school as distinct from an assessment that the events themselves were not of significance for the child.
Into that mix of matters should also be added the fact that, thus far, not a great deal has been done by the father to expose the child directly to her culture. Much of this has emanated from both a desire not to do so while these proceedings are pending (in effect for “fear of doing the wrong thing”) but, also, because of the combination of restricted amounts of time and geographic distance.
The father said that he had “done a few things”. He gave as an example that he had driven along the Queensland coast with the child and pulled off the road and shown her the boundary of G Tribe country. He hasn’t taken the child to cultural sites on the weekends when spending time with her and explained this by saying he couldn’t take her to sites because they were situated in other people’s country. His own country, which is bounded, approximately, “by [named towns]” was too far away to take the child on weekends.
The father accepts that it has been necessary for him to work on weekends and that Ms A has, as a result, done a significant amount of the day to day care giving during those times. He indicated that he was thinking of retirement. He didn’t mention this to Mr H but indicated in the witness box this was because he has only started thinking about it recently.
The father indicated that in the last five years he had been to the southern coastal town (within his country and where many members of his family lives) “about five or six times” – that is “roughly once a year”. As earlier indicated, he also said that he was away working for periods of time in the tourism industry.
I think it highly likely that, with the exigencies of family life, his business, and his tourism work there would be significant periods of time where Ms A would provide the day to day care for the child were she to move to the father’s residential placement.
Those same factors impact on the likelihood, and the family’s capacity, to travel to country on a regular basis with the child if the proposed change in her placement was to occur.
Obviously enough, many significant matters cannot be predicted with any certainty. In his second report, Mr H said:-
“193.It appears that if [the child] is to remain living with Mr and Mrs [Jarrod] ultimately the type of arrangement needed for her to form and maintain the cultural connection and identity she needs will not be one a court order can define. It will need to be based more on the commitment, flexibility, co-operation and good will of all involved in her life than what is written in court orders”.
I agree with that statement. Interestingly, however, certainly the father and, to a lesser extent, Mr and Mrs Jarrod, each contend for specific orders as a result, I gather, of a desire to have a base level of certainty about arrangements.
What Orders Should be Made in The Child’s Best Interests?
I have earlier found that the presumption of equal shared parental responsibility is rebutted. Accordingly, that presumption does not play a role in the determination of the live with and time orders that best meet the child’s best interests. Of course, findings about those best interests determine what orders should be made.
I have found that, as the child matures she is likely to seek out further time with her father and, more generally, is likely to allow her curiosity to take reign in respect of her G Tribe heritage.
I consider it highly likely that this very bright, assertive child will, in time and over time, make each of those desires well known.
I have already found that I consider it highly likely that, however much sadness might attend it, Mr and Mrs Jarrod are likely to act upon a mature intention expressed by the child to spend more time with her father as she gets older. Equally, I consider it highly likely that Mr and Mrs Jarrod recognise properly a likely concomitant and understandable desire by the child to know more of her G Tribe heritage and to seek out her father and members of his family in order to enrich that experience and gain knowledge.
Furthermore, Mr and Mrs Jarrod accept that the father is the person best placed to make decisions about the child’s “cultural education” generally – their issue is the extent to which that should “clash” with school and other time. It seems to me appropriate for the father to have sole parental responsibility for the child’s “cultural education” but for that to be subject to specific orders I will make in respect of specific times. Those specific orders embrace what I consider to be the child’s adherence to other, well established parts of her life (particularly school and the friendships and activities resulting from it).
Otherwise, because of the central place that conflict about this central issue has had in those aspects of arrangements that the parties have not been able to agree, I consider it important to make clear the decision making process that should otherwise apply.
I consider it in the child’s best interests that those decisions should be made by Mr and Mrs Jarrod but only after a process of consultation with the father (which, I am confident, will – genuinely – take place). Equally, though, certainty and stability for the child means, given the difficult and complex nature of the conflicts which have arisen thus far, that certainty needs to be given about those who will make the ultimate decision.
Whilst I make it clear that the “live with” and “time” orders I will make are made because I consider they are in the child’s best interests on the evidence before me, it is also, nevertheless, clear in light of the findings just made, that they are likely to have a “natural time frame” significantly shorter than the nine years until she is an adult. That is a significant additional factor (s 60CC(3)(m)) in my ultimate decision.
Orders sought by the Independent Children’s Lawyer are supported by Mr and Mrs Jarrod. Those orders can be seen as providing both for time greater in quantity than half holidays and each alternate weekend and also as making specific provision for time coinciding with matters of cultural significance, including the circumstance that the child might miss school in order to attend those events.
The order proposed by the Independent Children’s Lawyer would see the father assume (subject to some time orders) sole responsibility in relation to decisions about the child’s cultural education. In the context of proposing that the child continue to live with Mr and Mrs Jarrod with specified periods of regular time with the father, the ICL also proposes that the father spend time with the child:
“for events of cultural significance to the child, EXCEPT sorry time, on a giving to the [Jarrods] as soon as the father becomes aware of events of culture significance for the child, including a description of the event, the duration of the event, where the event will be held and the people anticipated to attend but including at least:
a.For the NAIDOC week in July each year, and;
b.If the cultural event falls within the school year when [the child] might otherwise be at school, on a further three occasions in each school year provided that [the child] is not absent from school for more than five school days and not during any exam time, and;
c.For ‘sorry time’ on giving the [Jarrods] at least 24 hours notice of the duration of the event, where the event will be held and the people anticipated the attend.”
In addition to weekend time, the ICL proposes that some school holidays (Easter and September/ October) are halved between the parties with the father having time with the child for the whole of the June/ July school holidays and for four weeks during the December/ January school holidays. In addition time with the child is provided for in the event that the father is in the T area upon the giving of notice. Time on special days (father’s day/ mother’s day etc) is also included.
The father made out a case that, irrespective of the party with whom the child was to reside by reason of orders made by this court, alternate weekend time provided insufficient capacity for the child to be able to participate in sporting and other activities on the weekend. He suggested, then, that this time be eliminated.
I decline to make such an order.
It seems to me that with a moderate degree of intelligence and common sense (which all parties have) and with co-operation (of which all parties are capable), those sorts of activities can be accommodated within orders for regular time. Although there is some geographic distance between the homes of the respective parties, it is by no means uncommon (as was discussed, and accepted, during the course of the hearing) that residing in a non-metropolitan area frequently requires driving considerably greater distances in order to incorporate regular activities for children.
Further, I consider that the child now understands her place within two families and it is important that she have the capacity to maintain regular and significant time with each of those families including that of the father.
By reason of the findings made earlier, I consider that a move from Mr and Mrs Jarrod’s care is, at this age and stage of the child’s life, not in her best interests.
Whilst attempting to give appropriate weight to what might crudely be described as notions of “extended attachment”, I am, ultimately, not persuaded that the important matters relating to the child’s right to enjoy her Aboriginal – and G Tribe – culture, including her right to enjoy that culture with other people who share that culture, point sufficiently to the contrary.
However, those same factors do point to the child spending regular and significant time with her father, her sibling, her extended family (and other Aboriginal and G Tribe people). They also point to the child having the opportunity for significant “block” periods of time with those same people. I have in mind the periods provided for in the draft orders in June/July and December / January.
Moreover, in my judgment, those same factors point to the child spending time with her father, her sibling, her extended family and other Aboriginal and G Tribe people, on occasions of particular significance to those people. Whilst it might, in fact, not be possible to do so with precision (see the quote from Mr H at para 168 of these Reasons), it is nevertheless important, in my view, for orders to attempt to do so to give stability to the child and certainty to the arrangements.
In my judgment the orders proposed by the ICL quoted above achieve that purpose.
I propose to make orders, then, broadly in accordance with the orders proposed by the ICL and supported by Mr and Mrs Jarrod.
The issue of The Child’s Name
The child’s birth certificate (Exhibit “ICL 1”) records her name as “N Noble”. It will be recalled that the mother, Ms Noble, failed to acknowledge the father and the birth certificate records no entry for the Father.
In the Jarrod household, the child had been known as “J”. The Department had indicated that this was the name she should be called. To the extent it was necessary to use a surname, her name was given as “J Jarrod”.
In 2005, as pre-school was approaching, the Jarrods approached the Department for advice and received advice that the child’s name as used in their household should be formalised. Accordingly a Change of Name Certificate (part of Exhibit ICL1) records the child’s registered name as “J N Jarrod”.
The evidence reveals that the child is known as N in the Dunstan household, or, more accurately, by an abbreviated version of that. This derives from her sibling, K, being unable to pronounce N when he was younger. The nickname has been used, then, for some time.
In these proceedings, the father seeks an order that the child be known by, and registered in the name of, “N J Dunstan”.
The Independent Children’s Lawyer proposes (in orders, again, supported by Mr and Mrs Jarrod) an order in the following terms:-
“That the child be known as [J N Jarrod-Dunstan] and that the father be responsible for ensuring and arranging that all forms and documents required by the Registrar of Births Deaths and Marriages to give effect to a change of name for the child are duly completed by him and forwarded to the [Jarrods] who will do all acts, sign all documents and forms required by the Registrar of Births Deaths and Marriages to give effect to the change of name of the child and then return same to the father within 14 days of receiving them”.
The evidence reveals that being known by two names causes the child very little distress. In my view, this is consistent with her identifying with two families rather than one. In his evidence, Mr H indicated that, from the child’s perspective, he considered it important that, whatever decision was made with respect to the child’s name, it should include a recognition of the Dunstan household.
Mr H considered that the child was of sufficient maturity and, in any event, her personality was such, that she would be comfortable with different names in different households. Certainly, I can see no difficulty with her being known as “N” in the father’s household. I consider, though, that if the considerations just referred to can be accommodated, there is considerable merit in certainty attaching to the child’s name for all formal purposes as she gets older.
In my view, the name proposed by the Independent Children’s Lawyer, and supported by Mr and Mrs Jarrod, gives to the child, as it were, “the best of all worlds”.
She has the given name bestowed on her by her birth mother; she has the recognition of her membership of the Dunstan family and she also has recognised the given name that she has had for most of her life together with the significant role that the Jarrods have played within it.
I understand, and have taken into account, the fact that issues of the type discussed earlier in these reasons, particularly the father’s reference to the child being “his blood” necessarily have an impact upon the decision to be made by this court with respect to her name.
Nevertheless, I consider that the whole of the evidence points to it being in the child’s best interests that she be known by the name proposed by the Independent Children’s Lawyer and agreed to by the Jarrods.
I should say that the proposal in that respect first came from Mr and Mrs Jarrod as a means of indicating that they considered it important that the Dunstan name formed part of the child’s name.
For those reasons, I order in accordance with the orders pronounced herewith.
I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy
Associate:
Date: 5 June 2009
Key Legal Topics
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Family Law
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Administrative Law
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Jurisdiction
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Procedural Fairness
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Natural Justice
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Remedies
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Costs
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