Ewing & Ewing - [2022] FedCFamC2F 160

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ewing & Ewing [2022] FedCFamC2F 160

File number(s):	SYC 2431 of 2018
Judgment of:	JUDGE BOYLE
Date of judgment:	21 February 2022
Catchwords:	FAMILY LAW – Children – Aboriginal & Torres Strait Islander Families List – dispute between grandmother and great aunt – risk – time with siblings.
Legislation:	Family Law Act1975 (Cth) s. 60CC, 69ZK
Cases cited:	Goode & Goode [2006] FamCA 1346
Division:	Division 2 Family Law
Number of paragraphs:	92
Date of hearing:	21-23 June 2021
Place:	Sydney
Counsel for the Applicant:	Ms Hayward
Solicitor for the Applicant:	Cheryl Orr Family Law
Counsel for the Respondents:	Did not join in these proceedings
Counsel for the Respondents:	Did not join in these proceedings
Counsel for the Third Respondent:	Ms Treherne
Solicitor for the Third Respondent: Counsel for the Independent Children’s Lawyer: Solicitor for the Independent Children’s Lawyer:	Thiyama-Li Family Violence Legal Service Ms Mesner Legal Aid NSW Sydney Central Family Law

ORDERS

SYC 2431 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS EWING Applicant
AND:	MS B EWING First Respondent MR KING Second Respondent MS WITT Third Respondent

ORDER MADE BY:	JUDGE BOYLE
DATE OF ORDER:	21 FEBRUARY 2022

THE COURT ORDERS THAT:

The child, X born in 2014 (X) shall live with the maternal great aunt, Ms Witt.
The maternal great aunt shall have sole parental responsibility for X.
Notwithstanding Order 2 above, the maternal great aunt shall:
a.provide the maternal grandmother by way of text message or phone call with as much notice as practicable and, if possible, at least 28 days notice, of any decision which she is considering making for the Child in relation to:
i.where he attends school;
ii.any religious matter;
iii.any significant medical treatment; or
iv.any significant issue to do with his care and development; and
b.take into account of any views which the maternal grandmother expresses about any non-urgent decision she is considering making provided that the maternal grandmother expresses those views within 14 days of being notified; and
c.notify the maternal grandmother of the decision which she has made, with some brief reasons.
The maternal great aunt and the maternal grandmother shall inform the other if X attends upon a medical practitioner, with details of the name of the medical practitioner, any diagnosis and treatment as soon as practicable.
The child, Y born in 2017 (Y) shall live with the applicant maternal grandmother, Ms Ewing.
The maternal grandmother shall have sole parental responsibility for Y.

Spend time with arrangements

X shall spend time and communicate with Y:
a.and the maternal grandmother in Town C:
i.        For one weekend, on the sixth week of the gazetted school term, from Friday 4:00pm to Sunday at 4:00pm;
ii.      for the first week of the Term 1 school holidays in 2022;
iii.     for one half of the Term 1 school holidays from 2023, as agreed, and in default of agreement, for the first week in odd years and the second week in the even years;
iv.      for one half of the Term 3 school holidays, and in default of agreement, for the first week in odd years and the second week in even years;
v.       for all of the Term 2 school holidays from July 2022, and each Term 2 school holidays thereafter;
vi.      from the Summer school holidays commencing December 2022, and each summer school holiday period thereafter, for one half of the long summer school holidays as agreed, and failing agreement the first half in even years and the second half in odd years; and
b.and the maternal great aunt in Town C:
i.        in the Term 1 school holidays in 2022:
A.from 10am to 2pm Monday 18 April 2022, with changeover to occur at the Maternal Grandmother’s home;
B.from 10am to 2pm Tuesday 19 April 2022, with changeover to occur at the Maternal Grandmother’s home;
C.from 10am to 3pm Wednesday 20 April 2022, with changeover to occur at the Maternal Grandmother’s home;
D.from 10am to 3pm Thursday 21 April 2022, with changeover to occur at the Maternal Grandmother’s home;
E.from 10am to 4pm Friday 22 April 2022, with changeover to occur at the Maternal Grandmother’s home.
c.in City O:
i.from the start of the second term of school 2022:
A.on the third week of the gazetted school term from Friday 4:30pm to Sunday at 4:00pm;
B.for one half of the Term 1 and Term 3 school holiday period (commencing in the Term 1 2022 school holidays) as agreed, and in default of agreement, for the second week in odd years and the first week in even years; and
C.for two weeks in the long summer school holidays as agreed, and failing agreement the first two weeks of the holidays in odd years, and the first two weeks of the new year in even years.
d.Such further and other times as may be agreed between the parties.
Unless otherwise agreed by the maternal great aunt and the maternal grandmother or provided specifically in these orders, changeover shall occur at the Town D McDonalds.
The maternal great aunt shall facilitate telephone or FaceTime communication between X and the maternal grandmother whilst X is in her care as requested by X but no less frequently than once every three (3) days.

Provision of information

10.The maternal great aunt and the maternal grandmother shall keep the other informed of their mobile and landline telephone numbers and any available email addresses and advise the other party of any change within 24 hours of such change.
11.In the event of childhood illness or emergency the party with whom the child is with, shall contact the other party forthwith to inform them.
12.Each party shall be permitted to liaise directly with the children's day-care, school, sporting bodies, doctors and medical providers to receive school notices, information, newsletters, school reports, school photographs, medical reports and results, medical records and any other information that a parent or legal guardian would normally be entitled to and this order shall be sufficient authority to allow any such organisations to release such information.
13.Each party shall be at liberty to attend at the children’s school for the purposes of any function or activity normally attended by parents.
Restraints
14.The maternal great aunt and the maternal grandmother be hereby restrained by injunction from:
a.abusing, insulting, belittling, rebuking, or otherwise denigrating the other party, including on any social media platform; and
b.discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the child, or any of them, and from permitting any other person to do so.

15.The maternal grandmother shall supervise X and Y’s time with the mother.
16.Without admissions, both parties are hereby restrained from consuming alcohol to excess (being more than the legal driving limit) or consuming illicit drugs whilst the grandchildren are in their care.
17.During any period when X and/or Y are in the care of the maternal grandmother, the maternal grandmother be and is hereby restrained from:
a.Allowing any person on her property to consume alcohol or illicit drugs;
b.Allowing any person on her property who appears to be affected by having consumed excessive alcohol or having used illicit drugs.

If any incident of abuse, or violence occurs at the grandmother’s property when the children are in her care, the grandmother shall immediately ask for the instigator of the violence to leave her property, and if that person refuses to do so shall call the NSW Police to ask them to remove the person.

19.If any incident of abuse, or violence occurs at the grandmother’s property when the children are in her care, the grandmother shall ensure that the children are removed away from the violence as soon as possible.
20.The parties shall be restrained from allowing X or Y to spend any time with Mr E unless that time is supervised by Ms Witt or Mr F .
21.Pursuant to Sections 62B and 65DA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
THE COURT NOTES:
A.The Court notes that these proceedings do not relate to G Ewing, however, both the maternal aunt and maternal grandmother regard X, Y and G as a sibling group, and it is anticipated that G will participate in time arrangements with his siblings.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE BOYLE:

These are proceedings with respect to the care arrangements for X, who is aged 6 years, 10 months and Y aged 4 years, 5 months. The applicant and respondent are sisters: the maternal grandmother and maternal great aunt respectively of the children. They each seek orders for X to live with them. There is no issue that Y will continue to live with her maternal grandmother, where she has lived since she was 3 months old.
X and Y have a third sibling, G, who lives with the maternal grandmother. The Federal Circuit Court made orders on 30 June 2015 confirming his care arrangements, which have been in place since birth.
There is no issue that both the maternal grandmother and great aunt care deeply about these children. Both are motivated by what they perceive is in the best interests of the children. Within their family they have experienced significant trauma: their older brother was removed from the family, and placed in H Boys Home. The impact of those experiences is not to be underestimated, and no doubt impacts the way they each view what is in the children’s best interests. The sisters have previously had a co-operative relationship. Unfortunately their relationship had deteriorated at the time of the hearing.
An additional layer of difficulty experienced by all in this hearing is the impact of the pandemic. The matter was conducted in person in Sydney, in line with NSW public health guidelines at the time. On the last day of the hearing, as the evidence was concluding, the NSW government announced lockdowns to come into effect for the Greater Sydney area. The matter was adjourned so the parties could leave Sydney prior to the lockdown, and written submissions were ordered. There were subsequent lockdowns in the areas where the parties live.
The mother of the children is aged 22 years. She lives in Town C with the maternal grandmother. She has not filed any documents in these proceedings, nor participated. She spoke with the family report writer by telephone from her mother’s home. She has been served with the documents relied on in the hearing, and notified of the hearing date. I am satisfied that she is aware of the proceedings, and specifically the final hearing.
Mr King, aged 30 years, is the father of G. Y’s father is Mr J, who is deceased.
There is doubt about X’s paternity. Mr King has been identified as his father, although that is uncertain. Mr King was served with documents in these proceedings, and advised of the hearing dates. He has not participated at any stage of the hearing.
Both the grandmother and great aunt identify with the K and L peoples of north-western NSW. They are both connected to their culture and community.
The maternal grandmother is 53 years old. She has 11 children, and 23 grandchildren. She lives in Town C, a small rural community in north-west NSW. A number of her children and grandchildren live in the town, which has a large Aboriginal population. Town C, and the area around there, is her Country through her mother. She has a strong connection to Country.
The children’s maternal grandfather, Mr M, lives in Town N. Although he and Ms Ewing have separated, they have maintained a close relationship. They provide each other with support in caring for their children and grandchildren. He filed an affidavit in these proceedings, and was cross examined.
The great aunt is 57 years old. She has been in a relationship with Mr F for 34 years. She has 3 children, and grandchildren in the City O and Town N areas. Mr F has grandchildren in Town C. They often drive one of the grandchildren back and forth to University in City P from Town C during the holidays.
Ms Witt and Mr F have separated for short periods, including at the time the interviews for the report were conducted by Mr Q. The grandmother told Mr Q of this, rather than the aunt. When the grandmother commenced proceedings she understood her sister was separated, and that she and X were homeless. Ms Witt said they were not homeless, but stayed with her daughter. The last time they separated Mr F moved to the caravan park, and continued to assist with X’s care.
Ms Witt works in aged care, doing shift work. Mr F is employed as a tradesman. They are supported in X’s care by their adult children.
X has lived with the maternal aunt since he was 3 months old, placed there by the Department of Communities and Justice (DCJ). The arrangements were formalised by an order under the Children and Young Persons (Care and Protection) Act 1998. Consent pursuant to section 69ZK has been provided in relation to making orders in in these proceedings.[1] The grandmother was not assessed as a suitable placement at the time of the Children’s Court proceedings, and consented to orders placing X with her sister. There were concerns that she was not able to properly supervise the mother’s time with X, that there was a risk of family violence in her relationship with Mr M, and that there was a history of criminal offending and involvement of the Department.
[1] Exhibit R2, Letter from Family & Community Services dated 3 October 2017.
Both Ms and Mr F have very close relationships with X. Although he is aware of his parentage, he refers to them as ‘mum and dad’. During periods when the Witts have been separated I accept that Mr F and X have maintained their relationship though regular time arrangements.
X spent time with his grandmother Thursday to Sunday every 3 weeks, and during school holidays. That ceased after Mr M posted a message on Facebook on 13 May 2021, which suggested that Ms Ewing was neglecting her grandchildren to pursue a new relationship, and using ice. Mr M’s evidence is these allegations are false: he posted the message out of jealousy and anger at that time, as he felt he was being replaced in the maternal grandmother’s life. He was clear that to his knowledge she had never taken ice or any drugs, nor neglected her children nor grandchildren. In his view she always puts her grandchildren first.
Unfortunately Ms Witt saw the post and became concerned that Ms B Ewing may be using ice. Her evidence is that she has never previously had that concern. She became aware through some of Ms B Ewing’s children that her sister was going out a lot, and her behaviour had changed. That coupled with the post on Facebook caused her to stop sending X for time with Ms B Ewing in the lead up to the hearing. I accept that the evidence does not support that the grandmother is using drugs. Although both women referred to time being suspended for about two months, the evidence is clear that it occurred after the post, therefore a period of five weeks.
Living in the grandmother’s home are her grandchildren R (junior) aged 16 years, and S (junior) aged 17 years. R is unemployed, and S is in Year 11 at school. The mother, G and Y also lives there.
There is a concern that other family members living with the grandmother use alcohol and drugs. This includes the children’s mother. I accept that Ms Ewing does not condone use of drugs or excessive use of alcohol, however, it is difficult for her to control in others.
There have been significant disputes between the maternal family and other members of the community in Town C. Mr Q, who authored the family report, referred to “the collective nature of Aboriginal families and the obligations that members bear to each other, including the notion of “one in, all in” in defence of family, and where there is a perceived injustice”.
X has maintained a relationship with his maternal grandmother through spending time in her care. When with her, he has been able to develop and maintain his relationship with his siblings G and Y, and his mother.
There are transcripts of conversations between members of the grandmother’s family with her daughter Ms T, when she was in U Correctional Centre tendered. The conversations took place in 2016. They are difficult to follow, and the meaning of much is unclear. The grandmother conceded that she is a participant in some of those conversations, but not all. In brief, the conversations suggest that community conflict referred to elsewhere in this judgment was continuing in the gaol. I do not place significant weight on these transcripts given the difficulty in identifying the speakers, the context of conversations being unknown, and that they took place some 5 years ago.

APPLICATIONS

The maternal grandmother seeks: sole parental responsibility for the children Y and X; that X live with her and spend time with the great aunt on the first weekend of each calendar month in Town C, from the conclusion of school on Friday to commencement of school on Monday with changeover to take place at Town C Public school. She sought additional orders with respect to school holidays and communication between X and the maternal great aunt.
The great aunt seeks: sole parental responsibility for X; that he live with her; that notice be given to the grandmother before she makes long term parenting decisions to do with his care and development. She sought time arrangements between X and his siblings, Y and G, and the maternal grandmother in Town C, and with her in City O and Town C.
The Independent Children’s Lawyer ultimately proposed orders supportive of the great aunt’s case.

DOCUMENTS RELIED ON

The maternal grandmother filed a case outline document identifying the documents she relied upon:
(a)Affidavit of maternal grandmother filed 2 June 2021.
(b)Affidavit of Mr M filed 17 June 2021.
(c)Initiating application filed 18 April 2018.
(d)Maternal grandmother’s proposed minute of orders.
The maternal great aunt filed a case outline document identifying the documents she relied upon:
(a)Response of maternal great aunt filed 27 June 2018.
(b)Affidavit of maternal great aunt filed 20 May 2021.
(c)Affidavit of Mr F filed 20 May 2021.

Additionally the court has been assisted by an Expert Report prepared by Mr Q dated 9 October 2020. Mr Q was cross examined.

THE LAW

The best interests of the children are paramount in parenting proceedings. The Family Law Act1975 (Cth) (“The Act”) at section 60CC provides the legislative pathway to determine children’s best interests. [2]
[2] Goode & Goode [2006] FamCA 1346.

ISSUES

The issues for determination are:
(e)The risks for X in being separated from his maternal great aunt and uncle, other than during holidays and a few weekends in school terms.
(f)The risks for X in growing up separated from his siblings Y and G other than during holidays and a few weekends in school terms.
(g)The risks for X from potential exposure to conflict, violence and drug use within his extended family, and the community in Town C.

PRIMARY CONSIDERATIONS

Section 60CC(2) The primary considerations are:

(a) Benefit to the children of having a meaningful relationship with both of their parents

And

(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The mother did not attend a scheduled interview with Mr Q for the report. He was able to speak with her briefly by telephone. She has a mild intellectual disability, and Attention Deficit Hyperactivity Disorder. She lives most of the time with her mother. At times she stays with other family members, and friends. She has had ongoing issues with drug use.
It is common ground between the maternal grandmother and great aunt that the mother is not able to provide for the children’s needs. Time with the mother is generally supervised by the maternal grandmother.
X has a relationship with his mother, when he spends time with his maternal grandmother. Y spends time with her mother frequently, as they generally live in the same home. I accept that both children have a meaningful relationship with her, and know that she is their mother. Their grandmother endeavours to balance their need for a relationship with her, with their need for protection from her.
X witnessed his mother fighting in the street outside the house in Town C. His grandmother denied this had occurred. I accept that this occurring is consistent with the police records, and admissions of the grandmother of problems within the community at Town C.
The maternal grandmother’s evidence is that she would not permit the mother to live with her if X lived there. The maternal grandmother has a strong, supportive relationship with her daughter. If her daughter was homeless, or otherwise in difficulty, I have no doubt that she would do all she could for her. I accept that she would take her daughter in to live with her if she regarded that as necessary for her daughter. I accept that prioritising protection of her grandchildren over her daughter would be difficult for the maternal grandmother.
The grandmother has previously had an Apprehended Violence Order (“AVO”) for her protection against the mother. She accepted that things have been more difficult for the mother over the 12 months prior to the hearing. She was unaware that Police records refer to Ms B Ewing saying she wanted to kill herself. She was unaware that a report was made to DCJ that R told a girlfriend that he had sex with Ms B Ewing when they were young; he thought it funny to “lick her vagina”. The mother has had mental health problems, which have included being on a suicide watch during a mental health admission.
The children would be at risk were they exposed to their mother using, or affected by, drugs. I accept the grandmother’s evidence that she does her best to prevent use of drugs in her home. She accepted that there may be a few drinks if there is a barbecue outside, but her evidence is otherwise alcohol is not consumed.
The mother sometimes walks her children to the shop and back, if the grandmother feels she is doing well, and did not pose a risk. The great aunt accepts her sister is able to make that assessment.
The maternal grandmother gave evidence of enmities within the community in Town C. There have been fights that have seen the maternal family physically fighting with others in the community. This has involved the Police at times. I accept that the mother, in part due to her intellectual disability, may not be able to anticipate problems arising, nor have the capacity to protect the children from violent situations if they arose around her.
The maternal grandmother has also been present during confrontations within the community, involving her family. There was an “affray” in January 2016 at the weir at Town C. The grandmother’s evidence is that the incident occurred because her children were targeted by others in the community. The police material suggest that the grandmother was involved, at times directing her children’s involvement in the physical confrontation. She denied that, and said she arrived later. She referred to the incident in an affidavit filed in proceedings before the Children’s Court as a “baby affray”. The incident occurred prior to an assessment for those proceedings. She agreed she did not tell the person completing the assessment about the incident because she did not think she had been charged at the time she saw him. Clearly it was a matter that should have been disclosed.
In his report Mr Q weighed the risks to X from criminal offending and welfare involvement within the grandmother’s home, and the benefit of growing up with his siblings as part of the grandmother’s household, and was of the view that the analysis favoured the grandmother’s home. When cross examined he accepted that he had not been advised about the full extent of the difficulties with the community, nor within the grandmother’s household. For example, he was not aware that Ms Ewing’s children have partners from the families who were part of the affray. When the grandmother referred to “family” during the course of interviews with Mr Q, she meant her children and grandchildren only.
Ms Ewing did not tell Mr Q about seeking to obtain care of V, Mr M’s nephew in 2011. There was an assessment conducted by a children’s court clinician. There were concerns about family violence and drug use within her household at that time. It was recommended that Ms Ewing not be the authorised carer for any child, and V was removed from her care.
At the time X was removed from the care of the maternal grandmother an AVO was taken for the protection of the mother from her father, Mr M. There was an allegation that he hit the mother. This was denied by the grandmother, and Mr M. Mr M has a long criminal history involving convictions for assault. There is insufficient evidence about this for me to make a finding as to whether the incident occurred, but it is conceded that the AVO was granted.
On 5 March 2021 the grandmother was pulled over for having a six year old in the car without proper restraints. On the same day the police observed resealable bags and drug residue located in the vehicle. Ms Ewing made clear it was not her motor vehicle. Ms Ewing takes the view she and her family are targeted by certain Police officers. I accept that happens, particularly to Aboriginal people in rural communities. It may well have occurred in this instance. However, there is an issue if members of her family are using drugs. It exposes the children to the risk of accidentally consuming substances, police interventions, and being around drug affected adults. It also does not address a child being driven without appropriate restraints.
The maternal grandmother was charged with attempting to take contraband into the gaol at Town W. Her evidence it was buprenorphine, commonly known as ‘bupe’. It is a drug used for treatment of opioid addiction. Her son R was in gaol, and she was told to bring the drugs into the gaol, or something would happen to her son. It was sent to her with instructions for delivery to the gaol. Ultimately she pleaded guilty to this offence on 1 October 2020. She did not advise Mr Q about this. She said that was because she had not yet been convicted. After her interviews she spoke to him on 6 and 7 October 2020, to assist him speak to the mother. She agreed that he would have asked her for an update on how things were going during on those days. Mr Q was also not advised about a conviction in 2021 for stealing.
Her son R has been charged with a sexual assault on his previous partner. He stays from time to time at the maternal grandmother’s home. He used her address with police. She agreed that R was facing serious charges.
I accept that there is a risk for X and Y being exposed to anti-social behaviour in Town C. This causes risk in a number of ways. Firstly, it normalises violence and drug use for children. Secondly, there is a risk the children may be collateral damage in a fight between others. Whilst there are steps the grandmother can take to mitigate these risks, it is unrealistic to expect that she can manage the behaviour of all within the household all the time. Whilst I do not accept that these matters pose an unacceptable risk for Y or X, it is a risk to be weighed in balancing the children’s best interests.
Ms Witt regards X as being at risk of psychological harm, more than any physical harm, in her sister’s home. I accept that the grandmother would act protectively towards X, and the other children, so far as she was able to. I am concerned that there are risks from other members of the family, and community that are outside of her control.
Ms Witt’s son, Mr E has a conviction of assault occasioning actual bodily harm with respect to his former partner. He was gaoled from 2019, and released on parole to live at his mother’s from 2019. He had a previous conviction for assault in 2005. She agreed that he likely had a history of drug and alcohol abuse, although he did not use when living with her. Like her sister, she insisted that there was no tolerance for ‘bad behaviour’ in her home. She said she did not know the detail of his offence, but was aware it involved violence against his former partner. Mr E was moving out of the home after his parole period expired some weeks after the hearing. I accept that there is no evidence of violence by Mr E against either of his parents, and that the risk of being exposed to family violence in their home is minimal.
Mr F has previously spent time in gaol in 2000. He has not had any convictions since. His offending did not relate to violence, and there are no reports before me from police or Department of Communities and Justice concerning violence in that home. I do not regard Mr F as posing any risk for X given the length of time since the offence, that it did not involve violence, and the strength of his relationship with X.

ADDITIONAL CONSIDERATIONS

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

Neither X nor Y are yet of an age or stage of development where they are able to express a view about their living arrangements. X told the report writer that he likes to visit Town C, and is very happy living in City O. He is clear that he loves his little sister. He was less sure about G. I do not regard the latter as significant given X’s age and maturity.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

And

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

X has a close and loving relationship with Ms Witt. He has lived the majority of his life in her care, and refers to her and Mr F as his mum and dad. Whilst he knows they are not his parents, I take this as being indicative of his close relationship with them. They have provided him with consistent, loving care in which he has thrived. Mr F is the only father figure that X has.
X has raised with them being bullied at school, which is the only negative comment he made to the report writer about life with Ms and Mr F. Ms Witt has discussed this with X, and encouraged him to speak to his teacher.
There is no issue that the grandmother has a close relationship with X. X described her to the report writer as caring and protective of him. Ms Witt supported him spending 2 to 3 weeks with her in 2019. She was considering at that time whether it was in X’s best interests to live with Ms Ewing. She decided it was not, and he returned to City O.
If there were a transition to Ms Ewing’s care it would need to be sensitively and skilfully managed for X. The grandmother has unfortunately posted on Facebook on 12 June 2021 that she has no sister in her life, only four brothers. Her evidence is that she did it because she was upset that her sister had believed the post of her former partner, that she was using drugs. She has also alleged that her sister had a gambling problem with poker machines, and that she was concerned government payments for him would be spent on gambling. This allegation was never raised with Mr Q. She accepted, ultimately, that this was not a real concern of hers, as if it was she would have raised it with Mr Q. She has never raised this matter with her sister.
I accept that Ms Ewing lashes out at times, whether verbally or by social media post. This has the potential to leave X’s relationship with Ms Witt unsupported. This would be extremely damaging for his emotional wellbeing, given his great aunt and uncle are his primary carers and the people he regards as fulfilling the role of parents.
Other than the suspension of time following Mr M’s Facebook posts, Ms Witt has supported X’s relationship with his grandmother. She has done the majority of travel for the time arrangements. In part this is because she has used the trips to visit other family in Town C, and Town N.
Although the grandmother is concerned to ensure that X has a strong relationship with his siblings, she is opposed to time occurring between her sister and the children together in City O. The reason for this opposition emerged during cross examination: “why would I want to do that so she could lure the other kids away?” I accept that this is a real concern held by the grandmother, and makes it difficult for her to support time for G, Y and X at Ms Witt’s home. This fear may also drive a lack of support for X’s time with Ms Witt were he to live with her. It is in the best interests of all three children to spend time together at both homes, to build their relationships.
G has paternal family living in Town C. The grandmother has not attempted to foster a relationship for him with that side of his family. Y has paternal family in Town N. Despite the grandmother spending time there frequently, she has not made contact with the paternal family. I accept that she alone cannot make a relationship happen for these children, however, she could contact the family she is aware of. This adds to my concern about the grandmother supporting X’s relationship with his great aunt and uncle were he to live with her.
Ms Ewing has raised a concern about her observation of X being very angry at times with her. She has raised this with her sister, as she was concerned he may benefit from counselling. Ms Ewing has not seen this in her home, and is of the view that it is a problem only in Town C. It may be that X is less settled when with his grandmother, or misses his aunt, and it manifests as anger. It is difficult to place much weight on this.
X described his relationship with his mother to the report writer as her “trying to boss him around”, and that she threatened to hit him at times. It is consistent with Ms Ewing and Ms Witt’s view that her time with the children needs to be supervised.
The three siblings have close relationships, especially Y with each of her brothers. The boys argue and fight with each other at times, according to their grandmother. X described arguing with G to the report writer. He felt his grandmother backed him, and Mr M backed G. He disliked this occurring.
Ms Witt acknowledged the children’s close relationships with each other, and her support for their time together, and communication. It may well be that the tension the boys experience is a function of X being used to being the only child in the house. Changing that would be a large adjustment for X.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) To participate in making decisions about long-term issues in relation to the child;

(ii) to spend time with the child; and

(iii) to communicate with the child.

The contest in this matter is between the grandmother and great aunt. The parents have ceded decision making to the grandmother and great aunt. A consideration of this factor does not assist in a determination of the issues.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child

The parents have not played a role in maintaining the children.

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he has been living;

For X to live with the maternal grandmother would mean separating from his great aunt and uncle, who have provided him with care for the whole of his life. He calls them mum and dad, reflecting the type of relationship they share. His great uncle is the only father figure he has. It is difficult to know how he would cope with being separated from either of them. Additionally he is the only child in the household, with the individual attention that comes with that. He has grown to be a confident, active child in their care.
X has a close relationship with other extended family living in City O. Ms Witt’s grandson and X have a close relationship, which she described as like a brother.
X knows he is part of a broader group of siblings, and family, in Town C. Sibling relationships usually provide life long support, built on shared experiences. Unfortunately this dispute between the sisters demonstrates that is not always the case. X has close relationships with G and Y from spending regular time with them. He knows they are his brother and sister.
If X moves to live with his grandmother he would have to adapt to being part of a large, multi-generational household. He does that when he spends time with them on weekends and holidays, but that is different to living there on a day to day basis. I accept that change would not be easy for X. He is used to life as the only child in the household.
It is difficult to predict how he would manage. To date he has had the security of his relationship with his great aunt and uncle to support him. Although they have had difficulties in their relationship that does not appear to have been experienced by X as de-stabilising or upsetting. That suggests they have both assisted him through those problems.
Were X to require support in transitioning to his grandmother’s care there is no evidence of local services available to assist him. The report writer suggested the school counsellor may be able to assist, and was unaware of other options available. This is particularly relevant to the concerns about him having hyperactive traits.
There is no issue that Y will continue to live with her grandmother. I accept that it is in her interests to be able to develop her relationship with her brother.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

There is a drive of 3.5 to 4 hours between the two households. This restricts time occurring during school terms to only a few occasions. The majority of time will occur in school holidays.

Section 60CC(3)(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child)

to provide for the needs of the child, including emotional and intellectual needs.

X’s GP has noted that X has hyperactive traits. He was on a wait list for a paediatric assessment at the time of the hearing. Ms Witt had organised that for him. She has advised the grandmother.
Routine and stability are important for X. I accept that Ms Witt and her husband have been able to provide that for X. The number of people living in the grandmother’s home, and their differing needs, makes that more difficult in her home.
Mr F has raised his concern that X is unsettled on return from Town C. He swears, and has described drug taking behaviour, such as his uncle smoking a bong.
The maternal great aunt has demonstrated her capacity to meet X’s needs since he was placed with her as a baby. He has been in her care all his life.
X has attended school from the home of both his great aunt and grandmother. At Town C there have been issues with his attendance at school, and being late. He was also involved in fights at school. There have been chronic non-attendance issues for other children in that household.
The grandmother was referred to in the expert report as a person who would protect X from violent or anti-social behaviour. As Mr Q described in his evidence she has a “complex, large and disorderly family”. The difficulty is that she has been a participant in violent and anti-social behaviour with her own children. This has included her taking drugs to the gaol, getting her then 14 year old daughter to drive her home because she was drunk, leaving children at home alone while she and Mr M were at the Bowling Club, and at least being present during an affray, and not attempting to intervene or calm the situation. She has had an Apprehended Violence Order to protect her against the children’s mother, with whom she lives.
During the course of cross examination, Mr Q was not as supportive of the grandmother’s application as he had been in the report. He accepted that his understanding of the situation in Town C at the time of the report was lacking information. I accept the submission by counsel for the great aunt that this “tempered” his view.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.

X and Y are part of a group of siblings with G. They are children with a K and L heritage through their grandmother and great aunt.

Section 60CC(3)(h) If the child is an Aboriginal or Torres Strait Islander child:

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy 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

X and Y are Aboriginal children from the L and L peoples. They are connected to their culture through both their grandmother and great aunt. They are able to enjoy their culture, and be immersed in it, with their family. Both women were observed by the report writer to be “steeped in Aboriginal culture, and in their parenting of the children they promote pride in Aboriginal culture, knowledge and understanding, and connectedness to family, community and culture”[3]. That will persist regardless of what orders are made.
[3] Report of Mr Q p26
Mr Q was clear in his view that given the family connections for X with his grandmother and great aunt, this is not a case which warrants comparison to the stolen generations were X to live with his great aunt. This was suggested during the hearing by the grandmother, at a time when she was acutely upset. There is no issue that X will maintain a connection to all his family, as he has to date. The orders of the court will support that occurring.

Section 60CC(3)(j) any family violence involving the children or a member of the child’s family.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

I accept that the mother has engaged in violent behaviour in front of the children. This is acknowledged by the grandmother, and she supervises the mother’s time. Other family members in Town C have participated in violent behaviour, which has brought them to the attention of the Police, and the Department.
Whilst I accept that the grandmother is committed to keeping the children away from violent behaviour, I accept that this may not be possible given the family circumstances referred to in Town C.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

It is preferable that there be no further litigation with respect to either X or Y. X was the subject of care proceedings as a baby. The two families have had enough of litigation and disharmony. It is difficult to predict whether any orders will achieve that outcome.

PARENTAL RESPONSIBILITY

I accept that the presumption in favour of equal shared responsibility is rebutted with respect to the parents. This is clear from the position taken by both the grandmother and great aunt.
Unfortunately the sisters’ relationship has broken down to the extent that they are not able to share parental responsibility. They live far apart, and any urgent decisions would need to be discussed and agreed by telephone. This is difficult when communication is poor. I accept that parental responsibility should be exercised by the person with whom the children are living, with a requirement to consult with the other. The desires for the children are similar in both sisters.
The great aunt agrees that the grandmother should have sole parental responsibility for Y.

CONCLUSION

X, Y and G will continue to have time together pursuant to the orders. Those relationships have been sustained and nurtured through time arrangements to date, and there is no evidence that will not continue to be the case.
I propose ordering that X continue to live with his great aunt because I am concerned he would not manage being separated from her. Whilst he has a close relationship with his grandmother, it is a different style of relationship. When he spends time with her it is knowing that he is returning to Ms Witt’s care. Removal from a primary carer can be highly damaging for children. X would be placed in a home which is familiar to him. However, he would be part of a larger group of children and young adults, including his mother. The distance between the households would limit mid-term weekends. He would be reliant on the care and support of his grandmother, already stretched caring for four grandchildren, and her daughter Ms B Ewing. It is clear she is a staunch advocate for her older children in their various difficulties. All these matters would limit her ability to provide X with one on one attention, which he is used to.
There is no issue Y will continue living with her grandmother, and her brother G. That is the only care arrangement she has known. It would be helpful for all the children to spend time together in both City O and Town C. Whilst I cannot make orders about G that arrangement would be consistent with Ms Ewing’s views that the children should spend as much time together as is possible.

I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boyle.

Associate:

Dated: 21 February 2022