Hort & Verran
[2009] FamCAFC 214
•1 December 2009
FAMILY COURT OF AUSTRALIA
| HORT & VERRAN | [2009] FamCAFC 214 |
| FAMILY LAW – PARENTING PROCEEDINGS – APPEAL FROM FEDERAL MAGISTRATES COURT– DISCRETION – APPLICATION OF LAW – Aboriginal mother’s appeal against refusal of application to have sole parental responsibility for her children - Not established that the Federal Magistrate failed to properly consider the paternal grandmother’s failure to encourage the relationship between the children, the mother and the maternal family – Not established that Federal Magistrate gave insufficient weight to the children’s Aboriginality – Not established that Federal Magistrate gave insufficient weight to the children’s need to identify as members of the Tiwi culture and the effect living with non-Aboriginal grandmother would have on the children – Not established that Federal Magistrate failed to properly consider the paternal grandmother’s failure to encourage the children to identify as members of the Tiwi culture – Not established that Federal Magistrate gave insufficient weight to the evidence of the maternal grandmother in regard to the children’s Tiwi identity and heritage – Established that Federal Magistrate erred in providing for the paternal grandmother to be sole decision maker as to when the father can spend time with the children in absence of compliance with conditions he undertake drug and alcohol counselling. – Role of anthropological evidence with respect to matters of Aboriginal identity and culture discussed – Federal Magistrate properly accepted evidence of Tiwi Elder with respect to such matters in absence of anthropological evidence |
| Family Law Act 1975 (Cth) Part VII, ss 93A, 60CC(3)(c) and 65DAC |
| CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1979) 144 CLR 513 In the Marriage of B and R (1995) 19 Fam LR 594 Davis & Davisand Anor (2008) 38 Fam LR 671 |
| APPELLANT: | Ms Hort |
| 1ST RESPONDENT: | Ms Verran |
| 2ND RESPONDENT | Mr Verran |
| INDEPENDENT CHILDREN’S LAWYER: | Ward Keller |
| FILE NUMBER: | DNC | 59 | of | 2008 |
| APPEAL NUMBER: | NA | 9 | of | 2009 |
| DATE DELIVERED: | 1 December 2009 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Darwin |
| JUDGMENT OF: | Coleman, O'Ryan & Strickland JJ |
| HEARING DATE: | 10 August 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 21 January 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr O'Donnell |
| SOLICITOR FOR THE APPELLANT: | Allison Land North Australian Aboriginal Justice Agency |
| COUNSEL FOR THE RESPONDENT: | Mr Robertson |
| SOLICITOR FOR THE RESPONDENT: | D Story D C. Story Associates |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Burke |
| SOLICITOR FOR THE 2ND RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Brasch |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Michelle Giacomo Ward Keller |
Orders
(1)That the appeal be allowed in part.
(2)That Order 6(b) of the orders made on 21 January 2009 be discharged.
(3)That the appeal be otherwise dismissed.
(4)That the Court grants to the First Respondent Grandmother a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the First Respondent Grandmother in respect of the costs incurred by the First Respondent Grandmother in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Hort & Verran is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT DARWIN |
Appeal Number: NA 9 of 2009
File Number: DNC 59 of 2008
| Ms Hort |
Appellant
And
| Ms Verran |
1st Respondent
And
| Mr Verran |
2nd Respondent
And
| Ward Keller |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal dated 27 July 2009 and filed by consent on 10 August 2009 Ms Hort (“the mother”) appealed against orders made by Federal Magistrate Brown on 21 January 2009 in parenting proceedings between Ms Verran (“the paternal grandmother”), Mr Verran (“the father”) and the mother.
The Federal Magistrate’s orders provided that the two children of the mother and father, M Verran born in March 2000 and V Verran born in September 2002 (“the children”) primarily reside with the paternal grandmother.
In lieu of the orders made by the learned Federal Magistrate, the mother sought orders that she have parental responsibility for the children, and that the children primarily reside with her.
On 9 July 2009 the mother filed an application in the appeal seeking leave to adduce further evidence pursuant to s 93A of the Family Law Act 1975 (Cth) (“the Act”). The further evidence sought to be adduced was contained in an affidavit sworn by the mother on 8 July 2009. The further evidence related to the mother’s relationship with Mr J at the time of judgment and to her relationship with Mr J subsequent to the date of the Federal Magistrate’s judgment on 21 January 2009.
Counsel for the mother, correctly in our view, conceded that a significant part of the mother’s further evidence, though potentially relevant to the re-exercise of the Court’s discretion if the appeal succeeded, could not impact upon the determination of the appeal, as it related to matters that were the subject of evidence before the Federal Magistrate.
On 29 June 2009 the Independent Children’s Lawyer (the “ICL”) also filed an application in the appeal seeking to adduce further evidence. The further evidence was contained in an affidavit sworn by Michelle Giacomo, the ICL in this matter on 23 June 2009. The further evidence sought to be adduced related to the ICL’s attempt to obtain an expert to give evidence to assist the court in relation to the Aboriginality of the children. The affidavit alleged that the ICL had been unable to locate an appropriate expert.
The appeal involves challenges to the weight the Federal Magistrate gave to the children’s right to enjoy their Aboriginal Tiwi culture, and their right to maintain a connection to that culture. The mother contends that the Federal Magistrate did not give sufficient weight to the children’s right to enjoy and maintain a connection with their Aboriginal Tiwi culture. The paternal grandmother asserts that the Federal Magistrate gave sufficient weight to the children’s cultural rights. The appeal also involves the mother’s complaint that the Federal Magistrate erred in awarding the paternal grandmother sole decision making power with respect to the children spending unsupervised time with their father in light of the Federal Magistrate’s findings with respect to the father’s history of violence, and alcohol abuse.
The paternal grandmother resisted the mother’s appeal, and sought to maintain the orders of the learned Federal Magistrate. The ICL also resisted the mothers appeal. The paternal grandmother and the ICL both resisted the mother’s application for leave to adduce further evidence.
The father attended at the hearing of the appeal and resisted the same.
Background
The matters of background recounted below find expression in the Federal Magistrate’s Reasons for Judgment, and are not controversial for present purposes.
The paternal grandmother was born on in October 1951. The father was born on in March 1973. The mother was born in April 1973. The father and mother met when they were growing up in J in the Northern Territory.
For the majority of their respective lives the parties have lived in Darwin, or in bush settings on its rural outskirts.
The paternal grandmother’s parents migrated to Australia from Croatia (her father) and Italy (her mother). The father of the children shares his mother’s European ethnicity.
The children’s mother is an Aboriginal woman. Her mother, Mrs Hort, a Tiwi Elder, is part of the generation of Aboriginal children that were removed from their birth families and raised in government or church based institutions. The maternal grandmother was born at a station in Central Australia. She was eleven when she was taken away from her family and placed in a Catholic Mission. The maternal grandmother was, and remains, an important person in the mother’s proposals for the care of the children.
The mother’s father was a Tiwi man, who died during cyclone Tracey in 1974. The mother strongly identifies as a Tiwi woman, as do her eleven brothers and sisters, and extended family.
The children are part of a large and diverse family. They have four half-siblings on their mother’s side and two half siblings on their father’s side.
Arrangements for the children’s care in the past have not always been stable. The relationship between father and mother, which produced M and V was a turbulent one. It commenced in 1999 and terminated in 2002. The Northern Territory police intervened on many occasions during the relationship, and the mother was granted a number of domestic violence restraining orders against the father.
The children came to be in the care of their paternal grandmother during Easter 2006 in disputed circumstances, the paternal grandmother saying that the mother abandoned the children, and the mother saying that she left the children with the paternal grandmother on a temporary basis.
On Christmas day 2007, the mother went to the paternal grandmother’s home unannounced, requesting to spend time with the children. With some reluctance, the grandmother agreed to this request. The mother did not return the children.
On 29 January 2008 M returned to her paternal grandmother’s care. V remained with her mother and was enrolled at School.
On 13 February 2008 the grandmother commenced the parenting proceedings which resulted in the Federal Magistrate’s decision of 21 January 2009. Subsequently, in late March of 2008, it was agreed that V would return to the paternal grandmother’s care, and the two children would spend time with their mother on weekends, and for half of each school holiday period. The children were to be exchanged between the paternal grandmother and the mother at the C Shops. A consent order to this effect was made by Federal Magistrate Terry on 28 March 2008, and since 4 April 2008 the paternal grandmother has been the primary caregiver of the children. The grandmother contends that the children are doing well in her care.
The paternal grandmother lives at S, which is near B. M and V attend the B Primary School. B is about 35kms distance from H, where the mother currently lives. C is the mid-way point. Unfortunately, the exchange of the children between the children’s paternal grandmother and their mother has been marked by conflict. Both blame the other for this conflict.
Prior to the commencement of the hearing on 21 October 2008, the father chose not to take a formal role in the proceedings. He did however appear at the hearing and gave some oral evidence.
The mother’s case at trial was that she was in a happy and secure relationship with Mr J, who is a non-drinker, and lived in rented accommodation at H, on the rural outskirts of Darwin. Mr J, her partner of that time, did not give evidence at trial. Nor was he interviewed by the family consultant, Ms P.
Mr J is a person of European background, who was originally from Tasmania but has lived in the Northern Territory for most of his life. He and the mother have two children, A born in January 2007 and S born in March 2008. The children live with the mother.
At trial, the ICL advocated that M and V continue to live with their paternal grandmother and spend time with their mother on three weekends out of four, during school terms and for half of each school holiday period.
The ICL also supported an outcome which would see the father spending only supervised time with the children, until he has completed a course of anger management and alcohol counselling. The ICL proposed that the paternal grandmother supervise the time the father spent with the children.
The Federal Magistrate’s Reasons for Judgment
The Learned Federal Magistrate provided a comprehensive account of the history of the parties to the proceedings. Our review of His Honour’s Reasons for Judgment need only concern itself with those parts of the judgment which are potentially significant in the light of the issues emerging from the mothers’ Amended Notice of Appeal.
Having identified the competing claims of the parties, his Honour provided a detailed background to the proceedings. We have set out above by reference to that much more detailed account, the matters of background which we regard as significant for the purposes of the issues which we are required to determine.
The family report produced by the family consultant, Ms P, provided the learned Federal Magistrate with an outline of the issues which were central to the case. His Honour recorded with respect to Ms P’s report that:
215.Overall, Ms [P’s] assessment of [the paternal grandmother] and her level of input in the children’s sense of connection to the Indigenous aspects of their family was that she neither actively encouraged nor actively dis-encouraged these aspects of the children’s lives. Ms [P’s] sense was that the children felt good about their background and there was no evidence that [the paternal grandmother] was actively dismissive of it.
Having considered the mother’s assertion that she was now in a position to offer the children a safe and violence free home, his Honour concluded:
230.Although like Ms [P], I am impressed with [the mother’s] efforts in obtaining her home at [H], I share these concerns that [the mother] is still not able to provide [M] and [V] with the same level of stability and continuity, which [the paternal grandmother] has.
231.Mr [J] is an important component of what [the mother] asserts is the new direction in her life. However, at a fundamental level, I am not able to assess this aspect of the mother’s case because of the absence of Mr [J]. In my view, it is a very significant deficit indeed.
His Honour recorded that Counsel for the mother placed significance on the fact that Ms P did not have the benefit of expert evidence supportive of the maternal grandmother’s evidence that the children’s cultural background may be lost to them if they were placed in the care of their paternal grandmother. He concluded however that:
243.No specific expert anthropological evidence was provided in this case. No doubt there were pragmatic reasons for this. I do not think Ms [P’s] lack of anthropological qualifications should act as a factor which should cause me to discount her evidence generally. Nor should I under-estimate the cultural factors because of a lack of specific expert evidence.
In assessing the nature and significance of Tiwi culture His Honour conceded that the maternal grandmother’s evidence was very important in the overall disposition of the case. His Honour ultimately concluded:
244.As a Tiwi Elder, [the maternal grandmother’s] experience and knowledge must be respected. However for obvious reasons, she cannot be regarded as an impartial witness. At the end of the day, the children’s background and heritage, although highly important, is one factor amongst many which must be weighed and assessed. [The maternal grandmother’s] evidence is central in this regard.
In addressing the best interests of the children, by reference to the provisions of Part VII of the Act, his Honour considered the practical effect of the presumption of equal shared parental responsibility when making parenting orders under section 61DA. His Honour recorded:
295.In [the mother’s] case, she places particular emphasis on the children having a meaningful relationship with her through being involved in enjoying the common aspects of their Tiwi culture together. It is her case that this is the best means of the children having such a meaningful relationship with her and, if the children remain living with [the paternal grandmother], inevitably the children’s relationship with her will not reach its full potential.
296.Essentially, it is the mother’s case, supported by [the maternal grandmother] that the level of meaning or significance the children will derive from their maternal relationships in large part, depends on the extent of the exposure of [M] and [V] to Tiwi culture and language, whilst in her care.
297.It is also [the mother’s] case that the children’s right place is with her because she is the children’s mother. As such, she should be the major source of emotional sustenance for the children in future.
The Learned Federal Magistrate concluded that the Father was not likely to proactively pursue a meaningful relationship with the children, and that his past violent behaviour disqualified him from being a significant element in the children’s life, and recorded:
301.I am satisfied that [the father] has been violent towards both [the mother] and [the paternal grandmother] in the past and both [M] and [V] have been exposed to this violence. The most recent episode of this violence occurred in November of 2007. Both children witnessed it.
302.In particular, the children saw their father strike their paternal grandmother and cause her to be injured. Thereafter, although [M] was unable to fulfil this role, she attempted to protect her grandmother. The incident had the potential, if it has not already done so, to cause significant emotional harm to the two children concerned.
305.I do not think that it can be said that [the paternal grandmother’s] action, in some way or other, precipitated [the father’s] violent reaction to her. It is also my view that, in November of 2006 [sic], [the paternal grandmother] was attempting to protect the children from [the father’s] behaviour.
His Honour referred to the significance of Ms P’s evidence in assessing the children’s home life with the paternal grandmother, and concluded:
320.…I was particularly impressed with Ms [P’s] evidence, which indicated that the two children were happy and well settled in [the paternal grandmother’s] home. The impression I have, from Ms [P’s] evidence, is [M] and [V] see their grandmother’s home as an oasis of calm in what has otherwise previously been a somewhat turbulent and disrupted life.
325.In my view, [M] and [V] will be able to have a meaningful relationship with their mother if they are able to spend regular periods of time with her, both on weekends and during school holidays. As Ms [P] points out, they will be able to do craft work with [the mother] and engage in the collection of bush tucker together. These are the sorts of activities, which I would have thought are more amenable to taking place on weekends.
The learned Federal Magistrate further concluded:
326.…I was impressed with Ms [P’s] evidence that it was likely to be helpful to [M] and [V] if they had a secure home base, from which they regularly sallied forth to spend time with their mother. Ms [P’s] evidence was that she found [the mother’s] household to be more cluttered and chaotic than [the paternal grandmother’s].
327.I have no reason to doubt this evidence. As such, I think that there is a need to strike a balance between the children’s need for stability and predictability, so far as arrangements for their care are concerned, with the need for them to maintain a meaningful level of relationship with their mother.
At trial, the father supported his mother’s case for parental responsibility of the children. His Honour relevantly recorded:
328.[The father] has not formally indicated what are the orders which he seeks in these proceedings, other than that, in general terms, he supports [the paternal grandmother]. She is prepared to be a supervisor of any time, which [M] and [V] spend with [the father], for the foreseeable future. In the longer term, it seems to be [the father’s] position that he would want to spend time with the children, unsupervised, at his home at [D].
329.It is important that the two children concerned maintain a significant relationship with their father. As [the mother] herself conceded, the children love their father and look forward to spending time with him. At this stage, however, steps need to be taken to protect the children from [the father’s] volatile temperament, particularly when he has been drinking. In my view, supervision of the time the children spend with [the father], by [the paternal grandmother], is the most appropriate mechanism for this to occur.
334.In my view, the best balance of the benefits the children are likely to have from having a meaningful relationship with [the father], with the need to protect them from potentially suffering psychological damage as a result of being exposed to family violence at his instigation is for [the paternal grandmother] to remain the supervisor of the father’s time, until such time as he has completed the course of treatment and education recommended by Ms Giacomo.
The leaned Federal Magistrate proceeded to explore the additional considerations, and particularly, the willingness and availability of the other parties to encourage a close relationship between the children and the other parent. His Honour recorded:
352.If the children do remain living with [the paternal grandmother], I have some concerns about how encouraging she will be of the children’s relationship with their mother. I reach this conclusion given [the paternal grandmother’s] concession that the children are well aware that she ([the paternal grandmother]) does not like the children’s mother because she (the paternal grandmother) has told them this.
353.Similarly, if the children come into [the mother’s] care, I do not think that she is likely to be particularly amenable to the children regularly seeing either [the paternal grandmother] or [the father]. Although she placed the children with [the paternal grandmother], in the first place, the impression I have is that she feels now that [the paternal grandmother] has wrongfully misappropriated the care of the children from her. As such, she believes would be quite within her rights to truncate the children’s ongoing relationship with their paternal grandmother.
356.The current situation, which confronts the court, so far as care arrangements for these children is concerned is highly problematic. To a large extent, this is because of [the mother’s] decision to leave the children with [the paternal grandmother] for an extended period of time.
358.As such, I do not think any one of the relevant parties is significantly better placed than any of the others to ensure that the children’s important relationships are fostered and encouraged. Whatever is the outcome, [M] and [V] will have the impression that the various aspects of their family are fractured.
The likely effect on the children of any changes in their circumstances was considered by the learned Federal Magistrate to also be one of the more significant factors in the case before him. His Honour accepted that the paternal grandmother had provided a high level of security and stability for the children, and recorded in that regard:
360.…It is Ms [P’s] evidence, which I accept, that [M] and [V] have flourished in [the paternal grandmother’s] home and relish the security, which it provides. It is also the case that both children are attending school regularly and [M], in particular, is doing well there. This is to [the paternal grandmother’s] credit.
362.Ms [P] characterises [M] and [V] as being resilient children. As such, Ms [P] considers that they will “make the best” of whatever situation confronts them. Accordingly, I accept that the children would be able to make the transition, back into their mother’s care, as [the mother] proposes at the start of the school year in 2009.
His Honour further recorded that:
363.However, in my view, the change would be a significant one for both children. Their mother’s household is different to [the paternal grandmother’s]. It is less structured and less based on routine. The impression I have, from seeing [the mother] in the witness box and from hearing from Ms [P], is that [the mother’s] household is a somewhat rambunctious one.
364.No doubt, [M] and [V] have memories of what is was like living with their mother in the early part of 2006. To some extent, [the mother] acknowledges that the children were somewhat traumatised by what happened in her household, from time to time. In this context, I have some concerns about how the children would cope with the level of change proposed by [the mother].
The learned Federal Magistrate acknowledged that the most significant aspect of the children’s background was their Aboriginality, an issue which required careful consideration. His Honour considered the children’s right to enjoy their Aboriginal culture, and the likely impact a parenting order in favour of the paternal grandmother would have on that entitlement. His Honour recorded:
374.From [the mother’s] point of view, if [M] and [V] live predominantly with [the paternal grandmother], this outcome will significantly impinge upon the right of the children to enjoy and participate in this central cultural aspect of their lives and identities.
375.Pursuant to section 60CC (6), this right includes the right to maintain a sense of connection with that culture; and to be able to explore and appreciate it in positive and concrete ways. This appreciation must be positive in its connotations.
The learned Federal Magistrate considered section 60CC (6) of the Act. He recorded the Mother’s case to have been:
376.…its is [the mother’s] case that [the paternal grandmother], at best, has a shallow and second hand appreciation of Aboriginal culture, particularly Tiwi culture, or at worst is likely to be actively undermining of the children’s Aboriginal background because of her own racist orientation.
379.It is her case that the children concerned, in this case, cannot enjoy these aspects of their cultural background if they live predominantly with a person who does not viscerally understand them. Essentially, it is her case that these aspects of the children’s cultural background cannot be learnt in an intellectual way but must be assimilated through direct exposure or immersion in them. It is [the mother’s] case that the Tiwi culture, of which she is a part, remains alive and in order for [M] and [V] to “enjoy” it, they must live it through direct experience.
His Honour considered the evidence of the maternal grandmother by reference to section 61F of the Act, and concluded:
383.…The affect of [the maternal grandmother’s] evidence is that she has a number of obligations towards these children, who will be required to know about and to participate in Tiwi cultural practices, particularly those related to funerals and other ceremonies. The children will need to learn about these matters from her primarily and other senior Tiwi relatives. For obvious reasons, [the paternal grandmother] is incapable of fulfilling these obligations.
After referring to Stephen Ralph’s article, his Honour concluded with respect to the paternal grandmother that:
398.…She undoubtedly loves the two children concerned deeply, a love which is unaffected by their background. However, at both a deep emotional level and practically, she does not understand what it is to be Aboriginal. [The mother] and her family do. [M] and [V] are and will remain Aboriginal children. As a result, at one level, in spite of her love for the children, [the paternal grandmother] will be unable to empathise with the societal position likely to be occupied by [M] and [V] and provide for them completely in this regard.
399.I am also concerned that because of her undoubted antipathy for [the mother], [the paternal grandmother] will find it difficult to support the children’s sense of connection to their Indigenous background. In addition, she may unwittingly fall into the error of communicating stereotypical views to the children about Aboriginal people in general. As a result, I remain concerned that there is a very real possibility of [M] and [V] suffering some form of identity crisis, as they move from childhood to adolescence and beyond.
400.The issue in this case is how best to balance [M] and [V’s] undoubted need for security and reliability and their emotional attachments and other matters related to their care, with their right to maintain and enjoy strong cultural connections. It is not a balance which falls easily into place in my mind.
The learned Federal Magistrate recorded the submission on behalf of the paternal grandmother , in reliance upon the evidence of Ms P that:
401.…the balance will be achieved if the children live predominantly with [the paternal grandmother] and spend most weekends and significant proportions of each school holiday period with [the mother]. To use Ms [P’s] phrase, the children will be able “to sally forth from a secure base” and to spend time with their mother and extended family.
His Honour described the position of the mother and the maternal grandmother in the following terms:-
402.From [the mother’s] and [maternal grandmother’s] perspective, such an outcome will be tokenistic and fraught with all manner of difficulties. From their point of view, [M] and [V] will only regard themselves as Tiwi if they are totally immersed in its culture, language and traditions. This can only come about if the children live predominantly within a Tiwi orientated household.
After reviewing the evidence before him, His Honour noted:
406.Accordingly, if the children live with [the mother] predominantly, they will not be moving directly to live on the Tiwi Islands. In addition, they will be exposed to [the mother’s] present partner, [Mr J], who is not an Indigenous person.
407.Accordingly, it is my impression that the children are unlikely to speak Tiwi predominantly in their mother’s household. In addition, it seems more likely than not that the children will engage in hunting and fishing, whilst with their mother and other family members on weekends and during school holidays. It also seems likely that the children will go to the Tiwi Islands, with their mother, when occasion demands that they should go, such as to attend a funeral or other ceremony, or for recreational reasons.
The learned Federal Magistrate articulated his conclusions with respect to the parties’ competing perspectives on achieving a balance between the children’s need for security and reliability, and their right to maintain strong cultural connections. The difficulty of the determination His Honour was required to make was summarised in the following terms:-
413.I do not consider that the outcome proposed by Ms Giacomo and adopted by [the paternal grandmother] will be tantamount to the children simply receiving information and knowledge about their cultural background, in a tokenistic or meaningless way. In my view, [M] and [V] will be able to have an active experience of the lifestyle, culture and traditions of the Tiwi people by being able to spend regular weekend time and school holidays with their mother and other relatives.
414.[The paternal grandmother] can never know what it is to be an Indigenous person. However, I do not think that she is a racist or would actively do anything to harm [M] and [V’s] sense of self identity. The children came into [the paternal grandmother’s] care because [the mother] either actively or passively agreed to such an arrangement. In this sense, she recognised the children’s significant attachment to the paternal side of their family.
416.As Ralph has observed, the transmission of Aboriginal culture, from generation to generation, is highly influential in determining a child’s best interests, from the Aboriginal perspective. This was the import of [the maternal grandmother’s] evidence. I consider that [M] and [V] will be able to be part of this transmission of knowledge and culture, notwithstanding that they live with [the paternal grandmother] during the school week.
His Honour found with respect to the mother’s assertion that she is able to provide a safe and violent free home for the children that:
422.As Ms [P] points out, [M] and [V] have been exposed to family violence in every household in which they have lived. This include [the paternal grandmother’s] household. However, so far as [the paternal grandmother] is concerned, I am satisfied that she has never been a protagonist of any such family violence but rather has been its victim.
423.It is the mother’s case that her household will be a safer one for the two children concerned. She asserts that [Mr J] is a quiet and non-drinking person. Regrettably, given his absence from these proceedings, I am not in a position to make any assessment regarding him. As such, I am unable to conclude conclusively that [the mother’s] household is indeed the safer one for these two children.
424.For the reasons already provided, I am satisfied that [the paternal grandmother], from her own personal experience, is aware of the extreme dangers which family violence poses for children. In my view, she was acting protectively, so far as [M] and [V] were concerned, when [the father] assaulted her in November of 2007. I do not think that she can be significantly criticised for her behaviour on this occasion.
The learned Federal Magistrate concluded with respect to the issue of family violence that:
425.As such, I am satisfied that the children will most likely be protected from exposure to family violence, if they remain living with [the paternal grandmother]. For the reasons already given, I have grave concerns about [the father’s] past behaviour and the level of his insight into the consequences, for others, of his past violent behaviour. As such, at this point, I agree with Ms Giacomo and [the mother] that any time he spends with [M] and [V] should be supervised.
For the reasons which he had thus articulated, the learned Federal Magistrate concluded that, on balance, it would be in the children’s best interests to remain living with their paternal grandmother, and spend periods of the weekend and holiday time with their mother as proposed by the ICL.
His Honour ordered that the paternal grandmother and the mother exercise shared parental responsibility for the children in relation to major long term decisions pursuant to section 65DAC of the Act.
The mother’s application for leave to adduce further evidence
Although it is perhaps more usual for further evidence applications to be determined after a party’s grounds of appeal have been considered, the further evidence application having been agitated first, and raising a discrete issue, it is convenient to deal with it first in the circumstances of this appeal.
Counsel for the mother, sensibly in our view conceded that a significant part of the mother’s affidavit could not constitute further evidence, as it related to matters which had been the subject of evidence before the Federal Magistrate.
In reality, the paragraphs of the mother’s affidavit which are capable of constituting further evidence for the purpose of section 93A of the Act commence with paragraph 19 and conclude 14 paragraphs later with paragraph 32. As is apparent from the dates referred to in those paragraphs, the matters there referred to are alleged to have occurred subsequent to the conclusion of the trial of the proceedings before the learned Federal Magistrate.
In support of his application for leave to adduce the evidence which was capable of constituting further evidence, Counsel for the mother submitted that, if accepted, such evidence would render erroneous the decision of the learned Federal Magistrate. Reliance was placed upon paragraphs 109, 111 and 148 of the majority judgment in CDJ v VAJ (1998) 197 CLR 172 [at 201-203 and 217]. In those passages, the majority McHugh, Gummow and Callinan JJ said:
The scope of s 93A(2)
…
109.One consideration in construing s 93A (2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111.The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
148.In exercising the discretion to receive the further evidence in this case, the Full Court had to bear in mind the purpose to which that evidence was directed. That purpose was to provide the evidentiary ground for setting aside the order of the primary judge and ordering a new hearing of the husband's application, it being common ground that, if the appeal should be allowed, the Full Court could not determine the matter. The Full Court also had to bear in mind that, in the context of a case such as this one, the relevant purpose of s 93A (2) is to facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge. Because that is so, the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order.
It was submitted that the learned Federal Magistrate had made adverse findings with respect to the mother’s proposed arrangements for the care of the children in his judgment, by reason of the failure of her partner, Mr J, to give evidence during the trial of the proceedings, or to participate in the interview process which led to the production of Ms P’s report. In essence, the submission of Counsel for the mother was that the further evidence would remove the basis for drawing any inferences adverse to the mother by reason of the involvement of Mr J in her life, or in the lives of the children the subject of the proceedings. Absent such adverse inferences, it was submitted that the learned Federal Magistrate would have been precluded from concluding as he did with respect to the children’s best interests.
It was thus submitted that whilst the lack of evidence from Mr J had been a matter of significance in the proceedings before the Federal Magistrate, the absence of such evidence could not now be seen as significant, as the mother is no longer in a relationship with Mr J.
On behalf of the paternal grandmother it was submitted that, although “clearly relevant to this Court if this Court were disposed to allow the appeal and consider substituting its own decision, or to another Court, if this Court were to order a rehearing”, the further evidence, if accepted, would not have the effect discussed by the High Court in CDJ (supra).
In support of his opposition to the mother’s application, Counsel for the paternal grandmother relied upon paragraph 114 of the majority judgment in CDJ in which it was said:
114.No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration.
In oral submissions, both counsel for the paternal grandmother and counsel for the Independent Children’s Lawyer submitted that the new evidence sought to be adduced by the mother did not demonstrate error on the part of the learned Federal Magistrate, but reinforced his conclusion with respect to the stability of the mother’s living arrangements. Counsel for the ICL submitted:
The fresh evidence that she (the mother) puts before the Court or the new evidence, I should say, highlights that she is not stable, that she is not in a happy relationship and the matters that she presents in those paragraphs. So far from the mother's fresh material assisting the applications that are agitated in that regard, they would give the Court ground for circumspection.
The learned Federal Magistrate recorded the wife’s case with respect to Mr J in the following paragraphs of his judgment:
155.It is [the mother’s] case that she was able to secure some accommodation for herself on a rural block at [H] about three weeks later. Initially, she was living in a small cabin but has now moved to a larger demountable located on the same property. Mr [J] is now living in the cabin. [The mother] has been living at the [H] property since the latter part of November 2007. It is her case that she is happy and well settled there.
156.Mr [J] is not working at present. The demountable concerned has two bedrooms, as well as kitchen, bathroom and toilet. [The mother] and [M] and [V], when they are with her, sleep in [the mother’s] queen sized bed. There is another single bed in the room and a cot for [S]. [The mother] acknowledges that space is tight but says everyone “squeezes in”.
157.Initially, [the mother’s] landlord was a little reluctant to rent to a single parent but he is apparently happy at how [the mother] has looked after the property and paid the rent. As such, he was content to allow [the mother] to move from the small cabin into the larger demountable on his property. When she moved, [Mr J] was able to move into the cabin, which she had vacated.
158.Accordingly, although [the mother] and [Mr J] live on the same property, they do not share the same dwelling. [The mother] has said that [Mr J] did not participate in this case because “he did not want to get involved as he has issues with [the father]”.
The learned Federal Magistrate also recorded:
228.Ms [P] did not doubt [the mother’s] assertion that she was now in a position to offer [M] and [V] a safe and violence free home. However, like me, Ms [P] was concerned at Mr [J’s] unwillingness to speak to her and be involved, in any way whatsoever, with these proceedings.
Significantly for present purposes, his Honour had earlier recorded:
69.[The paternal grandmother] points to the fact that it is uncertain how long [the mother] and [Mr J] will remain in a relationship together. In addition, [Mr J] himself is something of an unknown quantity, as he chose neither to take part in the current proceedings nor to provide any evidence to the court in this case.
Later, his Honour also recorded:
230.Although like Ms [P], I am impressed with [the mother’s] efforts in obtaining her home at [H], I share these concerns that [the mother] is still not able to provide [M] and [V] with the same level of stability and continuity, which [the paternal grandmother] has.
231.Mr [J] is an important component of what [the mother] asserts is the new direction in her life. However, at a fundamental level, I am not able to assess this aspect of the mother’s case because of the absence of Mr [J]. In my view, it is a very significant deficit indeed.
When considering the best interests of the children in the context of the statutory provisions of Part VII, his Honour reiterated:
310.It is [the mother’s] case that, since moving to [H] in early January of 2007, she has turned a significant corner and her life is now a more stable and functional one. I must make some assessment of the truth or otherwise of this assertion. This is difficult in the absence of any input or evidence whatsoever from Mr [J].
He also recorded:
314.The only things I know of [Mr J] are what [the mother] herself tells me. He is thirty-seven years of age. He was born in Tasmania but has lived in the Northern Territory for most of his life. He does not identify as an Aboriginal person.
As a reading of the paragraphs of the learned Federal Magistrate’s Reasons for Judgment thereafter confirms, to the extent that the uncertainty surrounding the mother’s relationship with Mr J featured in the exercise of his discretion, it did to only a limited extent. Other matters, which the learned Federal Magistrate examined in considerable detail relating to the children’s stability, attachments and identity assumed greater significance than did the nature of the mother’s relationship with Mr J.
Other than to the extent that we have identified, we are unable to discern any finding critical of Mr J. Those findings were adverse only in the sense that Mr J having not participated in the parenting proceedings, nothing relating to him could assist the mother’s case. On balance, save to the extent the passages to which we have referred reveal it, Mr J does not appear to have assumed significance in the determination of the case by the learned Federal Magistrate.
Accepting the evidence now advanced by the mother would not in our view render erroneous the decision of the learned Federal Magistrate. This is partly because the findings of fact made by the learned Federal Magistrate with respect to the mother’s domestic circumstances. The learned Federal Magistrate’s reasons suggest that the essential issues in the case remained the same, whether or not Mr J was part of the Mother’s life. His Honour did not draw adverse inferences with respect to the major issues in the case in reliance upon Mr J’s non-participation in the case. All his Honour really said, correctly in our view, was that the mother’s case could not be strengthened by reason of her relationship with Mr J. Had his Honour made adverse findings about Mr J or his relationship with the mother, we may have concluded differently.
The further evidence vindicates the reservations Ms P and the learned Federal Magistrate expressed with respect to the stability of the mother’s relationship with Mr J. With respect to the mother, the further evidence removes one area of uncertainty in relation to the stability of her living arrangements, only to replace it with another, possibly even more significant area of uncertainty. As Counsel for the paternal grandmother and counsel for the Independent Children’s Lawyer submitted, the further evidence, if accepted, would demonstrate further instability in the mother’s life.
Accordingly, on either of the two bases we have indicated, we would not admit the further evidence urged on behalf of the mother.
The Independent Children’s Lawyer’s Application to Adduce Further Evidence
At the commencement of the hearing this application was also consented to by the parties. However, to the extent that the application was then pressed, that, sensibly, was with little enthusiasm. We do not consider that, if admitted, the evidence would have the effect for which it was presumably sought to be relied upon, namely of supporting the Judgment of the Federal Magistrate. Why that is so will become more apparent when certain of the grounds of appeal agitated on behalf of the mother are considered.
The Grounds of Appeal
Counsel for the mother, sensibly in our view, abandoned Grounds 1 and 7 of the mother’s Amended Notice of Appeal.
As argued, the challenges raised on behalf of the mother fall within three broad categories. The first of those, which finds expression in Ground 2 of the Amended Notice of Appeal asserted that the learned Federal Magistrate erred in his interpretation and application, of the provisions of section 60CC(3)(c) of the Act.
The second group of challenges, which Counsel identified as being articulated in Grounds 3, 4, 5 and 6, can be described as relating to the issue of the children’s “Aboriginality”.
The third challenge, articulated in Ground 8 of the mother’s Amended Notice of Appeal, related to Orders 6 and 7 made by the learned Federal Magistrate and which provided firstly that the father only spend time with the children with the consent of and under the supervision of the paternal grandmother (Order 6(a)), secondly, notwithstanding other orders made by him, in effect reserved to the paternal grandmother the power to allow the father to spend unsupervised time with the children, in the absence of compliance with conditions which was a precondition to the father otherwise spending unsupervised time with the children (Order 6(b)), and thirdly provided for the father to spend time with the children after he had completed courses as agreed between the paternal grandmother and the father (Order 7).
The Section 60CC(3)(c) challenge
Ground 2 of the mother’s Amended Notice of Appeal provided:
(2)The Federal Magistrate failed to properly consider the paternal grandmother’s failure to encourage the relationship between the children, the mother and maternal family.
The submissions in support of this challenge were brief. We do not say that critically. Rather than attempt to paraphrase them, it is preferable to set out the submissions made on behalf of the mother in support of this challenge, which provided:
32.The learned magistrate having found that the appellant mother recognized the importance of the father [sic] having a “close relationship” with the father (355) then misconstrued the consideration of s 60CC(3)(c) by applying that provision to the mother and paternal grandmother and not to the parents and therefore committed an error of law (paragraphs 349 – 358).
33.The applicability of these concerns between the mother and grandmother is nonetheless relevant and the learned magistrate found that none of the “relevant parties is significantly better placed to ensure that the children’s important relationships are fostered and encouraged” but having found the abovementioned facts concerning the mothers attitude towards the father was again in error.
On behalf of the paternal grandmother it was submitted in response to this challenge that:
23.…
(a)paragraph 32 SAM – although s.60CC(3)(c) refers only to parents, had the Federal Magistrate failed to consider the paternal grandmother’s role, both as facilitator and facilitatee, of relationships between the children and parents (and those in loco parentis), then he would have failed to consider important factors relevant to the children’s best interests. Whether it was formally considered by the Federal magistrate under (3)(b)(ii), (3)(c), (3)(f)(ii), 3(i) or 3(m), the matter needed to be considered. There is no error of law.
Counsel for the ICL submitted:
17.The s.60CC considerations, like the antecedent s 68F(2), are not objective standards. Indeed, the s60CC 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)).
18.Furthermore, determining best interests by reference to the s60CC signposts and that broad enquiry it involves must embrace the fact that:
“It is a mistake to think that there is always only one right answer to the question of what the best interests of the child require…best interests are values, not facts” (CDJ & VAJ (1998) 197 CLR 172 at 219).
19.To hold up one of the s60CC considerations alone, and submitting His Honour erred in making a broad enquiry as to the children’s best interest, is to misconstrue to role and application of s60CC itself.
Section 60CC of the Family Law Act stipulates as a primary consideration when determining a child’s best interest:
2 (a)the benefit to the child of having a meaningful relationship with both of the child's parents
Additional considerations for that purpose include:
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);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs.
We are not persuaded that references to “parent” in s 60CC of the Act can encompass persons, including grandparents, who are not “parents”. There has, sensibly, been no challenge to the power of the learned Federal Magistrate in this case to make parenting orders in favour of the paternal grandmother, notwithstanding that she is not a “parent”, or that such an order results from a “primary consideration” which refers to “parents”, and “additional considerations” which, in the main, refer to “parents”. The construction urged on behalf of the mother could produce perverse outcomes, quite inconsistent with the best interests of the children. This case provides an example of how that may arise given the learned Federal Magistrate’s generally negative findings with respect to the father, and generally positive findings with respect to paternal grandmother.
It would be surprising, and illogical, if “parent” could have the extended meaning which it clearly has for the purpose of making substantive orders, but be constrained in the way submitted on behalf of the mother, for the purpose of considering whether or not such an order was in the best interests of a child the subject of proceedings. In the absence of compelling reasons for doing so, and none has been advanced, we are unable to accept the submissions of Counsel for the mother.
This part of the challenge lacks substance. It remains to consider the second part of the challenge.
The written submissions of Counsel for the mother do not advance the complaint that the learned Federal Magistrate “failed to properly consider the paternal grandmother’s failure to encourage the relationship between the children, the mother and the maternal family”. Nor did Counsel’s oral submissions on the hearing of the appeal. With respect to anything that Counsel for the mother may have submitted, the learned Federal Magistrate’s Reasons for Judgment leave no room for doubt that he carefully considered the matter to which this challenge relates.
The learned Federal Magistrate commenced his consideration of this issue by reference to the Family Consultant’s report. His Honour recorded the matters which the Counsellor had identified as “central” issues in the case. They included whether the paternal grandmother was “racist or a person who holds racist views” and “if so, what will be the impact of [M] and [V] of these attitudes and how can the children be protected from them”.
His Honour recorded:
206.[The paternal grandmother] has confirmed that she does not get on at all well with [the mother]. More concerningly, [the paternal grandmother] has acknowledged that she has told [M] and [V] that she does not get on with the children’s mother. Without doubt, both [M] and [V] must be well aware of the poor relationship between [the paternal grandmother] and [the mother].
Having accepted that the paternal grandmother was not “racist”, his Honour found:
210.However, that is not to say that I think [the paternal grandmother] is incapable of being passively dismissive of the Indigenous aspects of the children’s background. It is clear to me that [the paternal grandmother] regards [the mother] as being feckless, dishonest and lacking in application, so far as the care of her children is concerned.
211.As such, it is not a large step to think that she will also, either consciously or unconsciously, allocate such attributes to the wider, generalised Indigenous community and the children will be aware of this. This may have implications for the children’s own sense of identity.
212.As previously indicated, relatives of [the mother] are neighbours of [the paternal grandmother]. The children told Ms [P] that they are no longer allowed to play with the neighbours children or refer to her as “Nana”. I am concerned that [the paternal grandmother], through her poor attitude towards [the mother], is driving the dichotomy between the maternal and paternal aspects of [M] and [V’s] family. In the context of the Indigenous background of the children, this cannot be a good thing, particularly in terms of their development of a positive self identity.
215.Overall, Ms [P’s] assessment of [the paternal grandmother] and her level of input in the children’s sense of connection to the Indigenous aspects of their family was that she neither actively encouraged nor actively discouraged these aspects of the children’s lives. Ms [P’s] sense was that the children felt good about their background, and there was no evidence that [the paternal grandmother] was actively dismissive of it.
Later in his Reasons for Judgment, when “determining [M] and [V’s] best interest”, the learned Federal Magistrate recorded:
295.In [the mother’s] case, she places particular emphasis on the children having a meaningful relationship with her through being involved in enjoying the common aspects of their Tiwi culture together. It is her case that this is the best means of the children having such a meaningful relationship with her and, if the children remain living with [the paternal grandmother], inevitably the children’s relationship with her will not reach its full potential.
Later his Honour reiterated:
352.Again, in my view, this is one of the more significant considerations in this case. The children have lived with [the paternal grandmother] since Easter of 2006. This arrangement was not of her choosing. It came about because of the chaotic and difficult circumstances prevailing in [the mother’s] life at the time.
His Honour thus concluded:
358.As such, I do not think any one of the relevant parties is significantly better placed than any of the others to ensure that the children’s important relationships are fostered and encouraged. Whatever is the outcome, [M] and [V] will have the impression that the various aspects of their family are fractured.
Under the heading “Aboriginality”, the learned Federal Magistrate recorded:
374.From [the mother’s] point of view, if [M] and [V] live predominantly with [the paternal grandmother], this outcome will significantly impinge upon the right of the children to enjoy and participate in this central cultural aspect of their lives and identities.
375.Pursuant to section 60CC (6), this right includes the right to maintain a sense of connection with that culture; and to be able to explore and appreciate it in positive and concrete ways. This appreciation must be positive in its connotations.
376.Again, it is [the mother’s] case that [the paternal grandmother], at best, has a shallow and second hand appreciation of Aboriginal culture, particularly Tiwi culture, or at worst is likely to be actively undermining of the children’s Aboriginal background because of her own racist orientation.
377.As such, if the children remain in her care, [the mother] fears that there will be very real risk that the children will not have a positive appreciation of their background, which will, in the longer term, have significantly detrimental consequences for the children’s perception of their identity and worth.
Later, his Honour recorded that: -
394.[M] and [V] have a bond with their mother, which was formed in their earliest infancy. This bond has been weakened but not extinguished, as a result of what occurred after Easter of 2006. In its place, the children have formed a significant attachment to [the paternal grandmother], who does not share the children’s Indigenous background and is unlikely ever to play an active role in it, both because of her own cultural orientation and personal inclination.
The issue was further considered in the following paragraphs of his Honour’s Judgment.
398.This is the nub of this difficult case. I do not think [the paternal grandmother] is a racist. She undoubtedly loves the two children concerned deeply, a love which is unaffected by their background. However, at both a deep emotional level and practically, she does not understand what it is to be Aboriginal. [The mother] and her family do. [M] and [V] are and will remain Aboriginal children. As a result, at one level, in spite of her love for the children, [the paternal grandmother] will be unable to empathise with the societal position likely to be occupied by [M]and [V] and provide for them completely in this regard.
399.I am also concerned that because of her undoubted antipathy for [the mother], [the paternal grandmother] will find it difficult to support the children’s sense of connection to their Indigenous background. In addition, she may unwittingly fall into the error of communicating stereotypical views to the children about Aboriginal people in general. As a result, I remain concerned that there is a very real possibility of [M] and [V] suffering some form of identity crisis, as they move from childhood to adolescence and beyond.
400.The issue in this case is how best to balance [M] and [V’s] undoubted need for security and reliability and their emotional attachments and other matters related to their care, with their right to maintain and enjoy strong cultural connections. It is not a balance which falls easily into place in my mind.
Whatever the fate of other challenges to the learned Federal Magistrate’s exercise of discretion, the numerous and detailed references to the subject of this complaint in his Reasons for Judgment preclude accepting that inadequate regard was had to the paternal grandmother’s attitude to the relationship between the children and their mother and the maternal family. The number of places in his reasons where this is addressed, and the importance which this issue clearly assumed in his Honour’s thinking deny this challenge success.
Grounds 3, 4, 5 and 6
As stated earlier, Grounds 3, 4 5 and 6 were argued together and provided:
(3)The Federal Magistrate gave insufficient weight to the children’s Aboriginality.
(4)The Federal Magistrate gave insufficient weight to the children’s need to identify as members of the Tiwi culture and the effect this would have on the children.
(5)The Federal Magistrate failed to properly consider the paternal grandmother’s failure to encourage the children to [sic] identify as members of the Tiwi culture.
(6)The Federal Magistrate gave insufficient weight to the evidence of the maternal grandmother in regard to the children’s Tiwi identity and heritage.
Although not readily apparent from the terms of these grounds of appeal, as the written submissions of Counsel for the mother make clear, and his oral submissions make even clearer, it was asserted on behalf of the mother that the learned Federal Magistrate erred in deciding the proceedings in the absence of anthropological evidence with respect to the children’s Aboriginality. Counsel for the mother submitted that the “fact that there was no anthropological evidence led his Honour to fail to properly consider this impact of the case”. That assertion was sought to be advanced by reference to a number of decided cases.
It was fairly conceded by Counsel for the mother that no-one had ever asked the learned Federal Magistrate to adjourn the proceedings in order that anyone might adduce anthropological evidence. Nor was his Honour ever requested to direct the ICL to seek to obtain such evidence for his assistance. In those circumstances, it would be surprising if this challenge could succeed.
Counsel for the mother referred the Full Court to the decision of the Full Court in In the Marriage of B and R 19 Fam LR 594, in support of his contention that, the trial Judge should have sought anthropological evidence with respect to the children’s Tiwi identity and heritage, or that the ICL should have sought to adduce such evidence. In B and R the Full Court said at page 624:
Whilst many of the matters to which we have referred above are now so notorious that it would be expected that a trial judge would take judicial notice of them, nevertheless, we think that in future cases involving the custody of an Aboriginal child it would be expected that these issues would be explored and evidence provided especially about their significance in the particular case. We do not consider that a matter such as this should be decided on the basis of the general, more personal, views and experience of the judge in question. This is a specific issue in the custody of Aboriginal children which requires delicate and professional handling to ensure that all aspects of it are considered and that the interests of the child, especially long term, are taken into account. This material is partly constituted by readily accessible public information of which it would be expected that a trial judge would inform himself or herself, but it would also be important, at least for the predictable future, for the detail and thrust of that material to be marshalled and presented to the court by an appropriately qualified expert so as to avoid the risk that the case may turn upon varying degrees of individual knowledge. That approach accords with the way in which this evidence has been presented in the more recent of the Australian cases referred to above.
It is in our view significant that the Full Court referred to evidence by “an appropriately qualified expert”, rather than suggesting that such expert should, or was required to be an anthropologist, or an expert in any other particular field of learning. Nor did the Full Court suggest that the ICL was so constrained.
The Full Court said with respect to the role of the ICL (styled the “separate representative” by the Act at that time) that:
Consequently, in such cases it would be expected that a separate representative would be appointed at an early stage and that one of the responsibilities of the separate representative would be to examine these issues and ensure that all relevant evidence and submissions are placed before the court. That is not to say that the task lies exclusively or even primarily with the separate representative or that the parties should not be expected to put forward evidence relating to this. However, it is obviously a matter which goes to a central aspect of the separate representative's role in a case like this and it would need to be approached in that way.
In this case, it is clear that evidence from “an appropriately qualified expert” with respect to the children’s Tiwi identity and culture, namely, the maternal grandmother, was adduced in the mother’s case. Unless it be demonstrated that such evidence was deficient, or that there was more appropriate evidence which could have been adduced, we do not consider that the learned Federal Magistrate or the ICL could fairly be criticised. Nor could we conclude that his Honour erred in the manner this complaint asserts.
Counsel for the mother also referred the court to the judgment of Young J in Davis & Davisand Anor 92008) 38 Fam LR 671. We do not perceive anything emerging from his Honour’s judgment in that case that advances the issue of the necessity for, or desirability of anthropological evidence. In our view, the significance of Young J’s decision lies more in relation to the challenges to the weight given by the learned Federal Magistrate to the evidence of the maternal grandmother with respect to the children’s Aboriginality, than to anything pertaining to anthropological evidence.
In Davis & Davisand Anor (2008) 38 Fam LR 671; [2007] FamCA 1149 Young J said:
77.In B & F [1998] FamCA 239, Moore J considered the scope and meaning of the term "connection". At 29-30 her Honour stated:
As I see it, the requirement to maintain a connection to their lifestyle, culture and traditions involves an active view of the child's need to participate in the lifestyle, culture and traditions of the community to which they belong. This need, in my opinion, goes beyond a child being simply provided with information and knowledge about their heritage but encompasses an active experience of their lifestyle, culture and traditions. This can only come from spending time with family members and community. Through participation in the everyday lifestyle of family and community the child comes to know their place within the community, to know who they are and what their obligations are and by that means gain their identity and sense of belonging. [My emphasis]
78.Stephen Ralph in his article (above), which was published prior to the 2006 amendments, favourably discusses the views of Davis and Dikstein as expressed in their article "It Just Doesn't Fit" published in 1997 in 22(2) Alt L J 64. At p 141 Ralph says:
...Davis and Dikstein believe that the terminology "to maintain a connection to culture" denotes a more active view of the child's need to participate in Aboriginal lifestyle, culture and customs. According to this view the child's need to maintain a connection to culture goes beyond a simple need for information and knowledge to encompass an active experience of the lifestyle, culture and traditions of Aboriginal people. This experience of Aboriginal culture can only be afforded to the child if they are able to have, at the very least, direct physical contact with their Aboriginal family and kin.
79.The 2006 amendments strengthened the language of the provisions in relation to the cultural needs of indigenous children. They introduced a specific right of the child to, inter alia, "explore the full extent" of his or her culture and "to have the support, opportunity and encouragement necessary" to do so. A child of Aboriginal heritage also has the right to "develop a positive appreciation of that culture". The previous legislation required the court to consider "the need" of an indigenous child to maintain a connection with his or her culture. By comparison, the new language creates a far greater imperative for the court to give consideration to issues of culture. Certainly, the 2006 amendments imbued the notion of "connection" with a stronger and more active meaning.
As the paragraphs of his judgment to which we have already referred confirm, the learned Federal Magistrate was acutely aware of the need for the children to maintain a real connection with their Tiwi culture, and to avoid them “simply receiving information and knowledge about their cultural background in a tokenistic or meaningless way”. His Honour informed himself with respect to these issues through the evidence of the maternal grandmother. As his reasons for judgment clearly reveal, the dilemma which confronted his Honour, as he clearly appreciated, was balancing the entitlement of the children to a real connection with their Tiwi culture against other issues in the case, and particularly those relating to the stability of the children’s living arrangements.
There was no anthropological evidence before the learned Federal Magistrate, as his Honour observed. However, his Honour had the benefit of evidence from the maternal grandmother, a Tiwi Elder. Whilst the maternal grandmother was, for reasons which his Honour recorded, understandably less than entirely impartial, she was able to, and gave extensive evidence with respect to what was broadly described at trial and before us as “Aboriginality”. It is clear that the learned Federal Magistrate accepted the maternal grandmother’s evidence in relation to those matters, save in one respect, which we do not consider related to the factual aspects of Aboriginality to which she deposed. There is no suggestion that it was other than open to his Honour to accept what the maternal grandmother said about Aboriginality.
It is instructive to set out in its entirety what his Honour recorded, in reliance upon the evidence of the maternal grandmother:
235.[The maternal grandmother] has had a long and remarkable life because of the changes which she has seen during it. She herself speaks Tiwi and speaks this language to [M] and [V], when they are with her. [The mother] also speaks Tiwi with her mother.
236.Because of her age, [the maternal grandmother] has many stories to tell the children, both from her own life and from deeper tradition. I accept that she is a rich and irreplaceable source of language and cultural tradition for the children. Given her age, she is obviously not an unlimited resource, in this regard.
237.[The maternal grandmother] deposed that her family regularly attended funerals and other ceremonies on the Tiwi Islands. It is her view that [M] and [V] need to understand Tiwi so they can take part in these ceremonies and relate to their extended family, who live on the Tiwi Islands.
238.I accept that [the maternal grandmother] has a major role to play in fostering [M] and [V’s] sense of connection to the Tiwi Islands and learning its language and culture. I accept that these matters are likely to be important to the children’s ongoing sense of identity.
239.[The maternal grandmother] is concerned that weekend periods will not be sufficient for her to be able to impart this cultural knowledge to the children or for [M] and [V] to establish strong relations with their two older and two younger half siblings.
240.Above all, it is [the maternal grandmother’s] position that very many aspects of Tiwi culture, particularly skin relationships and hunting and fishing practices cannot be indirectly taught but must be learnt through total immersion in the cultural milieu appropriate. It is the fundamental underpinning of [the maternal grandmother’s] evidence that this will not occur if the two children concerned continue to live with [the paternal grandmother].
241.[The maternal grandmother’s] evidence is very important in the overall disposition of this case. It is her evidence that the children’s cultural background is fragile and may be very well irretrievably lost to them, if the court does not take proactive steps now. Mr Allen, in particular, points to the fact that Ms [P] did not have an opportunity to consider this aspect of the case closely and does not have particularly extensive experience in assessing Indigenous children’s needs.
The learned Federal Magistrate said of the evidence of the Family Consultant, Ms P: -
242.Ms [P] is not an anthropologist. She has some experience of working with Indigenous children because of the period of time during which she has been employed in the Northern Territory. In the past she has consulted with Mr Ralph, a very experienced psychologist in the area of Indigenous children.
243.No specific expert anthropological evidence was provided in this case. No doubt there were pragmatic reasons for this. I do not think Ms [P’s] lack of anthropological qualifications should act as a factor which should cause me to discount her evidence generally. Nor should I under-estimate the cultural factors because of a lack of specific expert evidence.
Against that background his Honour concluded that:
244.As a Tiwi Elder, [the maternal grandmother’s] experience and knowledge must be respected. However, for obvious reasons, she cannot be regarded as an impartial witness. At the end of the day, the children’s background and heritage, although highly important, is one factor amongst many which must be weighed and assessed. [The maternal grandmother’s] evidence is central in this regard.
When considering Aboriginality in the context of determining the best interests of the children, the learned Federal Magistrate again referred to the evidence of the maternal grandmother, and said:
383.Pursuant to section 61F of the Act, I am directed to have regard to any kinship obligations and child rearing practices relevant to the culture from which [M] and [V] spring. The affect of [the maternal grandmother’s] evidence is that she has a number of obligations towards these children, who will be required to know about and to participate in Tiwi cultural practices, particularly those related to funerals and other ceremonies. The children will need to learn about these matters from her primarily and other senior Tiwi relatives. For obvious reasons, [the paternal grandmother] is incapable of fulfilling these obligations.
Clearly in reliance upon the maternal grandmother’s evidence, his Honour found:
384.I did not hear any expert evidence about these matters but I accept that the Tiwi culture is a live and vibrant one. Clearly, there are many Tiwi people living in both the Top End of Australia and on the Tiwi Islands themselves, to whom [M] and [V] are related in one way or another.
385.These people continue to hunt, fish and gather food in a largely traditional manner. They continue to speak the languages of their ancestors and to hand on ceremonies inherited from them, albeit those ceremonial practices have been changed by exposure to Christianity and other European influences. However, these people cannot be said to have been assimilated into the Australian cultural mainstream.
His Honour summarised, accurately there is little doubt, the critical issue raised by the evidence before him in the following terms:
400.The issue in this case is how best to balance [M] and [V’s] undoubted need for security and reliability and their emotional attachments and other matters related to their care, with their right to maintain and enjoy strong cultural connections. It is not a balance which falls easily into place in my mind.
His Honour also said:
402.From [the mother’s] and [maternal grandmother’s] perspective, such an outcome will be tokenistic and fraught with all manner of difficulties. From their point of view, [M] and [V] will only regard themselves as Tiwi if they are totally immersed in its culture, language and traditions. This can only come about if the children live predominantly within a Tiwi orientated household.
The learned Federal Magistrate further recorded:
416.As Ralph has observed, the transmission of Aboriginal culture, from generation to generation, is highly influential in determining a child’s best interests, from the Aboriginal perspective. This was the import of [the maternal grandmother’s] evidence. I consider that [M] and [V] will be able to be part of this transmission of knowledge and culture, notwithstanding that they live with [the paternal grandmother] during the school week.
Nothing emerging from the learned Federal Magistrate’s Reasons for Judgment suggests or implies that his Honour was in any discernable way prevented or impeded in his determination of the best interests of the children the subject of the proceedings before him by the absence of anthropological evidence.
The evidence of the maternal grandmother provided an extensive insight into the Aboriginality issue which was so pivotal to the determination of the case before the learned Federal Magistrate. There was no suggestion before his Honour that the evidence of the maternal grandmother inadequately revealed or explained Aboriginality. Nor has there been any suggestion of that kind before us.
The learned Federal Magistrate did not accept the maternal grandmother’s opinion that only by living in a Tiwi community could the children properly pursue their cultural connection, or that the children could not fulfil their entitlement to their identity and cultural heritage if they lived with the paternal grandmother. His Honour otherwise accepted the expert opinion evidence given by the maternal grandmother. He did not accept her conclusion as to the impact of that evidence on the issue which he was required to decide. As his Honour clearly recognised, determining how the best interests of the children would be served was his task, and had to be undertaken in the light of the legislative provisions which he was obliged to observe. The maternal grandmother’s expert opinion in relation to the children’s connection to their Tiwi culture was, of great importance, but one of numerous matters which his Honour was obliged to consider. His Honour’s rejection of the maternal grandmother’s opinion that only by “total immersion” in Tiwi culture could the children’s connection to culture be preserved did not constitute rejection of the maternal grandmother’s evidence in relation to matters of Tiwi identity and culture. It is also to be remembered that the mother did not propose that the children would live in a Tiwi community.
With all due respect to anthropologists, the suggestion that the proceedings were in some unspecified way deficient because of the absence of anthropological evidence is, in the circumstances of this case, somewhat disingenuous. It could be asked rhetorically, and was during the course of the hearing of the mother’s appeal, what better evidence could the learned Federal Magistrate have had with respect to Tiwi identity and culture than the evidence of a Tiwi Elder such as the maternal grandmother. That is particularly so given that, to the extent that the maternal grandmother was less than entirely impartial, that was not suggested to have undermined the reliability of the evidence given by her, or his Honour’s acceptance of it. In any event, an anthropologist would undoubtedly have been significantly reliant upon information provided by a Tiwi Elder like the maternal grandmother for the purpose of any evidence he or she might have given in relation to Aboriginality.
Whilst there may be cases where anthropological evidence is of assistance, we question the extent to which that could realistically be so when, as occurred in this case, there is available expert opinion evidence from an Elder of a particular Indigenous group or society. It is to be remembered that the cultural heritages of the hundreds of Indigenous tribes in this country vary significantly, and that the culture is preserved and passed on by the Indigenous Elders to whom it is entrusted, via the oral tradition. Thankfully, it is now generally accepted in Australia that Aboriginal peoples can speak for themselves, particularly in relation to their own culture and traditions. The potential for non-Aboriginal Euro-centric impressions or interpretations to usefully inform Courts in relation to Aboriginality must now be limited in ways it was not in earlier times.
The thrust of the submissions on behalf of the mother in relation to the remainder of these challenges, variously expressed, was that the learned Federal Magistrate gave insufficient weight to the evidence in relation to Aboriginality. As our earlier review of the learned Federal Magistrate’s Reasons for Judgment reveals, and the submissions of Counsel in the appeal confirm, the central issue in the case before the learned Federal Magistrate was whether issues of Aboriginality favouring the mother outweighed issues of stability which were found to favour the paternal grandmother. In a very carefully reasoned and balanced Judgment, the learned Federal Magistrate considered these competing and multifaceted issues.
It is significant that the exercise of discretion has not been suggested to have been vitiated by the failure to have regard to any relevant fact or circumstance. Nor has it been suggested that his Honour had regard to irrelevant facts or circumstances. Nor has it been submitted that the exercise of discretion was in reliance upon material errors of fact.
As the submissions of Counsel for the mother frankly acknowledged, the mother’s challenges being to the weight which the learned Federal Magistrate gave to the facts as found by him, appellate intervention could not readily be enlivened. The learned Federal Magistrate’s recognition of the importance of the children’s Aboriginality, and the detailed consideration he gave it in his Reasons for Judgment render appellate intervention even more problematic.
In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-20:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
A brief recounting of his Honour’s cogent reasoning process demonstrates that, he may have come to a different conclusion without thereby being in error. That however is not the test for present purposes. It has not been demonstrated that the conclusion the learned Federal Magistrate reached was not reasonably open to him, or that he unreasonably gave inadequate or excessive weight to any relevant fact or circumstance. His Honour clearly, and appropriately, gave the evidence of the maternal grandmother in relation to the children’s Aboriginality and need for “total immersion” substantial weight. We are not persuaded that, in a finely balanced dispute, those factors were given inadequate weight.
Ground 8
Ground 8 asserted:
(8)The Federal Magistrate erred in making orders six (6) and seven (7) providing for the paternal grandmother to be the sole decision maker as to when and upon what conditions the father is to have time with the children.
It was submitted on behalf of the mother that:
(4)The learned Federal Magistrate further required the father to undergo a course of alcohol counselling (Order 4) and anger management course (Order 5) and until compliance with those orders only spend time with the children with the consent of and under the supervision of the paternal grandmother (Order 6 (a)). This order is subject to the exception that the paternal grandmother may waive the requirement for the supervision during daytime periods if she is satisfied that the father has not been consuming alcohol and does not intend to whilst the children are in his care.
(5)The learned magistrate further ordered that upon completion of the courses the father may spend time with the children as agreed between the paternal grandmother and father (Order 7).
(6)It is an error of law by the learned magistrate to grant the mother joint decision making authority with the paternal grandmother concerning long term decisions and providing the paternal grandmother with sole decision making concerning the fathers access to and time with the children in light of the learned magistrates findings with respect to the father and the care, welfare and development of the children of a long term nature. This is inconsistent with the mother’s right to make joint decisions about the care, welfare and development of the children.
(7)This is so because the learned federal magistrate has found that the father should not have parental responsibility for the children nor live with the father nor spend time with their father subject to Orders 6 and 7 because of findings concerning violence towards the mother and paternal grandmother in the presence of the children and the abuse of alcohol. The learned federal magistrate made findings that there was potential if not the present reality of “significant emotional harm” caused to the children by the father and that the presumption of shared responsibility was rebutted because of his violence. These are issues that clearly concern the long term care, welfare and development of the children.
For reasons which the learned Federal Magistrate articulated, and which provided abundant support for so doing, his Honour ordered that:
(4)The father commence such course of alcohol counselling as is recommended to him by the Independent Children’s Lawyer within four (4) months of the date of these orders and continue with such alcohol counselling until such time as the alcohol counsellor concerned provides written notification that in the aforesaid alcohol counsellor’s professional opinion such counselling is no longer of assistance to the father.
(5)The father commence to undertake such anger management course as is recommended to him by the Independent Children’s Lawyer within four (4) months of the date of these orders and complete the necessary classes entailed in such an anger management course.
There has been no complaint with respect to either of those orders. The contention on behalf of the mother is that Order 6(b) which his Honour made is inconsistent with those orders, and the findings of fact which led to their making. In essence, if, as all parties accept, the evidence before him provided sufficient basis for making Orders 4 and 5, that same evidence was submitted to have precluded the learned Federal Magistrate from making Order 6(b).
Counsel for the parties before us frankly conceded that they were unable to suggest how Order 6(b) came to be made. It was common ground that, whilst his Honour’s Reasons for Judgment dealt comprehensively with the numerous other and complex issues in the case, it did not reveal the reasoning process which led his Honour to make Order 6(b).
In his Judgment, the learned Federal Magistrate made a number of essentially adverse findings of fact with respect to the father. Early in his judgment, his Honour recorded the position of the ICL to be that:
49.Ms Giacomo also supports an outcome, which would see [the father] spending only supervised time with the children, until he has completed a course of anger management and alcohol counselling. Ms Giacomo submits it is appropriate that [the paternal grandmother] provides the necessary supervision.
Relevantly for present purposes, his Honour later recorded:
165.[The paternal grandmother] does not dispute that there was an ugly incident between her and [the father] in November of 2007, to which both children were witness. She however disputes that this is one of many such incidents between her and [the father] and rejects the suggestion that she did not behave appropriately in respect of it and can be taken to have either condoned or excused [the father’s] behaviour.
166.[The paternal grandmother] was a laconic and phlegmatic witness. I do not doubt that she has had, at times, a very difficult life. She deposed that from her own experience, she knew what a “terrible thing” family violence was. She confirmed that [the father] had sworn at her in the past and assaulted her by pushing.
167.She also confirmed that, to her knowledge, [the father] had threatened [the mother] with violence and had injured her. She also confirmed that [the father] had a history of cannabis use, culminating in him receiving a suspended prison sentence of eighteen months for cultivating a commercial quantity of cannabis. This sentence was imposed by the Supreme Court of the Northern Territory on in December 2005.
168.It is also the case that [the father] was involved in a violent altercation, with police, in October of 2007. This incident resulted in [the father] being charged with assaulting police. It occurred after [the father] had been drinking.
170.My impression of [the father] is that he has a volatile temperament. On one occasion, during the hearing of the proceedings, he lost his composure, during an aspect of the evidence which dealt with his behaviour. He began to leave the court room in an agitated manner. I prevailed upon him to stay and he calmed down. I have no doubt that, when under the influence of alcohol his temperament is far more violent and unpredictable.
171.[The mother] too obviously knows [the father] very well indeed and has been subject to his violent behaviour in the past. It is her case that the two or three incidents, of which [the paternal grandmother] complains, are “the tip of the iceberg” so far as her experience of [the father’s] behaviour is concerned.
173.On balance, I accept her evidence that there have been two or three prior occasions, when [the father] has been violent towards her, of which the last incident in November of 2007 was the most serious. I also accept that [the paternal grandmother’s] account of what occurred is likely to be the most reliable one.
Ultimately, his Honour said:
425.As such, I am satisfied that the children will most likely be protected from exposure to family violence, if they remain living with [the paternal grandmother]. For the reasons already given, I have grave concerns about [the father’s] past behaviour and the level of his insight into the consequences, for others, of his past violent behaviour. As such, at this point, I agree with Ms Giacomo and [the mother] that any time he spends with [M] and [V] should be supervised.
In the absence of reasons reconciling Order 6(b) with the other orders made with respect to the father, and there are none, Order 6(b) is inconsistent with the terms of the orders, the findings of fact which led to them, and the logic underlying them. To place the grandmother in the position which Order 6(b) potentially creates would in our view be unfair to her, and not consistent with the best interests if the children.
With respect to his Honour, and accepting that his consideration of the matters which gave rise to Order 6(b) was perhaps overshadowed by the number and complexity of the other issues which confronted him, and with which he so carefully and ably dealt, we conclude that his discretion miscarried when he made Order 6(b).
Ultimately, Counsel for the parties sensibly agreed that if the challenge to Order 6(b) was successful the order should be discharged. We agree.
With Orders 6(a) and 7 the issue is whether the learned Federal Magistrate erred in not allowing the mother to have a say as to when the father will spend time with the children despite she having equal shared parental responsibility with the paternal grandmother. We do not consider that there is any merit in this complaint. If the issue of time to be spent between a parent and a child is not a “major long-term issue” as defined in s4 of the Family Law Act, it would not form part of the parental responsibility that was bestowed equally on the mother and the paternal grandmother by the learned Federal Magistrate.
If however, the issue of time spent between a parent and a child was a major long-term issue, and thus an aspect of parental responsibility, it was within the discretion of the learned Federal Magistrate to reserve that aspect of parental responsibility specifically to the paternal grandmother. This can be justified on the basis that given the evidence of the animosity between the mother and the paternal grandmother, the mother should not in effect have the power of veto in these circumstances. Our conclusion gains support from the fact that Order 6 (b) will be discharged, thereby, at least in part qualifying the paternal grandmother’s ability to permit the father to spend time with the children in circumstances which might otherwise give rise to reasonable concerns for their welfare on the part of the mother.
Conclusion
Save to the extent we have indicated, the mother’s appeal should be dismissed.
Costs
Only Counsel for the paternal grandmother sought a costs certificate as a consequence of the appeal being successful in part. It is appropriate to grant such certificate.
I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 1 December 2009
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