Kane and Anor and Sackett and Anor
[2011] FMCAfam 468
•13 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KANE & ANOR & SACKETT & ANOR | [2011] FMCAfam 468 |
| FAMILY LAW – Application by maternal grandparents to spend time with their grandchildren – such application strongly opposed by the respondent parents – adults highly conflicted – paternal grandfather is an indigenous Australian – father was born in Somalia and is a Suni Muslim – parents wishing to relocate to the United Arab Emirates to pursue business opportunities – orders made allowing parents and children to relocate and maternal grandparents to communicate with the children by gifts, letters and email every second month. |
| Family Law Act 1975, ss.11F, 60B, 60CA, 60CC |
| Potts & Bims [2007] FamCA 394 Davis & Spring [2007] FamCA 1149 Simpson & Brockmann [2010] 43 FamLR 32 |
| First Applicant: | MS L KANE |
| Second Applicant: | MR T KANE |
| First Respondent: | MR SACKETT |
| Second Respondent: | MS K KANE |
| File Number: | MLC 11459 of 2010 |
| Judgment of: | Bender FM |
| Hearing dates: | 12 & 13 May 2011 |
| Date of Last Submission: | 13 May 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 13 May 2011 |
REPRESENTATION
| Counsel for the Applicants: | Mr Testart (amicus curaie) |
| Solicitors for the Applicants: | Self-represented |
| Counsel for the First Respondent: | In person |
| Solicitors for the First Respondent: | Self-represented |
| Counsel for the Second Respondent: | In person |
| Solicitors for the Second Respondent: | Self-represented |
ORDERS
The children [W] born [in] 1999, [X] born [in] 2003, [Y] born [in] 2006 and [Z] born [in] 2009 (“the children”) live with their parents who will have the sole responsibility for their care, welfare and development.
Orders 4 and 5 of the orders made on 8 February 2011 be dismissed and the court requests that the Australian Federal Police remove the names of the [W] born [in] 1999, [X] born [in] 2003, [Y] born [in] 2006 and [Z] born [in] 2009 from the airport watch list at all points of international arrivals and departures in Australia.
The paternal grandparents communicate with the children as follows:
(a)no more than once every two months by email; and
(b)by cards and letters, with such communications to be age appropriate and make no reference to the adult issues between the parties.
For the purposes of order 3, the respondent parents:
(a)forthwith provide to the maternal grandparents an email and post office box address that will enable them to communiate with the children and in the event of any change to such address, the respondent parents forthwith advise the maternal grandparents in writing of such change;
(b)ensure the children receive the communications; and
(c)encourage the children to respond/write to the maternal grandparents and allow them to do so if they request to do so.
The respondent parents forward to the maternal grandparents photographs of the children no less than once every six months.
The respondent parents notify the maternal grandparents of any serious illness or injury incurred by the children or any of them.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the children or any of them, and from permitting any other person so to do.
IT IS NOTED that publication of this judgment under the pseudonym Kane & Anor & Sackett & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 11459 of 2010
| MS L KANE |
First Applicant
| MR T KANE |
Second Applicant
And
| MR SACKETT |
First Respondent
| MS K KANE |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
This unbelievably sad case relates to the maternal grandparents’ application seeking to spend time and communicate with their four grandchildren, [W] born [in] 1999, [X] born [in] 2003, [Y] born [in] 2006 and [Z] born [in] 2009 (“the children”).
The children live with their parents and have not had any interaction with their maternal grandparents for some three years.
This reflects the complete breakdown of the relationship between the maternal grandparents, their daughter and her husband.
The orders sought by the maternal grandparents are as follows:
a)the children live with their parents;
b)the applicant grandparents spend time with the children from 12.00 noon Saturday until 5.00 pm Sunday on the first weekend of each month; from 9.00 am on the first Monday of the June/July school holidays until 5.00 pm the following Saturday afternoon; and from 12 noon Boxing Day until 5.00 pm December 31;
c)the parents make the children available to receive telephone calls from the grandparents at 7.00 pm on each alternate Monday evening;
d)whilst the children are in the grandparents’ care overnight, the grandparents make the children available to receive telephone calls from their parents on the Tuesday and Thursday evenings at 7.00 pm;
e)the grandparents be permitted to receive copies of reports and invitations issued by the children’s schools and be allowed to attend such school events to which grandparents would usually be invited;
f)the applicant grandfather be allowed to teach the children about their Aboriginal culture and background and family history;
g)the parties not criticise or denigrate the other party or the other party’s family or culture in the presence of or within hearing of the children;
h)the parties advise the other of any change of address, telephone number, or residential address within 24 hours of such change occurring; and
i)the watch list order preventing the children leaving the Commonwealth of Australia put in place by interim order of this court on 8 February 2011 remain in full force and effect.
In the event that the respondents and grandchildren are permitted to relocate overseas, the maternal grandparents seek:
a)
communication over the internet, such as email and Skype,
7.00 pm on the first Monday of each month;
b)the grandparents be permitted to receive copies of reports, newsletters, school photographs issued by the children’s schools as would be usually available to grandparents;
c)the applicant grandfather be allowed to teach the children about their Aboriginal culture and background and family history,
d)the parties not criticise or denigrate the other party or the other party’s family or culture in the presence or within the hearing of the children;
e)the parties advise the other of any change of address, telephone number or residential address within 24 hours of such change occurring;
f)the grandparents be permitted to visit the grandchildren twice a year for a week during school holidays and, during this time, the grandchildren be made available for a two-hour visit each day and from 9.00 am until 5.00 pm on Saturday and Sunday;
g)the parents notify the grandparents when they return to Australia for holidays and make the grandchildren available for a two-hour visit each day and from 9.00 am till 5.00 pm on Saturday and Sunday for the duration of their visit; and
h)such other orders as the court deems appropriate.
The parents are wishing to move, as a family, to Dubai in the United Arab Emirates to pursue business opportunities there. They currently oppose any orders for the children to spend time with their maternal grandparents, but agree to limited email communication.
Background
The maternal grandparents are aged 58 and 62. They have four adult children, of which the respondent mother in these proceedings is their eldest daughter.
The maternal grandmother is engaged in home duties and the maternal grandfather is employed in [omitted].
As an adult, the maternal grandfather discovered he is an indigenous Australian and, at a time determined by his grandmother, the oral history of the family was passed on to him. It is his evidence, which I accept, that he was selected to be the Ngurangeeta, that is, the one in his family to pass on the clan history to the next generation.
The maternal grandfather strongly identifies as an indigenous Australian and respects and values his Aboriginal heritage. As noted, he is employed at [omitted] working with indigenous youth and is also undertaking a PhD in indigenous education.
The maternal grandparents are most concerned that their estrangement from their grandchildren denies those grandchildren the opportunity to embrace and learn about their Australian and indigenous culture and heritage.
The respondent father was born [in] 1973 and is 37 years of age. He is of Somalian origin. He arrived in Australia in his youth and is an Australian citizen. He is a Suni Muslim.
The respondent mother was born [in] 1977 and is 34 years of age. She attended [university and qualifications omitted]. She converted to Muslim prior to marrying the father.
The respondent parents married [in] 1997 at a mosque and only told the maternal grandparents of their wedding after the event.
It is common ground that in the early years of the respondents’ marriage there were positive relations between the parties to this dispute. The maternal grandparents were invited to the birth of [W] and spent regular time with her. They were also invited to [X]’s birth and were able to spend time with her, albeit, on the maternal grandparents’ evidence, such time was of a more limited nature.
The interactions between the family became more and more strained, such that by 2005/2006 there was little to no interaction between the two families.
The maternal grandparents lay the blame for the breakdown of that relationship at the feet of the respondent father. It is their evidence that he was derogatory of the maternal grandfather’s Aboriginal heritage and he was actively preventing the respondent mother from interacting with her family.
It is the respondent parents’ view that the relationship deteriorated after September 11 when, on their evidence, the maternal grandfather became very hostile to those of the Muslim faith and suggested that all Muslims should be “rounded up”.
Both families deny the allegations made against them and continue to lay the blame for the deterioration of their relationship at the feet of the other.
In 2007 the maternal grandparents’ evidence is the respondent father contacted them alleging their daughter was having an affair and requested that they come and get her. It is their evidence they attended at the home of the respondent parents and, after interventions from the respondent father’s mother, matters calmed down.
It is the respondent mother’s evidence that in 2007 the respondent father received text messages, either from her sister or her mother, making allegations that she was having an affair and that this is what was the cause of the argument between herself and her husband.
This was categorically denied by the maternal grandmother.
At Christmas 2007 the maternal grandmother rang and left a message for her daughter. It was her evidence the respondent mother contacted her a couple of days after Christmas asking her family to come and get her and the children because she wanted to leave the respondent father but was afraid to do so. The maternal family collected the mother and children who stayed with the maternal grandparents for some weeks.
In late January 2008, the respondent mother and children returned to live with the respondent father.
It is the maternal grandparents’ evidence that in March 2008 the respondent mother rang them pleading for her family to come as the respondent father had, “gone crazy”. They attended the respondents’ home. The respondent father left the home, initially with [W], who he returned after intervention from his family.
The maternal grandmother’s evidence was that the respondent mother begged her not to call the police at this time because of existing intervention orders against the respondent father arising from previous domestic violence perpetrated by him against the respondent mother.
The maternal grandmother’s evidence is that she stayed with her daughter for a week after this event when she then had to leave because of work commitments. It is her evidence she remained in close contact with her daughter by telephone for the next two weeks, after which time her daughter again became distant. It is her evidence her daughter then confirmed that she and her husband had reconciled, and it was the maternal grandmother’s evidence that she has not seen her daughter and grandchildren since this time.
The respondents categorically deny that the respondent father has ever been violent towards the respondent mother. The respondent mother concedes that she did seek “time out” from the relationship in
January 2008 but, like all marriages, they had their rocky times and theirs is now a strong and committed relationship.
No subpoenas were issued in this matter to obtain police records to verify, or otherwise, the existence of any intervention orders or police interventions at any time in the respondents’ home, and I am left with nothing but conflicted evidence around this issue.
In September 2008, the maternal grandparents arranged for police to attend the respondents’ home to ascertain if the mother and children were safe. The police did so at 1.00 am one night and the maternal grandmother was advised that the mother and children were fine. This was the last interaction between the respondent mother and the grandchildren and the maternal family.
It was the maternal grandparents’ evidence that in 2009/2010, a close family friend, who had twin grandchildren at a primary school in [suburb omitted] and who knew of the family dynamics, contacted the maternal grandmother to advise that there were two little Muslim girls who wore hijabs at the same school as her grandchildren.
The maternal grandparents’ evidence is they made enquiries of the school in question and, to their surprise and delight, it was confirmed that those children were [W] and [X]. It is their evidence that they spoke to the Deputy Principal of the school who reassured them that the girls were fine and well cared for. It was their evidence that they at no time approached either the girls or the respondent parents.
In or about July 2010 the respondents and their children travelled to Dubai to explore business opportunities in the region.
In August 2010 the maternal grandmother and her son [Mr R] attended the home of the paternal grandmother. On the maternal grandmother’s evidence, she was despairing of losing her daughter and grandchildren and went to the paternal grandmother’s home as a last hope of being able to locate them. It was her evidence she knocked on the door asking for an address and phone number, that she was distraught and sobbing and that she was there from about 2.30 pm to 5.00 pm. Ultimately the police came and, whilst sympathetic to her situation, advised her she needed to leave, which she did so when her husband picked her up at 5.00 pm.
The maternal grandmother indicated that the respondent father’s sisters, who were in the home, were aggressive. They screamed and yelled at her, and demanded that she and [Mr R] immediately leave.
It is the respondents’ evidence that the maternal grandmother and
[Mr R] were at the paternal grandmother’s home for several hours, banging on the door and scaring the respondent father’s mother who has very little English. Their evidence was the maternal grandmother and [Mr R] refused to leave, despite being asked to do so, and that they only left when the police intervened.
As a result of this incident, the paternal grandmother took out an intervention order against the maternal grandmother.
In or about December 2010, the respondent parents returned to Australia. Because of what they believed to be the ongoing “stalking” of them by the maternal grandparents, including the incident at the paternal grandmother’s home, they obtained an intervention order against both maternal grandparents. The intervention order includes the children.
It was the maternal grandparents’ evidence that it was only when they were served with the intervention order that they learned of the birth of their grandson.
Having been served with the intervention order, the maternal grandparents learned of the respondents’ return to Australia and it was after that they commenced these proceedings.
When the matter first came before me on 8 February 2011, there was no appearance by the respondents although service documents were provided.
On that date orders were made adjourning the matter to
17 March 2011, as well as orders requiring the respondents to file and serve answering material and appear on the adjourned date. In addition, a watch list order was made in relation to the four children, based on concerns that the respondents would take the children from the Court’s jurisdiction before the Court would have an opportunity to hear the matter before it.
Service of the Application of the maternal grandparents had been effected, it transpired, by the applicant’s sons attending at the paternal grandmother’s home on 7 January 2011. On that occasion violence erupted between the parties, the father claiming that the mother’s brothers had assaulted him, and the brothers claiming the father and other Somali youths had assaulted them. Police investigations, I understand, continue into that matter.
What is not in dispute is that [W] and [X] witnessed this violence and that, in sending their sons to the paternal grandmother’s home, the maternal grandparents were breaching the terms of their intervention order, albeit I do accept not intentionally or knowingly.
The matter came back before me on 17 March 2011. On that day I ordered the parties to attend upon a Family Consultant for a section 11F Child Dispute Conference. The Family Consultant, Ms D, prepared a memorandum to the court on 7 April 2011 and all parties have had the benefit of that document.
After the matter was before the court on 17 March 2011, the maternal grandfather sent a letter of demand to the respondent father seeking payment of $3,250.00. This is money the maternal grandfather claims is owed to him by the respondent father for fencing done on the property owned by the respondents many years ago. The maternal grandfather did not perceive this action to be inappropriate.
The Evidence
The parties have all filed affidavits in this matter, the applicants on
2 December 2010 and 18 April 2011, and the respondents on
7 March 2011 and 29 April 2011.
All parties also gave viva voce evidence at the final hearing and were cross-examined.
It is not my intention in this judgment to expand at length on the parties’ evidence in the hearing of this matter as I do not believe it will particularly further the matter. Suffice it to say that the parties’ evidence confirmed beyond any doubt that the adult relationship is highly conflicted and that each holds the other responsible for the breakdown of the relationship.
The parties’ evidence was at times defamatory, racist, bigoted and highly disturbing, especially that of the maternal grandfather and the respondent father each as against the other. By way of example:
a)the respondent father accused the maternal grandfather of being motivated by monetary gain in relation to his identification with his indigenous background;
b)the maternal grandparents alleged that the female grandchildren were at risk of genital mutilation because of their parents’ Islamic faith;
c)the respondent father referred to the spiritual beliefs of indigenous Australians as voodoo and black magic; and
d)the maternal grandfather believes that the respondent mother suffers from Stockholm Syndrome arising from the abuse that he alleges she suffers at her husband’s hands.
Such was the level of antipathy shown between the respective parties the Court was very sadly only able to conclude that the potential for any healing of their relationship, at least in the short to medium term, is very limited.
The respondent parents were cross-examined at considerable length in relation to their proposed business in the United Arab Emirates, being a proposal whereby they will be the brokers in facilitating the importation of Australian meat.
I think that evidence can be summarised at best as big on grandiose dreams and aspirations, and very short on detail. However, I do not accept the submission of the applicant’s counsel that the evidence was a “tissue of lies” concocted by the respondents to justify orders allowing them to leave the country to take the children out of their grandparents’ reach.
Ms D
As noted earlier, the parties attended upon Ms D, a Family Consultant of the Federal Magistrates Court, for a section 11F Child Dispute Conference. In her memorandum to the Court, Ms D made some very insightful observations.
Under the heading, “Issues Remaining in Dispute”, Ms D identified some of the following:
·The ongoing adult conflict between the parents and the maternal grandparents, and disintegration of all communication.
·Cultural issues, regarding the parents Muslim faith and the maternal grandparents Aboriginal heritage. The maternal grandparents believe that the children should be afforded an opportunity to be educated and aware of their Aboriginal heritage. Both the parents and the maternal grandparents accused each other of being derogatory about their culture and faith.
·The parents are currently planning to relocate with the children to Dubai.
Under the heading, “Issues Impeding Resolution”, Ms D noted as follows:
·The breakdown in effective communication between the adults involved and the parents’ exclusion of the maternal grandparents from both theirs and the children’s lives.
Under the heading, “Issues Relating to the Children”, amongst many insightful observations, Ms D noted in particular:
·The disintegration of the adult relationship between the parents and maternal grandparents appears to be largely based around cultural issues and their perception of the other’s acceptance of their own views.
In relation to the allegations around the parents disregarding the children’s Aboriginal heritage, Ms D noted:
·It is clear that they identify primarily as Somali, and follow the Muslim faith. This faith should be upheld for the children, however it is also important that the children are better educated about their aboriginal heritage.
Ms D then noted:
·All parties appear genuine in their conviction and presented as appropriate throughout this assessment. The maternal grandparents perhaps presented as slightly more easily antagonised by the current conflict, and it was evident that they are suffering grief associated with the loss of the relationship between their daughter and grandchildren. Despite each adult denying any cultural bias towards the other, their actions thus far does not appear to support these views in its entirety, and it appears that all adults involved have played some part in the ongoing adult conflict.
Ms D noted:
·
The maternal grandfather strongly believes that the mother is suffering from “Stockholm Syndrome” due to what he believes is control and manipulation by
Mr Sackett. He therefore doubted that it was the mother’s legitimate view to cease the relationship with them.
Ms D further noted:
·This appears a family in crisis at present and the involvement of the court system appears to have further ignited the adult conflict. It appears likely that the negative view of the adults involved has escalated to some degree. They are a family who appear to have been in conflict for some years, with limited insight into the exact cause of the ongoing conflict, other than their own perceptions of the others wrongdoings.
Ms D concludes:
·It appears that the current dispute is weighted more heavily around the adult conflict rather than the children’s best interests. The children should perhaps be afforded an opportunity to have a relationship with the maternal family, but not at the expense of their relationship with their parents. At present, the adult conflict needs to abate further before time with the maternal grandparents could be ensured without further impacting the children.
Under the heading, “Further Directions”, Ms D set out her recommendations which she believes are in the best interests of the children, and they are as follows:
·That the children continue to live with their parents.
·That the parents endeavour to either set aside or work on their own conflict with the maternal grandparents in order to better ensure that the children are afforded an appropriate relationship with their maternal extended family in the future.
·If the parents relocate to Dubai, then it is recommended that the parents endeavour to send the grandparents photographs and letters/cards on a regular basis, and that in turn the maternal grandparents do the same. In the event that this is not agreed upon, then the frequency of such may need to be set by the court to ensure this occurs. Any letters sent should be brief and child focussed and not relate to the adult conflict.
·At present there is some concern that the adult conflict is too significant for time to occur between the children and the maternal grandparents without risk of negatively impacting the children. If the parental conflict abates, then it is recommended that the grandparents spend time with the children as agreed between the parties. This time would need to be child-focussed and the grandparents should not discuss their views related to the parents or the conflict in the presence or hearing of the children.
·It may assist this family for the adults to attend family therapy in order to attempt to rebuild their relationship, so that the children are able to experience a positive connection with their maternal family.
·It may also be appropriate for the maternal grandparents to send the children information about their aboriginal heritage in the absence of any face-to-face contact. This however should not be the focus of each contact via mail and should be educational only and not attempt to impress any views upon the children.
The Law
Central to the applicant grandparents’ Application to the Court is their concern that in denying them a relationship with their grandchildren, the parents are denying their children their right to be connected to and have knowledge of and exposure to their Aboriginal heritage and culture.
It is their argument that the respondent father, in particular, will prevent the children from learning of that aspect of their heritage.
The respondent parents argue that, as the children’s parents, they have the responsibility and authority in relation to their children, including the right to decide the faith under which their children are to be raised. As parents, they have decided that the children are to be raised under Islam, and that a component or large part of the Islamic faith is that their children should not be exposed to beliefs that challenge the existence of the one God.
They therefore argued that whilst they are proud of their children’s indigenous heritage, and would allow them knowledge of that aspect of their heritage, that until they were older, it was not appropriate that they be fully exposed to the spiritual beliefs of that culture.
The objects of and principles underlying Division 7 of the Family Law Act1975 (“the Act”) are to ensure the best interests of children are paramount and are fully and wholly considered by the Court in determining where and with whom a child shall live, and also with whom a child should communicate or spend time with.
Section 60B of the Act sets out the objects under that Division, and they are:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence; and;
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Subparagraph (2) of section 60B highlights the principles underlying those objects, and they are (except when it would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
When this legislation was amended in 2006, an additional subclause was added to section 60B, and it provides as follows:
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
When considering this aspect of the legislation in relation to best interests of these four children, I was greatly assisted by the decision of His Honour Young J in the case of Davis & Spring [2007] FamCA 1149. In that matter, his Honour was determining living arrangements for a very young girl who was born of an indigenous mother and a white Anglo-Australian father.
In paragraphs 65 to 93 of His Honour’s judgment, under the heading, “Family Law Act - Indigenous Culture”, His Honour considered those aspects of the Act relating to this consideration. I am going to refer to and quote from His Honour’s judgment at some length, as I believe it is very pertinent to this matter.
In paragraphs 66 to 69, his Honour set out:
65.In s4 of the Act are contained the following definitions:
Aboriginal Child means a child who is a descendant of the aboriginal people of Australia.
Aboriginal … culture in relation to a child:
(a)means the culture of the aboriginal … community or communities to which the child belongs; and
(b)includes aboriginal or … lifestyle and traditions of that community or communities
66.Part VII of the Act governs the law in relation to children. I have previously highlighted s60B(2)(e).
67. Section 60B(3) provides:
(3) For the purposes of sub-paragraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)to develop a positive appreciation of that culture.
68.Section 60CC(3) lists the additional considerations which the court must take into account in determining the best interests of the child and sub-section (h) provides one such consideration:
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
69.Section 60CC(6) provides:
(6)For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)to develop a positive appreciation of that culture.
His Honour then goes on to note, in paragraph 70 of Davis & Spring (supra):
70.The importance of culture in assessing the best interests of an indigenous child is afforded special attention in the Act because of the unique needs and difficulties faced by those children throughout the history and the present time.
His Honour notes, in paragraph 72, that:
72.The Act states that in order to promote the best interests of an aboriginal child and to allow them to fully develop their identity and self-esteem the child must be afforded the opportunity to maintain a connection with their culture…
His Honour notes that this reflects Article 30 of the United Nations Convention on the Rights of the Child, to which Australia is a signatory. Article 30 states:
“In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.”
In paragraph 82 of his judgment, His Honour identified that in the case which he was determining, the child in question would, because the mother was from a central Australian indigenous community and the father an Anglo-Australian from the Latrobe Valley, be unable to be easily connected with both her cultural backgrounds.
His Honour, at paragraph 89, noted:
…I have carefully assessed these issues in the context of the primary and other additional considerations. No one fact by itself is over-riding of all other issues…
His Honour concluded in paragraph 93 as follows:
93.The child’s rights to enjoy and maintain her culture are one consideration in addition to many others. The Act requires that these rights must be afforded real and significant weight. They are, however, to be properly balanced with all of her rights and all of the facts and issues which impact upon her welfare, upbringing and future life.
It is also, I would note, of relevance when considering section 60B(2)(e) that the reference is to a child’s right to enjoy their “culture”. Whilst the Act properly has, for the reasons set out by Young J in Davis & Spring (supra), made specific reference to children who are of Aboriginal heritage, I reject absolutely the submissions of the applicant grandparents’ counsel that the Australian Government has somehow placed the importance of Aboriginal culture as superior to that of any other cultures. I think this is clearly incorrect.
The children’s Somalian, Australian, indigenous and Islamic cultures are all important for these children.
It is also of major relevance that their parents’ have decided that their children are to be raised in the Islamic faith.
Best Interests
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Therefore it is incumbent upon me to determine this matter on the basis of what is in the best interests of [W], [X], [Y] and [Z].
This is done by me considering all relevant factors under section 60cc of the Act.
Many of the factors pursuant to section 60cc are worded such that they make reference only to a child’s parents. How the Court is to consider the specific provisions of section 60cc that refer to parents only in disputes between parents and non-parents has been considered in a number of cases by the Full Court.
In the matter of Simpson & Brockmann [2009] 43 FamLR 32, at paragraph 121 the Full Court cited with approval the decision of Moore J in the matter of Potts & Bims [2007] FamCA 394.
In Potts & Bims (supra), Her Honour was determining a dispute between the children’s parents and the maternal grandparents. Having considered the manner in which the court should deal with those matters under sections 60cc(2) and (3) which make specific reference to parents only, Her Honour concluded that those subsections that referred specifically to “parents” could not be specifically considered in the context of parties who were not the child’s parent. Her Honour concluded however, that if the matters under sections 60cc(2) and (3), which were excluded for consideration because they made reference to “parents”, were relevant to the best interests of the children, then those factors could be considered by reference to the catchall provision of section 60cc(3)(m). Her Honour was of the view that this enabled the court to consider all factors that are relevant to the best interests of the children in question, whether the parties to the proceedings were the children’s parents or not.
I am in complete accord that this is the appropriate approach that the court should take when determining parenting issues between parties, where one or other of the parties is not a parent of the child.
So I will look at the provisions under section 60CC in relation to what is in the best interests of these four children in the context of the dispute before me.
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
The children have and will continue to have a meaningful relationship with both their parents.
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The level of antipathy and distrust between the parties before me today is something from which these children need to be shielded at this time.
The violent incident when the grandparents’ sons attempted to serve the grandparents’ Application, which was observed by the children, is most concerning.
Sadly, I have to have real concerns as to whether the children could be shielded from the adult issues in the event that I were to make orders in the terms that are being sought by the maternal grandparents.
Section 60cc (3) of the Act sets out the additional considerations to be taken into account and these will be looked at in turn where relevant.
Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Given the circumstances of the matter whereby the children have sadly not had any interaction with their grandparents for a very considerable period of time, and given the relatively young age of the youngest three children, their views were not sought.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
The children have a close and loving relationship with their parents.
Whilst [W] and [X] may have some memory of their maternal grandparents because of their involvement when they were young, the three years since there has been any interaction between the grandparents and their grandchildren means that sadly, there is currently no relationship between the children and their grandparents.
Section 60cc 3(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
Subsection (c) is not a factor that can be considered.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his 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
Clearly, there is no proposal for separation of the children from their parents.
This is an interesting case in that there is not going to be any change to the children’s circumstances if I do not make the orders sought by the maternal grandparents because, very sadly, there is not, at the moment at least, any interaction between them and their grandchildren.
The question therefore is unusually the converse, and that is if I were to introduce such interaction what would be the impact on them? I have already commented on my concerns in that regard.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Subsection (e) is not a factor that can be considered.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
There is no issue that the parents are providing for their children physically, emotionally and intellectually. They have however an absolute opposition to allowing the children to have a relationship with the maternal family.
In the context of the applicants in this matter, I have concerns in relation to the views that they so strongly hold in relation to the respondents, and in particular to their son-in-law, such that those views could impact on their capacity to provide for the emotional and intellectual needs of the children.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The children’s parents are Suni Muslims and are bringing their children up under the Islamic faith.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor has been explored at some length previously in this judgment.
If I were to accede to the orders sought by the respondent parents I accept that it is unlikely that the children will be afforded an opportunity to develop or fully enjoy their Aboriginal culture and will be unlikely to be afforded a full knowledge of what it means to be an indigenous Australian.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
I have already indicated that there are allegations, each against the other, in this regard.
I am not in a position today to make any finding as to what occurred in January 2011, other than to express real concern that whatever occurred did so in front of [W] and [X] and could not have been anything other than a very unpleasant and disturbing incident for them.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Where there is such a serious breakdown in the relationship between the parties and absent a change in the parties’ attitudes, any orders the court makes can not improve that relationship.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
The relevant factors under this subsection are the very high level of adult conflict, the inappropriateness of exposing the children to that conflict and the intolerances and complete lack of respect shown by each of the adults to the other.
I am very cognisant of the genuine distress of the maternal grandparents in this matter.
I am also very cognisant of the genuineness of the mother’s evidence that she needs time to heal from what she sees as the abuse of trust shown to her by her parents.
The disdain of the maternal grandparents for the mother’s husband and their lack of belief in her, in that they believe that she is so oppressed by her husband that she is unable to freely express her own opinions and views, have caused the mother genuine distress and unhappiness.
I would note that it was my observation of the mother that she is an intelligent, independent woman who very much held her own views and opinions.
The mother wishes her children to be able to grow up happily within their family in an environment where they are able to love and respect both their parents and where both their parents are free to bring up their children without criticism or interference from family members who clearly disapprove of their choices and beliefs.
Conclusion
This is probably one of the saddest matters I have had to deal with since coming to this Court.
These children should be able to embrace the entirety of their rich heritage and diverse cultural background and have the benefit not only of their loving and caring parents but of their loving extended family, both maternal and paternal.
They should be able to embrace all of their heritage, Somalian, indigenous Australian and white Australian. They should have the right to know what their heritage brings to them, both culturally and by way of life experience.
Because of the bitter and entrenched conflict between their parents and the maternal grandparents, at this time, unfortunately, this is just not possible.
I am of the view that to expose these children to the level of distrust, antipathy, and, dare I say it, almost hatred that I have seen in this courtroom over the last two days cannot be in their best interests. As such, I cannot accede to the maternal grandparents’ Application.
I can only hope and pray for these children that the adults in their lives will “grow up”, which is the term that has been thrown around somewhat loosely in the last two days, such that the children are afforded the opportunity to know and love all their extended family.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 31 May 2011
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