Kelly & Anor and White & Anor

[2014] FamCA 1025

FAMILY COURT OF AUSTRALIA

KELLY AND ANOR & WHITE AND ANOR [2014] FamCA 1025

FAMILY LAW – CHILDREN – Interim Orders – With whom a child lives - Cultural Issues – Family Violence - Best Interests of the Child – Where applicants are no biological relation to the children – Where applicants were previously respite carers for the children and subsequently foster carers for some periods of time – Where both children have significant medical needs – Where first respondent mother opposed the applicants continued involvement in the children’s lives after they were returned to her care – Where children’s care arrangements subsequently reverted to arrangements which previously prevailed, with them staying with and being cared for by the maternal aunt – Where an updated family report has been prepared – Where family report writer has concerns in relation to neglect of the children whilst in the care of the mother and potential exposure to family violence – Where mother’s solicitor unable to contact her for the past two weeks – Where mother’s overarching instructions oppose the application for the placement of the children with the applicants – Where children have not resided with the mother for a year or so – Where maternal grandfather and maternal aunt support the applicant’s application – Where Court gave considerable weight to s 60CC(3)(h) and 61F, however noted that the primary consideration is the need to protect children from harm and from being exposed to abuse, neglect or family violence – Where Court satisfied on an interim basis that it is in the best interests of the children to live with the applicants.

FAMILY LAW – CHILDREN – Parental Responsibility – Where applicants sought sole parental responsibility – Where history of poor communication or at least and inability to contact the mother – Where Court ordered that the applicants have sole parental responsibility for the children, obliging them to use their best endeavours to consult with the mother in relation to any significant parenting issue affecting the children.

Family Law Act 1975 (Cth) s 60CC, 61F

Donnell v Dovey (2010) FLC 93-428
Re CP (1997) 27 Fam LR 486

APPLICANTS: Mr Kelly and Mrs Kelly

RESPONDENTS: Ms White and Mr Jennings

INDEPENDENT CHILDREN’S LAWYER: Ms Wallace

FILE NUMBER: TVC 98 of 2014

DATE DELIVERED: 3 November 2014

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 3 November 2014

REPRESENTATION

THE APPLICANTS: In person

SOLICITORS FOR THE RESPONDENTS: Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd

SOLICITORS FOR THE INDEPENDENT

CHILDEN’S LAWYER:

McDonald & Leong

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Fellows

Orders

1. The following definitions apply for the purpose of these Orders:

1.1.“The children” means:

1.1.1.J born … 2007; and

1.1.2.X born … 2003;

1.2.“the Mother” means Ms White;

1.3.“the Father” means Mr D;

1.4.“Applicants” means Mr Kelly and Mrs Kelly;

1.5.“the Parties” means the Mother and Applicants; and

1.6.“significant parenting issue affecting the children” means:

1.6.1.Any medical or health matter concerning the children;

1.6.2.Any medical or health matter affecting any of the Parties which may affect the ability of that Party to care for the children;

1.6.3.Matters relating to the education of the children;

1.6.4.Disciplinary matters other than of a trivial nature;

1.6.5.Matters concerning the social development and sporting activities of the children;

1.6.6.Matters concerning the religion or faith of the children;

1.6.7.Any change of residence, mobile or home telephone number of any of the Parties within forty-eight (48) hours of such change occurring; and

1.6.8.Generally any matter regarding the child in respect of which any of the Parties should be informed or consulted having regard to the provisions of Part VII of the Family Law Act 1975.

IMPORTANT DECISIONS CONCERNING THE CHILDREN

1. Until further Order, it is ordered that the Applicants have sole parental responsibility for the children.

2. That the Applicants shall consult with the Mother, with respect to any significant parenting issues affecting the children, however the Applicants are authorised to consent to any necessary medical procedure without the mother’s expressed consent.

3. That the children live with the Applicants.

4. That the children spend time with the Mother and the Father at all times as can be agreed by the Parties.

Medical Treatment of the Children

1. That each Party shall:

5.1.Advise the other party of any medical emergencies or serious illness affecting the children whilst the children are in their care as soon as practicable after they become aware of such medical emergency or serious illness;

5.2.Supply to the other party full details of doctors and hospitals involved in providing treatment to the children.

1. These Orders are sufficient authority to all doctors and hospitals involved in providing treatment of the children to provide the Applicants and the Mother and Father with all information about the children.

2. That the Applicants shall consult with the Mother, with respect to any significant parenting issues affecting the children, however the Applicants are authorised to consent to any necessary medical procedure without the mother’s expressed consent.

3. That the children live with the Applicants.

4. That the children spend time with the Mother and the Father at all times as can be agreed by the Parties.

Medical Treatment of the Children

10. That each Party shall:

10.1.Advise the other party of any medical emergencies or serious illness affecting the children whilst the children are in their care as soon as practicable after they become aware of such medical emergency or serious illness;

10.2.Supply to the other party full details of doctors and hospitals involved in providing treatment to the children.

11. These Orders are sufficient authority to all doctors and hospitals involved in providing treatment of the children to provide the Applicants and the Mother and Father with all information about the children.

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

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 98 of 2014

Mr Kelly and Mrs Kelly

Applicants

And

Ms White and Mr Jennings

Respondents

EX TEMPORE

REASONS FOR JUDGMENT

1. Before me for determination is an interim application relating to parenting orders of two indigenous children:  J, a girl presently seven years of age; and X, presently 11 years of age. 

2. The applicants to these proceedings are Mr and Mrs Kelly.  They are no biological relation to either of the children.  They came into the children’s lives initially as respite carers for the children, both of whom have significant medical needs.  In due course, their involvement as respite carers, which was facilitated by the Department of Communities, Child Safety and Disability Services, progressed to them being foster carers of the children for some periods of time. 

3. This appears to have worked well and amicably, with the Kellys maintaining connection between the children, who were living with them in Town A, and the children’s broader family and kin group, who mostly reside in the DD Aboriginal community.  However, the matter became somewhat complex when the mother of the children, who is the first respondent to the application, began to oppose the Kelly’s continued involvement in the children’s lives after they were returned to her care. 

4. That return was effected by the Department, but in fact, as it transpired, it appears as though the children only thereafter spent one night, or at most a few nights, living with their mother, and instead reverted to the arrangements which had previously prevailed in relation to them, namely that they were staying and being cared for by their maternal aunt, Ms U.

5. The application was initially brought on in January of this year, however, given the nature of the application brought by the applicants, and particularly given the fact that their application was seeking parenting orders in relation to two Aboriginal children who were then living on country, the Court proceeded cautiously. 

6. Ultimately in October of this year, a Family Report was prepared by the Senior Family Consultant of the Townsville registry.  She and the Independent Children's Lawyer attended Town A and DD and conducted interviews with the relevant persons and the children.  Shortly after their visit, the child J was taken from DD and hospitalised.  The child J has now been in hospital for 13 days. 

7. The family consultant has provided an addendum to her report, which was only released this morning.  Whilst I do not stay to recite large parts of that updating report, it is concerning that at paragraph 4 of that addendum, the writer observed that:

   The report writer was extremely concerned that [J] has been an inpatient at the … Hospital since 21 October 2014 and has essentially been alone on the ward for all this time.  For [J], at seven years of age, examination by medical and nursing staff and being subject to invasive procedures would be frightening.  For [J] to have to endure all of this with no significant adult to comfort her is at the very least emotionally harmful and places her at risk of developing symptoms of trauma.

8. The Family Report also details strong concerns which Ms M, the writer, had in relation to neglect of the children whilst in the mother’s care, and their potential exposure to family violence, as that term is defined in the Family Law Act, in consequence of violence apparently perpetrated by the mother’s current partner.

9. The concerns which the Court has are not ameliorated by the fact that Ms Elder, who appeared as solicitor for the mother, has been unable to make contact with her client now for in excess of two weeks.  As such, Ms Elder was in something of a difficult position, being without any current instructions from her client, albeit with, as she described them, overarching instructions to oppose the application for the placement of the children with the Kellys.

10. The orders which the Kellys seek are as set out in their application, but in substance would see them given sole parental responsibility for both of the children (albeit subject to an obligation to consult with the mother) and for the children to live with them, but to spend time with their parents at all times as can be agreed by the parties.  They also seek orders in relation to medical treatment by order 6, which it is unnecessary to recite.

11. Although by her Response the mother sought interim orders that the children live with her, and that the Kellys be prohibited from spending time and communicating with the children, the reality is that, given the state of Ms Elder’s instructions, those orders cannot be pressed today.  Moreover, given the absence of any instruction to Ms Elder, the concerning issues which are raised in the Family Report, and the fact that it appears as though the children have not been residing with the mother for now some year or so, the likelihood of that application being pressed in its present terms is dubious.

12. As I have indicated already, in the past the Kellys have had both children in their care by virtue of being their foster parents over a relatively lengthy period of time.  Moreover, they have done that with the support, initially, of the mother, although that support has been subsequently withdrawn, but also, importantly, with the support of the maternal grandfather, Mr D, and the maternal aunt, Ms U, who has been the primary carer of the children whilst they are in DD. 

13. Indeed, the maternal grandfather went so far as to say in his affidavit that the Kellys are regarded as part of his family, by virtue of them caring for the children.  Further, the maternal aunt, notwithstanding the fact that she has been the primary carer for the children, supports the orders that are sought by the Kellys, in part because of the acknowledged close relationship between the Kellys and the children, but also because of the difficulty that she herself is experiencing in properly caring for the children.

14. There is a concern in relation to the child X as well, that he is beginning to associate with antisocial elements of the community, and that therefore he is at risk of falling into bad company if he remains living permanently in DD.

15. I am mindful of two matters at the forefront of this case.  The first is one of the additional considerations contained in s 60CC(3)(h), namely the children’s rights to enjoy their Aboriginal culture, and the impact on that of the Kelly’s proposed orders.  Further, s 60CC(6) of the Act provides as follows:

    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 view;  and (ii) to develop a positive appreciation of that culture.

16. The second is s 61F, which provides:

    In applying this part to the circumstances of an Aboriginal or Torres Strait Islander child or (b) identifying a person or persons who have exercised or may exercised or may exercise parental responsibility for such a child, the Court must have regard to any kinship obligations and the child-reading practices of the child’s Aboriginal or Torres Strait Islander culture.

17. In Donnell & Dovey (2010) FLC 93-428 the Full Court observed in relation to that provision as follows:

    183. It will be seen that s 61F, in the form ultimately enacted, applies to all cases involving an Aboriginal or Torres Strait Islander child.  In proceedings under Part VII relating to such a child, the court must have regard to the child-rearing practices of the relevant Aboriginal or Torres Strait Islander culture.  Failure to take account of that provision would, in our view, ordinarily amount to appealable error.   (For an illustration of a case in which s 61F was properly treated as an “integral” part of the decision making process see the judgment of Young J in Davis v Davis (2008) 38 Fam LR 671.)

    184. Section 61F does not say that the outcome will be determined by application of the relevant kinship obligations and child-rearing practices, but the court must have regard to them.  In our view, this can only be seen to be done if findings are made regarding those obligations/practices and adequate reasons are given to explain why a decision has been made that either follows or departs from them.  We accept this can be done without the court making express reference to s 61F, but we consider it would be desirable that the section is at least mentioned, if not discussed. 

18. The Court continued at [187]-[188] as follows:

    187. A rigid interpretation of s 61F may have suggested that the adjournment option was to be preferred.  On the face of the section, it is mandatory for the court to have regard to the relevant indigenous child-rearing practice in every case involving a child of Aboriginal or Torres Strait Islander background.  If there is no evidence, or there is a lacuna in the evidence, the court cannot fully comply with the obligation imposed by the statute. 

    188. However, such a strict interpretation of s 61F would be unrealistic.  In many cases there will be no evidence at all of the relevant custom or practice.  This may be because there is no acceptable evidence available to establish the custom or practice.  Alternatively, there may be no evidence because no party asserts it to be of any relevance.  For example, the child may have been brought up in a family where all meaningful attachment to indigenous culture has been lost. 

19. In this context it is also pertinent to refer to an aspect of the decision of the earlier Full Court in Re CP (1997) 27 FamLR 486 at 502. Whilst I accept that the following passage is not a statement of principle or law, but rather a recital of part of the relevant evidence in that case, it may be taken as fairly representing an accepted position of general application in many of the cases in this Court involving aboriginal children. There the Court said as follows:

    We have already set out his Honour’s precis of the evidence given by Dr M, which he correctly noted was unchallenged.  Yet we do not consider that what his Honour recorded of her evidence, which his Honour said he accepted, captured the views she expressed, notwithstanding the limited, or restricted, ambit of her brief.  In particular, we do not consider that his Honour had sufficient regard to the following passages of Dr. M’s report:

    ... Children are born into a world of kin which is so vast they will probably be meeting new kin when they are old men and women. For an Aboriginal child, this network will become one of the two key ways in which their identity as a person is constructed. The other is through relations to country. Both are able to link the child to its ancestors and thus, by implication, to its descendants.

    (see Appeal Book page 244)

    and—

    Disadvantages of not bringing up an Aboriginal child within his or her own community of kin and within at least frequent visiting distance of country with which he or she is identified might include:

    • the loss of relations with a vast range of kin who will perform a wide variety of roles associated with social relations, emotional and physical support, educative knowledge, economic interactions and spiritual training. This is as true of Aboriginal people from communities in `settled Australia' whose continuities of tradition have in certain cases been greatly disturbed by their colonial histories as well as those in more remote areas;

    • loss of knowledge which stems from the social interactions mentioned above;

    • ambiguities in or loss of identity with one's own kin and country, features I understand as essential to identity from an indigenous point of view, and which are much more specific to certain people and place than is the broader categorisation of “Aboriginal” used by the wider Australian society and which does not necessarily recognise the specificity of indigenous identity.”

    We consider that these aspects of Dr M's evidence were of significance in highlighting the disadvantage for an Aboriginal child in not being brought up within their own community and further demonstrate the inter-connectedness between identity and belonging within the specific group to which that child was born, compared to a child's wider identity as “Aboriginal'”. To our mind, the whole thrust of his Honour's judgment demonstrates that he gave the specificity of this child's cultural heritage, and the impact on his future welfare if he were not brought up within it, insufficient weight and this is amplified by his failure to make any reference to the above portions of Dr M's unchallenged evidence in his summary of it.

20. Whilst I am mindful of s 60CC(3)(h), (g) and s 61F and give them considerable weight, nonetheless as Mr Fellows, who appeared as counsel for the Independent Children’s Lawyer submitted, it is the primary consideration in s 60CC(2)(b), namely the need to protect both children from harm and from being exposed to abuse, neglect or family violence, which is most strongly engaged here. 

21. Again, it is unnecessary in these interim reasons to set out the numerous concerning passages in the Family Report of Ms M, but suffice to say that if they were in the care of their mother, the children would be likely to experience neglect, and likely be exposed to family violence.  Moreover there is the concerning failure of the maternal family, or indeed the paternal family, to provide appropriate emotional care for J during her current hospitalisation.  I have already referred to Ms M’s concerns that that exposes her to a real risk of trauma.

1. Whilst I accept that the effect of the orders which I propose to make will remove the children from living in their Indigenous community at DD, at least on an interim basis, I am mindful that the Kellys do have a long history of involvement with the children’s family, and that they have good relations with many members of that family.

2. I do specifically take into account that indigenous communities have a broader pattern of parenting of children, in that it becomes a community responsibility rather than a nuclear family responsibility.  However, in this case, given that the care of the children has been substantially by the maternal aunt, and she supports the Kelly’s application, the extent to which those traditional child rearing practices should be given weight in this case is considerably undermined.

3. Therefore, whilst I take into account both s 60CC(3)(h) and s 61F, in the circumstances of this case, at least on an interim basis, it is s 60CC(2)(b) which needs to be given greater weight. 

4. I have considered the balance of the additional considerations; it is unnecessary for me to traverse them in detail in these reasons.  It is plain that, at least in relation to X, Mr Kelly presents as the father figure with whom he identifies and with whom he wishes to live, and recently, when interviewed by Ms M in hospital, J identified a desire to be with Mrs Kelly.  Those are matters which not only do I take into account by reference to the children’s wishes, but also because those persons do not present any risk of abuse, neglect or family violence to the children.

5. I am satisfied that the best interests of these children are to have them, on an interim basis, live with the Kellys. 

6. The only matter of some additional controversy in relation to the application relates to parental responsibility.  Ms Elder identified that it may be more appropriate to have the mother continue to have some parental responsibility for the children, perhaps shared with the Kellys.  However the difficulty is that the Kellys will have the care of the children under these orders, and there is, in recent time, a history of poor communication, or at least, an inability to establish contact, with the mother.  That inclines me, on an interim basis, to make an order that the Kellys should have sole parental responsibility for both children, albeit that they should be obliged to use their best endeavours to consult with the mother in relation to any significant parenting issue affecting the children.

7. For those reasons, there will be orders in terms of paragraphs 1, 2, 3, 4, 5, 6 and 7 of the interim orders sought by the Kelly’s Initiating Application filed 30 January 2014.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 3 November 2014.

Associate: 

Date:  3 November 2014