Lawson and Warren and Ors
[2011] FamCA 38
•4 February 2011
FAMILY COURT OF AUSTRALIA
| LAWSON & WARREN AND ORS | [2011] FamCA 38 |
| FAMILY LAW – CHILDREN – where mother and father have long histories of drug abuse – where in parents’ care child exposed to abuse, neglect and violence – where mother placed child with paternal grandmother prior to mother being sentenced to term of imprisonment – where maternal great-grandmother sought to have child live with her – child of mixed indigenous and non-indigenous heritage – risk assessment – where child requires long term reparative environment – effect of changing child’s circumstances – child ordered to live with paternal grandmother and spend time with maternal great-grandmother – child to have supervised time with mother |
| Family Law Act 1975 (Cth) |
| Australian Securities and Investment Commission v Reid [2005] FCA 1274 Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577 Ebner v Official Trustee (2000) 205 CLR 337 Goode & Goode (2006) FLC 93-286 Hort & Verran (2009) FLC 93-418 Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Mazorski v Albright (2007) Fam LR 516 McCall & Clark (2009) FLC 93-405 Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 Strahan & Strahan (Disqualification) (2009) FLC 93-414 |
| APPLICANT: | Mrs Lawson |
| 1st RESPONDENT: | Mrs Warren Senior |
| 2nd RESPONDENT: | Ms Warren |
| 3rd RESPONDENT: | Mr Lawson |
| INDEPENDENT CHILDREN’S LAWYER: | Boyd Olsen |
| FILE NUMBER: | NCC | 2311 | of | 2008 |
| DATE DELIVERED: | 4 February 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 7, 8,12,13 and 21 April 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms K O’Rourke |
| SOLICITOR FOR THE APPLICANT: | Legal Aid NSW |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms D Burns |
| SOLICITOR FOR THE 1ST RESPONDENT: | Women’s Legal Service |
| COUNSEL FOR THE 2ND RESPONDENT: | Ms V Hollins |
| SOLICITOR FOR THE 2ND RESPONDENT: | Ms Gilbert |
| COUNSEL FOR THE 3RD RESPONDENT: | No appearance |
| SOLICITOR FOR THE 3RD RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr T Bates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Boyd Olsen Lawyers |
Orders
The applicant Mrs Lawson (“the paternal grandmother”) and the respondent Ms Warren Senior (“the maternal great-grandmother”) have equal parental responsibility for the child S born … September 2002 (“the child”).
The maternal great-grandmother have sole responsibility for decisions as to the child’s day to day care when the child is spending time with her and the paternal grandmother has that responsibility at all other times.
The child live with the paternal grandmother.
Until such time that the child commences high school, the maternal great-grandmother spend time with the child as follows:
(a)During the school holidays of the Terms 1, 2 and 3 New South Wales gazetted public school holidays, commencing the first Monday morning of the school holidays and concluding the last Friday afternoon of the school holidays;
(b)During the weekend following the fifth week of the New South Wales gazetted public school term from Friday to Sunday provided the maternal great-grandmother gives the paternal grandmother 14 days notice of her intention to spend time with the child;
(c)In even numbered years, commencing 2012, for four (4) weeks of the New South Wales gazetted public Christmas school holiday period, commencing on the first Saturday of the school holiday period and concluding on the fourth Saturday of that same school holiday period; and
(d)In odd numbered years, commencing 2011, commencing on 28 December and concluding on the Saturday immediately prior to the commencement of Term 1 in the following year.
Upon the child commencing high school the maternal great-grandmother spend time with the child as follows:
(a)During the first half of school holidays of the Terms 1, 2 and 3 New South Wales gazetted public school holidays, commencing the first Saturday of the school holidays and concluding Monday in the second week of the school holidays; and
(b)For half of the gazetted Christmas school holiday period, commencing the first Saturday and concluding on the 4th Saturday in even numbered years and commencing on the 4th Saturday and concluding on the Saturday immediately prior to Term 1 in the following year.
For the purposes of changeover when the child is travelling between Sydney and Adelaide, the maternal great-grandmother meet the child at Adelaide airport at the commencement of the spending time arrangement and the paternal grandmother meet the child at Sydney airport at the conclusion of the same.
The maternal great-grandmother pays for the costs of the child’s air travel on every occasion that the child spends with her in accordance with order 4(b), and the paternal grandmother pay for the costs at all other times.
In the event the maternal great-grandmother does not spend time with the child in accordance with order 4(b), the costs of the flights for the following school holidays shall be shared equally between the paternal grandmother and maternal great-grandmother.
It is a condition of the child spending time with the maternal great-grandmother she does not permit the child’s maternal grandfather to be present at her home while the child is also present unless this is during a family event.
During the period Ms Warren (“the mother”) remains in custody she may spend periods of time with the child for such periods as allowed by the relevant prison authority and agreed with the maternal great-grandmother.
Upon the mother’s release from gaol (which shall include any period of home detention) she shall spend time with the child at a supervised contact centre on occasions and times nominated by the contact centre but for no more than three (3) occasions in any given school holiday period or one (1) occasion in any weekend period. The times she spends with the child shall coincide with periods he is with the maternal great-grandmother and shall be facilitated by her.
It is a condition of the mother spending time with the child away from gaol she is not under the influence of non-prescribed medication or alcohol.
For a period of 12 months from the date of a successful completion of a residential drug rehabilitation programme it is a condition of the mother being able to continue to spend time with the child :
(a)In the four weeks prior to spending time with the child she undergo supervised urine analysis two (2) times per week;
(b)Such urine analysis is conducted in accordance with the Australian/New Zealand Standard 4308:2001: Procedure for the collection, detection and quantitation of drugs of abuse in urine;
(c)The mother do all things necessary to authorise the collecting agency to immediately provide to the paternal grandmother and maternal great-grandmother a copy of any positive or abnormal drug screening report; and
(d)In the event the mother undergoes urine tests in addition to those provided for in par (a) above, she shall do all things necessary to authorise the collecting agency to immediately provide to the paternal grandmother and maternal great-grandmother a copy of any positive or abnormal drug screening report.
In relation to the mother spending time with the child at a supervised contact centre, she and maternal great-grandmother shall:
(a)Contact the centre and arrange an appointment for assessment for suitability for supervision of the time the child spends;
(b)Attend the assessment;
(c)Comply with any appointments made by the contact centre for supervised time;
(d)Comply with all reasonable rules of the contact centre; and
(e)Comply with all reasonable requests or directions of the staff of the contact centre
The paternal grandmother is not liable for any costs charged by a contact centre.
The mother may speak to the child weekly in relation to which the party who has the child’s care shall do her best to ensure the child is available to receive her call.
The child shall have liberal telephone communication with the maternal great-grandmother when the child is living with the paternal grandmother and the paternal grandmother facilitates the making of such telephone calls.
The child has liberal telephone communication with the paternal grandmother when the child is spending time with the maternal great-grandmother and the maternal great-grandmother facilitates the making of such telephone calls.
The paternal grandmother and maternal great-grandmother advise each other, and keep each other advised of, their current address and contact telephone numbers (including both landline and any mobile telephone number).
The paternal grandmother and maternal great-grandmother each ensure that the other is kept informed of:
(a)Any significant medical problems or illnesses suffered by the child;
(b)Any significant medication prescribed to the child; and
(c)Any other significant matter relevant to the child’s welfare.
For the purposes of communicating information between the paternal grandmother and maternal great-grandmother, the paternal grandmother and maternal great-grandmother shall communicate by telephone in respect to urgent matters.
The paternal grandmother is restrained from bringing or allowing the child to spend time with or communicate with the mother and Mr Lawson (“the father”), other than in accordance with these orders.
The maternal great-grandmother is restrained from bringing or allowing the child to spend time with or communicate with the mother and the father, other than in accordance with these orders.
The mother is restrained from communicating or spending time with the child, other than in accordance with these orders.
The father is restrained from communicating or spending time with the child.
Pursuant to s 68B of the Family Law Act each of the mother and the father is restrained from:
(a)coming into contact with the child;
(b)entering, approaching or remaining in any residence at which the child lives or spends time;
(c)entering, approaching or remaining at any school, sporting or educational facility attended by the child;
(d)coming within 500 metres of the child;
save in accordance with an order of a court made pursuant to the Family Law Act and this is an order for the personal protection of the child.
In the event of the child being hospitalised or receiving medical attention, the person with whom that child is living or spending time with at that time shall notify either the paternal grandmother or maternal great-grandmother as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
The paternal grandmother and maternal great-grandmother may attend any medical appointments in respect of the child arranged by the other.
The paternal grandmother and maternal great-grandmother must each provide the other with the names and contact numbers of any medical specialists providing treatment for the child.
The paternal grandmother and maternal great-grandmother must each provide the medical practitioner, medical centre or hospital caring for the child with an irrevocable authority permitting the other to speak with the medical practitioner, medical centre or hospital.
The paternal grandmother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the maternal great-grandmother the copies of all of the child’s school reports and merit cards and any written material pertaining to his academic and extra-curricular activities. The maternal great-grandmother shall give copies of these documents to the mother.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All prior orders made in these proceedings are otherwise discharged.
All outstanding applications are dismissed.
Notation:
A.It is anticipated that the mother may apply to this Court in the event she successfully completes a residential drug program and is able to provide evidence of having remained abstinent from illicit drugs for a 12 month period.
IT IS NOTED that publication of this judgment under the pseudonym Lawson and Warren and others is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 2311 of 2008
| MRS LAWSON |
Applicant
And
| MRS WARREN SENIOR |
1st Respondent
And
| MS WARREN |
2nd Respondent
And
| MR LAWSON |
3rd Respondent
REASONS FOR JUDGMENT
These are parenting proceedings which concern S who was born in September 2002.
On 30 June 2008 Ms Warren, who is the child’s mother, gave him to Mrs Lawson. Mrs Lawson is the child’s paternal grandmother. The child has lived with the paternal grandmother ever since.
The mother and Mr Lawson, who is the child’s father, have long histories of drug abuse and anti-social behaviour. The mother gave the child to the paternal grandmother at a time when she was heavily abusing illegal drugs and correctly anticipated she would shortly be sentenced to a lengthy term of imprisonment in South Australia.
The father has never been in a position to care for the child. He was aware the mother proposed his mother would assume the child’s fulltime care, which he strongly supported.
Four weeks after the mother gave the child to the paternal grandmother the mother was remanded in custody. She has been in gaol ever since.
Ms Warren Senior, who is the child’s maternal great-grandmother, learned of the mother’s imprisonment almost immediately. When she visited the mother in gaol she discovered the mother had placed the child was with his paternal grandmother.
It was the mother and the maternal great-grandmother’s case the maternal great-grandmother had been involved in the child’s life from birth and he had regularly spent time in her care. According to them, this continued throughout the first half of 2008 during which period the child spent one weekend a month at the maternal great-grandmother’s home and one week of the April 2008 school holidays. In any event, from her discussions with the mother the maternal great-grandmother said she understood the mother did not intend for the paternal grandparents to care for the child on a long term or permanent basis.
Although the maternal great-grandmother was unhappy the mother had placed the child with the paternal grandmother and not her, she did not commence proceedings to alter the situation. When the mother placed the child with the paternal grandmother she knew the maternal great-grandmother, if asked, would also have cared for the child. While the mother’s decision in favour of the paternal grandmother was partly influenced by the father’s attitude, the parents were not cohabiting and, indeed, the mother had re-partnered.
While with the paternal grandmother, the parties agree the child has been well cared for.
About one week after the mother was imprisoned the paternal grandmother commenced these proceedings. Simply put, she sought orders she have sole parental responsibility and the child live with her. She proposed the parents spend time with the child supervised by her and for 12 months undertake twice weekly urine drug screens. After a consecutive period of 12 weeks of negative drug screens, time with the child would be unsupervised and for such times as she and the relevant parent agreed. A positive or abnormal drug screen would result in the automatic discharge of orders for that parent to spend time with the child. Further orders were included which provided for injunctions and telephone contact.
The paternal grandmother’s application was granted short service and the matter came before a Judicial Registrar on 17 September 2008. On that occasion the paternal grandmother, but neither parent, appeared. The Judicial Registrar made orders as set out below:
IT IS NOTED
1.There is no appearance by or on behalf of the respondents at 10:45 am today.
IT IS ORDERED
2.That orders be made in terms of paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of the Interim Orders sought in the Application filed on behalf of the Paternal Grandmother on 5 September 2008 as set out hereunder:
1.That [the child] live with the Applicant Paternal Grandmother, (“the Applicant”).
2.That the Applicant have the sole parental responsibility for the child.
3.That the Applicant have sole responsibility for decisions as to the child’s day to day care welfare and development.
4.That the Applicant have the sole responsibility in relation to decisions in respect of schooling arrangements for the child.
5.That Respondent 1, [the mother], and Respondent 2, [the father] spend time with the child under the Applicant’s supervision at such times as agreed between the Applicant and Respondent 1 and Respondent 2.
6.That Respondent 1 and Respondent 2 not be under the influence of any prohibited drugs in the presence of the child and during any period of time spent with the child.
7.That the Applicant encourage the child to have regular communication with Respondent 1 and Respondent 2, including communication by telephone and in writing.
8.That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within seven (7) days of such change occurring.”
3.That the solicitor for the Applicant forward a copy of these orders to the parents at their last know address within seven (7) days from today’s date.
IT IS NOTED
4.The matter is listed on 15 October 2008 and that directions are likely to be made to prepare the matter for a final hearing on an undefended basis.
IT IS FURTHER ORDERED
5.In the event that the parents do not oppose the orders sought by the Applicant Paternal Grandmother they should indicate that in writing to the solicitors for the Applicant Paternal Grandmother as soon as practicable.
So that it is clear, the mother and father were each personally served in prison with the paternal grandmother’s application. As the mother’s subsequent participation in these proceedings has demonstrated, the South Australian prison authorities and this Court readily facilitate participation by prisoners in parenting proceedings by video and other electronic means. Had the parents wished to participate in the hearing before the Judicial Registrar arrangements would have been made for this.
In October 2008, the mother was sentenced to 7 years imprisonment with a non-parole period of 3½ years.
Although it is not entirely clear, it would appear the father was temporarily released from gaol on 17 September 2008.
On 31 October 2008, the maternal great-grandmother applied to intervene. By way of final orders, she sought sole parental responsibility and the child live with her. She proposed the child spend half each school holiday period with the paternal grandmother and he have supervised time with his parents. As to the latter, she proposed random weekly urine drug screens and that the parents’ time with the child be upon conditions agreed between her and them.
The maternal great-grandmother applied for interim orders to similar effect, including an order the child is immediately delivered to her. Her application was listed before a Registrar on 15 October 2008. On that occasion procedural orders were made and the matter adjourned until 31 October 2008 so the parents could be served.
On 31 October 2008 a Registrar dispensed with further service of the maternal great-grandmother’s application to intervene upon the parents and, with the paternal grandmother’s consent, she was granted leave to intervene. Relevantly, an order was made pursuant to s 11F of the Family Law Act1975 (Cth) (“the Act”) for a Children and Parents Issues Assessment.
The father filed an affidavit on 4 December 2008.
On 9 December 2008 the proceedings came before a Judicial Registrar. The parents participated by telephone and were unrepresented. The maternal great-grandmother and paternal grandmother were both represented and appeared personally. By consent, the Court ordered an Independent Children’s Lawyer (“ICL”) be appointed for the child and interim orders were made for the child to spend time with the maternal great-grandmother as follows:
1.That [the child] spend time with [the maternal great-grandmother] as follows:
1.1from at or around 12 noon on 8 January 2009 to at or around 6.00 p.m. on 18 January 2009.
2.That for the purposes of [the child] spending time with [the maternal great-grandmother] at Order 1, the Applicant paternal grandmother facilitate the spending time arrangement by accompanying the child on a flight to Adelaide Airport at the commencement of the spending time arrangement and [the maternal great-grandmother] accompany the child on a flight to Williamtown (Newcastle) airport at the conclusion of the spending time arrangement.
3.That for the purposes of changeover above at Order 1, [the maternal great-grandmother] meet [the child] and [the paternal grandmother] at Adelaide airport at the commencement of the spending time arrangement and [the paternal grandmother] meet [the child] and [the maternal great-grandmother] at Williamtown (Newcastle) Airport at the conclusion of the spending time arrangement.
4.That in addition to Order 1, 1.1 above, [the maternal great-grandmother] is to spend time with [the child] as follows:
4.1from at or around 4.30 p.m. to 7.00 p.m. on Wednesday 10 December 2009.
5.That for the purposes of [the maternal great-grandmother] spending time with [the child] above at Order 4, 4.1 [the maternal great-grandmother] and [the paternal grandmother] are to meet at […] train station at the commencement and conclusion of the spending time arrangement.
6.That the child [the child] have liberal telephone contact with [the maternal great-grandmother].
NOTED:
It is noted that the parties will discuss by telephone the times of commencement and conclusion of contact as such times are dependant upon flight availabilities and train times.
The interviews for the Children and Parents Issues Assessment were held on 11 December 2008. Ms T was the Family Consultant appointed to this matter; she met the child, paternal grandmother and maternal great-grandmother in person. She spoke with the parents by telephone.
The child was six years and three months when this assessment occurred.
The Family Consultant reported:
[He] presented as a “busy” child who “shut down” and ignored people who he did not know well or did not want to contemplate what was being asked of or said to him. At times he was poor at following direction and headstrong in following his own desires.
…
[The child] refused to speak about his living arrangements including making no complaint regarding his current situation.
The Family Consultant engaged the child in therapeutic play during which:
[He] expressed the view that he depends currently on the paternal grandmother and grandfather for security and care primarily and views his [paternal] cousins, [N] and [L], as people whose company he enjoys. Secondary to these people [the child] chose his mother and father and [maternal great grandmother] to accompany him to a fantasy place.
The father and paternal grandmother explained to the Family Consultant they believed the child had settled with the paternal grandmother, put on weight and was beginning to progress academically and socially. The father had not seen the child but spoke with him by telephone regularly. It was their view he would benefit from continuing to live in a close family environment. The paternal grandmother explained she would be able to foster and support the child’s Aboriginal heritage and pointed out she had an Aboriginal foster child, H.
The maternal great-grandmother and mother explained their desire to have the child returned to South Australia which was where, as the Family Consultant explained, “… he has a large extended Aboriginal family which will give him a sense of belonging and expose him continually to his culture”. Living in South Australia, as the mother explained, would enable the child to spend time with her more regularly, which she hoped would be once or twice each week. The maternal great-grandmother explained to the Family Consultant that from her perspective, the issue in contention was the child’s Aboriginality and not any issue of concern for his physical care if he lived with the paternal grandmother.
All parties explained to the Family Consultant it was their expectation the child would return to live with either his mother or father “when they have their lives together”. In her discussions with the Family Consultant, however, the paternal grandmother demonstrated a greater appreciation of the impact upon the child of his parents’ drug abuse and lifestyle and his need for a reparative environment. The maternal great-grandmother, comparatively, had less of an appreciation of the effect on the child and the mother of her drug abuse. Notwithstanding the orders sought in her Response the maternal great-grandmother explained she hoped the mother would resume the child’s fulltime care soon after her release from prison. Although it is accepted the maternal great-grandmother’s approach was influenced by cultural child rearing practices, the particular risk issues in the case suggested the maternal great-grandmother adopted a “rose coloured glasses” view of the mother’s parenting deficits. By the time the hearing concluded, the maternal great-grandmother said she believed it would be 5-7 years after the mother’s release from prison before she could be satisfied the mother would be in a position to assume the child’s primary care.
It is important to note that from her discussions with the paternal grandmother and maternal great-grandmother the Family Consultant concluded “there is no animosity between the grandparents and they were assessed as being respectful of each other’s positions and were observed to be able to communicate respectfully and kindly with each other”. From the outset, neither the paternal grandmother nor maternal great-grandmother, were critical about the other’s parenting capacity and engaged with each other respectfully and constructively. Each made appropriate concessions early and, although they viewed the child’s needs differently, sought to engage the Court process without rancour and unhelpful criticism. Unfortunately, when the final stage of this hearing started counsel for the parties adopted a more negative approach.
In terms of future direction, the Family Consultant said:
·A reparative environment needs to continue uninterrupted for [the child] in order to assist him to recover from the neglect and probable emotional abuse he has suffered.
…
·A next step may be to extend the existing interim orders to include the majority of the school holiday periods and an additional weekend each school term for [the child] to spend with whichever grandparent he is not living with…
Recommendations were made for further investigation of the parents’ and child’s circumstances and for supervised time with the parents upon conditions set out in the assessment.
The paternal grandmother delivered the child to the maternal great-grandmother at Adelaide airport on 8 January 2009. This was the first time the child returned to South Australia since he was placed with the paternal grandmother. He had not seen either parent since June 2008 and, in relation to the father, for a few weeks before then. In the intervening period the father had maintained weekly telephone calls to the child, from prison and when released. The mother rarely contacted the child with months passing between calls.
By arrangement with the paternal grandmother she commenced weekly telephone contact with the child in November 2008. This has continued and usually takes place on a Sunday or Monday evening.
Although it is not entirely clear, it would appear that prior to the child being placed with the paternal grandmother he last saw the maternal great-grandmother in May 2008. He next saw her in early December 2008 when she came to New South Wales for the Children’s and Parents Issues Assessment. The next occasion was for 10 days during the December 2008/January 2009 Christmas school holidays commencing on 8 January 2009. Until then, the longest period the child had spent in the maternal great-grandmother’s exclusive care had been one week.
The child saw the mother on 11 and 17 January 2009. These visits ranged from between 50 minutes to 2½ hours. This was the first time he had seen her since June 2008.
The maternal great-grandmother’s application for interim parenting orders was listed for hearing before a Judicial Registrar on 19 January 2009. All parties were in attendance, albeit the parents appeared by telephone. The paternal grandmother and maternal great-grandmother were represented. This hearing coincided with the child’s time with the maternal great-grandmother and her coming to New South Wales to return him to the paternal grandmother.
With support from the Independent Children’s Lawyer, the parties entered into interim parenting orders which were made by consent. These orders are set out below:
1.That [the child] live with [the paternal grandmother].
2.That the paternal grandmother have responsibility for making major long-term decisions about [the child].
3.That the child spend time with [the maternal great-grandmother] as agreed between the paternal grandmother and [the maternal great-grandmother] and failing agreement as follows:
3..1At the conclusion of the third and sixth week of each NSW school term from Friday to the following Sunday provided the child is able to fly from Sydney to Adelaide return as an unaccompanied minor;
3.2During the first half of each NSW school holiday period at the conclusion of Terms 1, 2 and 3 from Friday being the last day of school term to Sunday of the middle week;
3.3For half of school holidays at the conclusion of Term 4 being the first half in even numbered years and the second half in odd numbered years.
3.4In the event that the child is unable to fly from Sydney to Adelaide return as an unaccompanied minor, as specified in order 3.1 herein, this visit on the third week of NSW school term shall only occur if either or both the paternal grandmother and/or the maternal great grandmother makes payment for such travel.
4.That while the child is spending time with the maternal great grandmother the child spend such time with the mother as is agreed between the maternal great grandmother and the mother provided they comply with all requirements of the prison in which the mother is incarcerated.
5.That should the father be incarcerated the child spend time with him as agreed with and facilitated by the paternal grandmother.
6.Should the father not be incarcerated the father:
6.1Notify and keep notified the Independent Children's Lawyer of his address and a facsimile number to which correspondence to him can be sent;
6.2Undertake urinalysis supervised and in accordance with the Australian/New Zealand standard 4308:2001 procedure for the collection, detection and quantification of drugs of abuse in urine within 18 hours of receipt of a request by the Independent Children's Lawyer that he do so, provided there be no more than 18 such requests prior to 31 January 2010.
6.3Provide to the Independent Children’s Lawyer within 10 days of undertaking the test in 6.2 a copy of the results of such test.
7.Provided the father complies with order 6 and produces to the Independent Children’s Lawyer negative drug screening reports for a period of 4 calendar months AND the father not be charged or facing charges for any illegal activity the child spend time with the father as agreed between the father and the paternal grandmother.
8.The paternal grandmother be restrained from bringing the child into contact with the father except in accordance with these orders.
9.If the paternal grandmother is notified through her solicitor that the father has tested positive to any illicit substance the time the child spends with the father be immediately suspended.
10.That for the purposes of implementing the spending time arrangement the following occur:
10.1The paternal grandmother is to make the child available to the maternal great grandmother by 6.00 pm at the commencement of the spending time arrangement;
10.2The maternal great grandmother is to make the child available to the paternal grandmother by 6.00 pm at the conclusion of the spending time arrangement.
11.That for the purposes of implementing these orders the paternal grandmother pay for the entire costs of the child’s air travel on every second occasion that the child spends time with her (eg. Every 2nd, 4th, 6th, etc) in accordance with these orders and the maternal great grandmother pay for those costs at all other times.
12.That the maternal great grandmother have the day to day care, welfare and development of the child when he is living with or spending time with her and the paternal grandmother have that care at all other times.
13.That the paternal grandmother sign all authorities and do everything practicable to allow the maternal great grandmother to obtain a Medicare card for the child.
It will be noted the agreement provided the child would continue to live with the paternal grandmother who would have responsibility for making major long term decisions. The child would spend time with the maternal great-grandmother in South Australia for two weekends each school term and half each New South Wales school holidays.
The child spent time with the maternal great-grandmother in accordance with the 19 January 2009 orders.
These orders also provided that while the child was with the maternal great-grandmother he would spend time with the mother as agreed between them and in accordance with prison guidelines. They agreed when the child was spending time with the maternal great-grandmother for a weekend he would visit the mother on Saturdays. This involved a morning parent/child visit of 80 minutes duration and an afternoon adult visit of 40 minutes. The maternal great-grandmother was present for the afternoon visit. Although she was present at the prison for the morning visits she was not in the same room with the child and mother.
During school holidays the pattern was the child spent time with the mother on the first Saturday morning and first Sunday afternoon. Occasionally, this was supplemented by an afternoon visit on the first Saturday and a morning visit on the second Saturday. The schedule of visits with the mother is set out at paragraph 83 of the maternal great-grandmother’s affidavit. This pattern has continued.
Although the father was not incarcerated he did not contact the Independent Children’s Lawyer or otherwise comply with the above orders.
The matter came before me for the first day of a Div 12A Less Adversarial Trial on 4 August 2009. All parties participated, with the parents attending by telephone. This was the last time the father appeared. Although one cannot be certain, the father’s confused dialogue and slurred speech suggested he was affected by drugs. He was evasive about where and with whom he resided, with the address eventually provided, being one at which he was thereafter unable to be contacted. In any event, orders were made by consent as follows and noting the orders are otherwise made on an undefended basis vis the father:
1.That order 3.1 of the orders made 19 January 2009 be amended to read as follows:
At the conclusion of the third and sixth week of each New South Wales school term from Friday to the following Sunday.
2.That order 3.4 of the orders made 19 January 2009 is discharged.
3.That order 11 of the orders made 19 January 2009 be amended to read as follows:
That for the purposes of implementing these orders the Paternal Grandmother pay for the entire costs of the child’s air travel on every occasion that the child spends with the Maternal Great Grandmother in South Australia during the New South Wales school term and for every alternate school holiday period in accordance with the Orders made 19 January 2009 and the Maternal Great Grandmother pay for the costs at all other times, noting that on one visit per school term the Maternal Great Grandmother shall fly to New South Wales and spend time with the child in the area nearby the child’s current residence at the Maternal Great Grandmother’s cost.
4.That the Maternal Great Grandmother is entitled pursuant to these orders to attend upon the child’s school on a Monday after the weekend that she has spent with the child in New South Wales and is also entitled to speak with professionals at the school concerning the child’s progress and development, including the school Principal, the child’s teacher and the child’s counsellor and further that she be entitled to copies of the child’s school reports.
IT IS FURTHER ORDERED:
5.I give leave to the Independent Children’s Lawyer to issue such subpoenas for the production of such documents as she considers relevant to the issues in this matter.
6.That pursuant to s 62G(2) of the Family Law Act the parties and [the child] of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services at the Newcastle Family Court on a date and at time/s to be advised for the purposes of the preparation of a family report, such report shall investigate and report upon the following issues:
3.1the child’s relationship with the paternal grandmother and members of her household;
3.2the child’s relationship with the maternal great grandmother and any member of her household;
3.3the child’s attachments and the impact on the child of regularly visiting an incarcerated parent;
3.4the maternal grandmother’s and maternal great grandmother’s ability to protect the child from any risk of harm posed by either of the child’s parents;
3.5the child’s indigenous heritage and the issues which arise as a consequence of him being a person of mixed heritage;
3.6the effect on the child of changing his circumstances;
3.7if the child is to spend time with one of the intervenors interstate whether he can comfortably manage unaccompanied air travel;
3.8the nature of the child’s relationships with each of his parents;
3.9any other issue which the Family Consultant considers relevant.
4.The Court notes that the Family Consultant is at liberty to consult with an expert in Indigenous Cultural issues and may invite another Family Consultant or Regulation 7 Reporter to participate in aspects of the report.
5.The Court notes that the Family Consultant is not requires to personally meet with the parents if they are in prison. As neither parent seeks orders that the child lives with them and concedes supervision of their time with the child is for the foreseeable future necessary, the Family Consultant may assess the child with an incarcerated parent by video link, if in the opinion of the Family Consultant this is necessary and appropriate.
6.That further consideration of this matter is adjourned to 9.30 am on 21 October 2009.
The matters to be investigated by the Family Consultant are those identified as the issues in the proceedings. It will be noted the parties agreed it was unnecessary for the Family Consultant to investigate the paternal grandmother’s and maternal great-grandmother’s parenting capacity. This is because it was common ground the paternal grandmother and maternal great-grandmother would be able to adequately care for the child on a day by day basis. The issue in relation to their parenting capacity was identified as their respective ability to protect the child from any risk of harm posed by his parents.
The reason school term weekend arrangements for the child spending time with the maternal great-grandmother changed related to signs he was not coping with two trips each term to Adelaide. He was unsettled on the day of travel to Adelaide and for a few days thereafter. This included him being unsettled about attending school and at school. Rather than reduce the child’s time with his maternal great-grandmother the parties agreed each second weekend visit she would travel to the central coast. On these occasions the maternal great-grandmother, who does not have family in New South Wales, rents motel accommodation for three nights where she and the child stay. Including her travel costs, these weekends cost between $1,000.00 and $1,200.00. Away from the amenity of her own home the maternal great-grandmother says the quality of her and the child’s time is diminished, with him being more easily bored. I accept her evidence about the diminished quality of these visits. However, this change in arrangements has contributed to the child being more settled and is likely to have contributed to the gains at school reported by his teacher. Self-evidently, on the weekends the child spends with the maternal great-grandmother in New South Wales he does not see his mother.
Interviews for the Family Report took place in Newcastle on 15 September 2009. The Family Consultant interviewed the paternal grandparents, N who is the child’s cousin and lives with him and the paternal grandparents, the maternal great-grandmother and the child. In addition, the Family Consultant spoke with the school counsellor at the child’s school. She observed the child with the paternal grandparents and N and separately with his maternal great-grandmother.
In addition to the issues she was requested to report upon the Family Consultant considered “[a] further issue of concern … [being] the significant symptoms of trauma [the child] is assessed to have experienced and the resultant trauma behaviours he continues to display.”
As the directions enabled, the Family Consultant conferred with Stephen Ralph in relation to the child’s indigenous heritage and indigenous culture. Mr Ralph is accepted as having particular expertise in relation to indigenous matters in the family law setting. This includes, as is the situation in this case, children of mixed indigenous and non-indigenous heritage. Before commenting upon the Family Consultant’s recommendations, it is useful to refer to her assessment of the child’s circumstances before he came into the paternal grandmother’s care.
The child was three months from his sixth birthday when he was placed with the paternal grandmother. At paragraph 57, the Family Consultant accurately recorded the child was born:
… chemically dependent to two drug abusing parents and was exposed to ongoing family violence. He has experienced neglect and trauma from before birth to approximately five years of age when he came into the paternal grandmother’s care. On occasions he experienced relief from the neglect and trauma when he was cared for short periods of time by the maternal great grandmother but always returned to the neglect, violence and psychological abuse.
At paragraph 58, the Family Consultant accurately described the child as:
… exhibiting the symptoms of a neglected child who was exposed to family violence. His delay in his academic development, his “shutting down” or dissociating when asked to speak of his parents, his history of difficulty making friends at school, his inability to regulate his emotions resulting in acting out behaviours and fleeing the classroom are all identified behaviours that result from an early childhood raised in a neglectful and abusive environment.
The behaviours referred to by the Family Consultant above were demonstrated by the child during his meetings with her, or reported by the paternal grandmother and corroborated by the child’s school.
Because of the neglect and abuse to which the child was exposed in his parents’ care, the Family Consultant explained his development was compromised because during these formative years he had “been so focused on staying safe and surviving [he] has had little or no time or energy to process his experiences and react appropriately or to learn academically equal to his like aged peers.” The Family Consultant spoke favourably about the child’s improvements, confirmed by his school, since he came into the paternal grandmother’s care. The paternal grandmother had been able to provide him with “a safe, nurturing, predictable and loving environment”. It was her opinion it was imperative this type of environment continue if the child was to have a chance to achieve his full potential academically, relationally and socially.
It was the Family Consultant’s assessment of the maternal great-grandmother she “could provide a similar loving, predictable and stable environment for [the child].” However, she was concerned about and expressed as “unknown” the risk to the child involved in changing his home, school, teachers, friends and routines which would be required were he ordered to live with her.
From the Family Consultant’s assessment the pivotal factor which required consideration is given to disrupting the child’s reparative environment with the paternal grandmother was “the accepted benefits to him by living amongst his Aboriginal extended family and community.” She discussed the concept of family and “community as family” in indigenous Australian culture as involving the idea that children are not just the concerns of biological parents, but of the entire community. She explained:
… The raising, care, education and discipline of children are the responsibility of everyone. An extended family structure is based on:
- blood-related (mother, father, brother, sister, grandparents, cousin, aunty and uncle)
-marriage (aunt, uncle, cousin)
-community (Elder, neighbour, friend, organization)
-kinship system (aunty, uncle, cousin, Elder)
-non-related family (Elder, friend, community member)
-mutual respect
-a sense of belonging
-acceptance and knowledge of Aboriginal kinship ties
Kinship systems define where a person fits into the community. Kinship systems may vary across communities but the principle is the same across Australia. Kinship defines the roles and responsibilities for raising and educating children and structures systems of moral and financial support within the community. The family structure is linked with the community and with this knowledge comes a complex system of roles and obligations within the community. Aboriginal children learn at an early age the kinship ties that exist within their community and subsequently their place in their community.
With these observations I agree.
Ultimately, it was the Family Consultant’s opinion as expressed in her report, that on the information then available to her the child’s best interests would be addressed if his time was divided equally between his paternal grandmother and maternal great-grandmother. Because the paternal grandparents would continue to live on the Central Coast in New South Wales and the maternal great-grandmother would continue to live in Adelaide, distance meant this was impossible. Thus, having recommended the paternal grandmother and maternal great-grandmother have shared parental responsibility, the Family Consultant said:
If the Court finds [the child’s] best interests are served by continuing to live in the reparative environment the paternal grandmother has demonstrated she is able to provide and that this environment outweighs the benefits to [the child] of living immersed in his Aboriginal culture then it is recommended that [the child] continue to live with the paternal grandmother and spend the majority of each school holiday period with the maternal great grandmother.
If, however, the Court found there was minimal risk to the child’s psychological wellbeing in moving to live with the maternal great-grandmother and being immersed in his Aboriginal culture outweighed the benefits to him of ongoing stability, it was recommended the child live with her and spend the majority of each school holiday period with the paternal grandmother.
The Family Consultant was in court when Mr W gave evidence. He was a witness in the maternal great-grandmother’s case in relation to the child’s indigenous people and indigenous heritage and cultural issues. Mr W is a Narungga and Kauma man. He has a Bachelor’s degree in Sociology from Flinders University and a Master’s Degree in Indigenous Social Policy from the University of Technology in Sydney. His personal history, academic study and work within the Aboriginal community in South Australia qualified him to express opinions on these matters.
Mr W explained “kinship group” is a non-indigenous term used to distinguish between extended and immediate family. He said while the immediate family are responsible for the child’s daily needs, it is the kinship group that will provide the child with his or her sense of identity and belonging. Generally if a parent is regarded as not parenting adequately a senior female household member, usually a grandmother, will take over. His evidence about how a child of indigenous and non-indigenous heritage could live with non-indigenous relatives and, through contact with indigenous relatives, achieve a sound appreciation and identity with their indigenous heritage resulted in the Family Consultant recommending the child remain living with the paternal grandmother and spend time with the maternal great-grandmother for the periods Mr W said would be sufficient to ensure his Aboriginal identity and participation in culture. According to the Family Consultant this gave the child the best opportunity for reparation and recovery from his traumatic first six years of life and provided the circumstances which maximised his chances for psychological repair and avoided the consequences of him being uprooted again.
After Mr W gave evidence the maternal great-grandmother was a person committed to ensuring the child’s exposure to his indigenous community and, if the Court accepted while he is with the paternal grandmother she would positively reinforce his indigenous identity, slightly more than seven weeks a year with the maternal great-grandmother would be needed to ensure he developed a sound sense of his indigenous heritage and identity, the paternal grandmother presented a Minute of Order[1] which increased the amount of time she proposed the child have with the maternal great-grandmother. She proposed until the child commenced high school he spend 12 days during the end of terms 1, 2 and 3 New South Wales gazetted public school holidays and four weeks of the Christmas school holidays with her. Provision was also made for the child to have a weekend during school term with her. This amount of time would reduce upon the child commencing high school to 9 days for the end of terms 1, 2 and 3 school holidays and half of the Christmas holidays. This proposal was consistent with the opinion expressed by the Family Consultant and, at the end of the hearing, was adopted by the Independent Children’s Lawyer as the outcome which promoted the child’s best interests.
[1] Exhibit “L”
The hearing
This matter was listed for three days. When the matter was listed it was anticipated the mother at least would wish to participate by video link. Thus, directions were made to facilitate this and for the preparation of duplicate documents so that there was a complete set of documents in each location. In relation to documents which would be tendered, directions were made for the preparation of a tender bundle. Ultimately, responsibility for completion of the draft index for the tender bundle was allocated to the mother’s lawyers and, after the other parties had been able to respond to the draft index, for her to complete the tender bundle. The mother’s solicitor was directed to make a copy of the tender bundle available to the mother for the hearing.
As was anticipated, the mother applied for and was granted leave to appear by video link from the Adelaide Registry for the duration of the hearing. Unfortunately the tender bundle was not completed.
Issues also arose in the paternal grandmother’s case in relation to the presentation of Mr W’s evidence which, not unreasonably, given the manner in which it was presented the paternal grandmother’s solicitor objected to. Notwithstanding the objection, leave was given for the late introduction of this evidence.
In spite of these difficulties, had the case been conducted by reference to the issues identified on the first day and in the context of the concessions made by the paternal grandmother and maternal great-grandmother the hearing would have finished in the time allocated. In my view, the failure to focus on these matters increased not only the angst involved in the proceedings but also the hearing.
Counsel for the maternal great-grandmother challenged the paternal grandmother for her failure to intervene earlier to protect the child from his parents’ lifestyle. It will be recalled the paternal grandmother lived on the Central Coast in New South Wales, whereas the child lived in Adelaide. Given the maternal great-grandmother also lived in Adelaide and it was her and the mother’s case they were in regular contact and the child regularly spent time with her, of the two intervenors, it was the maternal great-grandmother who was likely to have a more intimate knowledge of what was happening in the child’s life. In other words, before counsel for the maternal great-grandmother sought to challenge the paternal grandmother’s failure to intervene it might have been anticipated this approach would result in a similar challenge being levelled at the maternal great-grandmother. Again, I was surprised when the paternal grandmother was cross-examined about another son’s death from drugs. This line of cross-examination one might have anticipated would provoke a similar approach. While I appreciate it was likely to be necessary for cross-examination about the family members with whom the child may have contact, this more wide reaching cross-examination was unhelpful.
Another complicating factor related to the mother’s evidence. She was not a good witness. Cross-examination revealed real inconsistencies between her oral and written testimony and between matters she placed before criminal courts and this Court. The mother rejected the notion she reported matters to criminal courts, which she considered advantageous, yet presented evidence at odds with it to this Court because she considered this to her advantage. Later I will discuss points of inconsistency. However, it is appropriate to record during closing addresses counsel for the mother conceded the deficiencies in the mother’s evidence were such no argument could be mounted against the Court making adverse credit findings in relation to the mother’s evidence. It is appropriate to also note the mother reasonably often appeared to be asleep. It is not my intention to convey any lack of interest by her in the proceedings.
On the morning of the third hearing day, counsel for the maternal great-grandmother sought that I disqualify myself. The application was based upon an assertion there was an apprehension of bias on my part. Specifically, it was contended by reasons of remarks I made at the end of the mother’s cross-examination on the second day as I invited the parties to consider overnight whether there was a framework for settlement, plus matters I raised with the mother, a fair-minded lay observer in the position of the maternal great-grandmother might reasonably apprehend I would not bring in impartial mind to the resolution of the proceedings. The mother did not join in the application. It was opposed by the paternal grandmother. Counsel for the Independent Children’s Lawyer did not wish to be heard in relation to the matter.
The test by which a judge decides to disqualify himself or herself is found in paragraphs 6 and 8 in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee (2000) 205 CLR 337. Ebner and the apprehension of bias principle was recently the matter of consideration by the Full Court of the Family Court in Strahan & Strahan (Disqualification) (2009) FLC 93-414. In Strahan the Full Court, per May, Boland and Thackray JJ determined that the applicable law for applications such as this is as follows, at pp 83,688 – 83,691:
3. The law concerning disqualification on account of apprehended bias is well settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the plurality of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) held at 344-349:
‘6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
...
The principle to be applied
19. Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20. This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21. It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22. The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23. Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
24. In Webb v The Queen, a case concerning a juror, Deane J identified four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information. It is not necessary to decide upon the comprehensiveness of such categorisation, and its utility may depend upon the context in which it is employed. However, it provides a convenient frame of reference.
4. In the earlier decision of Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at 492–493:
10. The disposition of this appeal depends upon the application of principles which are well established and which neither party disputed. The contention was that there had been a departure from those principles which the Full Court of the Family Court had wrongly failed to correct, thus calling for the intervention of this Court, if only to emphasise the importance of intermediate courts applying these principles. In these circumstances it is neither necessary nor appropriate to undertake any detailed analysis of the principles or their basis.
11. ... It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. [original emphasis]
12. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’.
13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of ‘the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case’. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”
(footnotes omitted) (emphasis added)
5. It will be noted that the plurality in Johnson considered it unnecessary to undertake a detailed analysis of the principles relating to apprehended bias, preferring to rely on the test of ‘whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.’ The plurality in Ebner articulated a two step process to be used in applying that test in individual cases. The first step is the identification of the matters said to give rise to the apprehended bias. The second step requires consideration of the ‘logical connection’ between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits.
6. In applying this two step process to particular cases it must be kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias. This point was firmly made by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342. Given the importance of the proposition, and the fact that Strickland J cited it in his reasons, we propose to set out what Mason J said at 352:
‘It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.’
In Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 the High Court determined a series of appeals which concerned allegations of bias by the then Minister for Immigration & Multicultural Affairs. Their Honours described what is meant by bias in a judicial setting. Hayne J, with whom Gleeson CJ and Gummow J agreed, said at par 183:
… It is necessary to consider more closely what is meant by “bias” and “apprehension of bias”. “Bias” is used to indicate some preponderating disposition or tendency, a “propensity; predisposition towards; predilection; prejudice”. It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is “anything which turns a man to a particular course, or gives the direction to his measure”.
Hayne J explained the development and application of the reasonable apprehension of bias test turned what would otherwise have been a wholly subjective inquiry into one which is objective. Hayne J said:
185.Saying that a decision maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
186.Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. In 1894, it was said that [R v London County Council; re Empire Theatre (1894) 71 LT 638 at 639 per Charles J]:
… preconceived opinions – though it is unfortunate that a judge should have any – do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded [emphasis per Hayne J].
Allegations of apprehended bias through prejudgment are often dealt with similarly (see, for example Johnson v Johnson (2000) 174 ALR 655 at 658-9).
In MIMA v Jia Gleeson CJ and Gummow J at paragraph 71 gave further consideration to the word ‘bias’. Their Honours said:
Decision makers, including judicial decision makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
Throughout MIMA v Jia one sees consideration given to the importance of the context in which the decision maker is to carry out his or her task. It was explained rules developed in the context of judicial decision making would not automatically apply, for example, to administrative decisions. The rules, processes and legal requirements which apply to the particular decision making role are relevant. In relation to courts and judges, Hayne J explained the decision making context thus:
178.Courts in this country make decisions by procedures that are both formal and adversarial. They do so by the application of rules for decision making which, although not always defined with absolute certainty, are generally discernable before the contest is joined and are set by legislative or judicial processes which are external to the judge. The process of adjudication is generally conducted in open court. The judge must give reasons for the decision that is reached.
179.Importantly, the rules about judicial prejudgment recognise that, subject to questions of judicial notice, judges, unlike administrators, must act only on the evidence adduced by the parties and must not act upon information acquired otherwise. …The central task and, it may be said, the only loyalty, of the judge is to do justice according to law.
The Full Court in Strahan adopted paragraph 12 of Johnson v Johnson. This is where the plurality observed it must be remembered ‘the person being observed is a “professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial.” This is to be undertaken in the context of ordinary judicial practice, which it was noted is not fixed in time.
In Strahan the Full Court also adopted paragraph 13 of Johnson v Johnson where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ referred to the level of knowledge imputed to a hypothetical fair-minded lay observer. This would include, as was made plain in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 per Mason CJ and Brennan J, the imputation the fair-minded lay observer would have knowledge of the actual circumstances of the case.
In Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577 Callinan J at paragraph 177 said:
It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried.
In a similar vein Lander J in Australian Securities and Investment Commission v Reid [2005] FCA 1274 reviewed authorities concerned with the level of knowledge and characteristics imputed to the fair-minded lay observer. At paragraph 110 his Honour described such a person as one:
… who is reasonable and fair minded, who has a general understanding of the facts and circumstances surrounding the case, who is not a lawyer but is not wholly uninformed and uninstructed about the law in general, and who would ordinarily think that a judge will act so as to ensure both the appearance and substance of fairness and impartiality without at the same time rejecting the alternative possibility.
Turning then to the matters at issue. There were six matters said to give rise to an apprehension of bias. Counsel for the maternal great-grandmother said none individually would be sufficient to found an application I disqualify myself. It was submitted that considered in combination they were sufficient.
The first matter related to questions I asked the paternal grandmother. These related to observations about the extent to which the mother had exposed the child to his indigenous heritage and his understanding of his indigenous culture when he came into her care. Also, excluding the maternal great-grandmother, the extent to which the child’s maternal family had sought to maintain contact with him. These questions, it was submitted, suggested a preconceived view favourable to the paternal grandmother’s case.
With respect to the submission, the extent to which during the child’s first nearly six years he had participated in his indigenous heritage and culture were relevant, as was the extent to which the child identified as Aboriginal when the mother placed him with the paternal grandmother. In a similar vein, questions designed to elicit information about the extent to which maternal relatives sought to maintain contact with the child after June 2008 were relevant. While there may have been cultural reasons why this did not occur, it was relevant to know what had or had not occurred.
The next matter related to questions I asked the paternal grandmother about H. H is N’s half-sister but no relation of the paternal grandmother’s. At the request of the Department of Community Services (“DoCS”) the paternal grandparents assumed N and H’s care more than a decade ago. H’s father is an indigenous Australian and it is through him her indigenous heritage is established. Counsel for the maternal great-grandmother cross-examined the paternal grandmother about efforts made by her to establish and maintain contact by H with her indigenous paternal family and heritage. I asked the paternal grandmother about the extent to which H’s paternal family maintained contact with her. This revealed H’s father did not self identify as an indigenous Australian and the child’s paternal family had not maintained contact.
It was submitted by counsel for the maternal great-grandmother these questions suggested a preconceived view favourable to the paternal grandmother’s case. As I understood the submission, the subject matter of the questions “may cause an apprehension of perceived bias in non-informed expectation of what is culturally appropriate or not appropriate, or allowed/able to be done”. In other words this suggested the Court failed to appreciate it was culturally consistent for H’s indigenous relations to not maintain contact with her and potentially undermined an adverse submission which might have been made. Again I observe it was necessary to establish the facts of what had or had not occurred.
The next matter related to questions I asked the mother about the history she gave Dr R compared to her evidence. Dr R is a forensic psychiatrist the mother consulted in 2009 in relation to charges for trafficking a controlled drug. As I mentioned earlier, there were important inconsistencies and/or differences by omission in the information the mother gave Dr R compared to her evidence. In relation to inconsistencies, as an example, through her reliance on Dr R’s report the mother presented evidence she began heroin use at 15 years, in relation to which she remained a regular daily user until she became pregnant at 19 years. Prior to her pregnancy she said she gave up methadone and heroin. In her affidavit and oral evidence she said she did not use illegal drugs while pregnant with the child.
Clinical records from North Western Adelaide Health Service in relation to the child’s birth record the mother informed the hospital she used heroin until the end of April 2002, that is, until 4½ months before the child was born. In terms of heroin, she said she was using $500.00 - $700.00 daily. Prenatal, the mother’s medical advisors sought to stabilise her on 30mg of methadone a day, in relation to which the medical notes record, she said she needed more. Because the mother could not be stabilised on 30 mg, doctors increased her methadone dose to 60mg.
The mother told Dr R she was raised by her parents until they separated when she was three and then by her father and stepmother until, at 11, she ran away and thereafter lived between her father’s home and on the streets. In these proceedings the mother and maternal great-grandmother said a significant amount of the mother’s childhood was spent living with the maternal great-grandmother.
These are just some of the inconsistencies I found troubling. Thus, well into her cross-examination, the mother was asked by me if she could reconcile inconsistencies of this type and, to address the notion she may be perceived as providing inconsistent material to different courts for perceived advantage. It was submitted that raising with the mother the notion she appeared to be saying one thing to this Court and another in criminal proceedings suggested “a preconceived view of the credit of the mother, whereas a fair-minded lay observer may have formed the view from the mother’s responses she did not comprehend the point of her Honour’s line of questioning, and was coming from a different tangent, which was not clarified by her Honour”. No confusion or misunderstanding was apparent. Had there been this was available to clarification in re-examination.
The next matter arose from cross-examination by the solicitor for the paternal grandmother of the mother in relation to steps she had, or had not, taken to obtain police and/or court assistance to protect herself from the father. Albeit, identified as “not verbatim”, complaint was made I said to the mother something like “the point that is being made very well at this moment is that you did not give the police what they needed to charge and help them to protect you”. With this notion the mother agreed.
It is submitted factual errors made by the solicitor for the paternal grandmother during cross-examination evidenced bias on her part and my remarks evidenced a preconceived view or favoured the paternal grandmother’s case. There was no application to restrain the paternal grandmother’s solicitor from continuing to appear. In fairness, nothing which occurred in the proceedings would have warranted such an application. As to the latter proposition, the point which cannot be overlooked is the mother agreed with the notion raised by me.
The next complaint relates to questions I asked the mother in relation to prior relationships and pregnancies. It was submitted these matters were irrelevant. It was also submitted that when I asked these questions my voice “was slightly raised” and I appeared to lean towards the witnesses’ image on the video monitor. I do not know whether my voice was slightly raised. It is possible it was. Messages were relayed from Adelaide on a number of occasions about sound issues and, as is often the case, there were difficulties ensuring adequate sound quality. From time to time I requested counsel and witnesses to speak up to ensure adequate sound quality in Adelaide.
The physical layout of video facilities in Newcastle is that on the bench there is a video monitor for the judge and witness to see each other, a larger video monitor on one wall and one behind the judge’s bench which can be seen from the body of the Court. Unless when addressing a witness giving evidence remotely the judge turns to the monitor on the bench the witness views the judge in profile. While my understanding may be incorrect, it is however my practice in video proceedings to speak up and face the monitor on my bench.
I thought it was self-evident that a parent with a significant drug and anti-social history, whose personal life suggested past trauma but who had not engaged in ongoing therapy with a health professional and had been diagnosed as possibly bipolar, with post-traumatic stress disorder and depression but said having completed a drug rehabilitation program upon release and by being free of illegal drugs, she could resume the child’s care and be accepted as able to care for him long-term, failed to appreciate the reality of her situation. Sadly, it became necessary to raise issues with the mother which might prompt her to better appreciate there was far more to her situation than addiction which compromised her parenting capacity. Not only for the child’s sake, but also her own. In other words, her personal issues were far greater than chronic drug abuse.
The final matter was the Court’s invitation to the parties to have settlement discussions. Counsel pointed out I acknowledged there was more evidence to come and the awful nature of the matters adduced in the mother’s finished evidence. I referred briefly to the Family Consultant’s evidence the child needed a reparative environment which the paternal grandmother, according to the Family Consultant, had provided. I floated the idea it was difficult to argue that the child should now be uprooted. I suggested these were matters the parties needed to consider. It was submitted these remarks may cause a latter witness, relevantly the maternal great-grandmother, to feel intimidated and pressured into settling against her belief as to the best interests of the child. Self-evidently, the matter did not settle. It was also submitted these remarks demonstrated an apprehension of bias in favour of the paternal grandmother’s case.
The days of a judge’s sitting mute are long gone. Not only does this not accord with common trial management across many jurisdictions, active involvement of a trial Judge in family law proceedings is promoted by Div 12A. It is relevant there was no application by the mother I disqualify myself in relation to matters I raised with her. All matters raised by me were germane to the case at hand. I do not know how I could have asked the mother questions, allowed her to see me and hear what I was saying, without turning to her. I do not believe addressing questions to the body of the court rather than facing a witness is widespread. While I may have spoken in a slightly raised voice the notional bystander would have taken into account the proceedings were being conducted by video and been aware there were sound quality issues. My invitation to the parties to consider at the end of day two the opportunity to have settlement discussions were appropriately caveated and would not even be categorised as an expression of views, whether preliminary or even less formed. I have explained how I perceived the matters I raised were germane to the matters at hand. In short, with respect to the submissions made on behalf of the maternal great-grandmother I do not accept a fair-minded lay observer, in her position, would apprehend bias as a consequence of the matters relied upon. Thus, the application I disqualify myself, was dismissed.
The applicable law
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64B). They arise in proceedings conducted under Pt VII of the Act. Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children”. Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child, has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)). Thus, if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements.
Section 60B sets out the objects of Pt VII and the principles, which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensure that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.The objects of this Part are to ensure that the best interests of children are met by:
(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.
2.The principles underlying these objects are that (except when it is or 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).
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.
Unlike the paternal grandparents, the maternal great-grandmother has never had a primary carer relationship with the child. This is an important distinction. I am not satisfied he would manage a transition from his paternal grandmother’s care to hers. This child has particular difficulty with change, which he finds stressful and anxiety provoking. He has experienced terrible losses, particularly with his parents coming in and out of his life and through neglect, trauma and abuse with the effects identified by the family consultant. For a child with the traumatic initial years of life which this child endured, it is contraindicated to take steps which will add to his sense of uncertainty and which are likely to cause him further trauma.
This is not an issue about the maternal great-grandmother’s parenting capacity per se but rather the serious risks for this child in both the short and long term of being removed from family and school environments where he is settled, happy and his needs are appropriately addressed. Because of the child’s history prior to June 2008 he has particular emotional and intellectual needs which, because since then these have been competently attended to by the paternal grandmother, she has a superior capacity to meet in the long term. These are findings to which I attached significant weight and which weigh in favour of the paternal grandmother’s application.
So it is clear, the evidence has demonstrated strongly neither parent has the capacity to meet the child’s emotional and intellectual needs. While the maternal great-grandmother has the capacity to meet the child’s emotional and intellectual needs when he visits her, his particular needs for stability and continuing the reparative environment he has benefitted from since June 2008, means these needs are unable to be met by her.
I have already referred to the issues which relate to the difficulty and expense of the child travelling between the Central Coast of New South Wales and Adelaide. Both are sufficiently great the focus of the child’s time with the grandparent with whom he does not reside must be school holidays. The frequency of travel during school term is limited by cost and the disruptive effect this change in the child’s routine has upon him. To alleviate some of the child’s stress associated with the travel, the paternal grandmother stopped telling the child before his mid-term visits he would be travelling to Adelaide later in the day. This met with some success. Although the maternal great-grandmother said she perceives no difficulty for the child in making these journeys, it is the paternal grandmother, who is better placed to observe these.
The child travels as an unaccompanied minor. Each journey requires the paternal grandmother to drive him to Sydney airport where he is delivered to the flight. The flight is then approximately one and a half hours and he is met at the other end by the maternal great-grandmother who drives him about one hour to her home. The costs of the child’s unaccompanied flights vary, and thus far have ranged between about $392 and $447 return. In addition, the return journey and associated costs between the Central Coast and Sydney airport cost the paternal grandmother approximately $100. For her, each delivery and collection takes about five hours.
The child has generally managed the flight as an unaccompanied minor quite well. However, on a flight prior to the hearing, he was disruptive. When the paternal grandmother collected him, a flight attendant told her the child was very disruptive on the flight because of which they needed to move passengers. She was told if a report is made the child would not be able to travel unaccompanied again. Apparently the child was hungry and displeased by the proffered apple. The paternal grandmother has not received further contact from the airline and thus, presently there is no impediment to his unaccompanied travel.
Both the paternal grandmother and maternal great-grandmother are understandably concerned about the costs of travel, with this being a particular concern to the maternal great-grandmother if time she spends with the child is significantly restricted to visits on the Central Coast. Not only does she struggle with this now, upon her imminent retirement regular visits to the Central Coast will be financially unsustainable. For so long as the paternal grandmother continues to receive welfare payments for the child at the current level, she is able to continue to contribute to the costs of the child’s airfares at their current level.
I have already discussed the parties’ capacity to provide for the child’s emotional and intellectual needs. For the reasons previously given, neither parent has the capacity to provide for the child’s needs, including his emotional and intellectual needs. Neither parent paid any attention to his need to attend school and his physical, emotional and intellectual needs were afforded less priority and focus than their need for drugs. While there were times when the mother was able to prioritise the child’s needs ahead of her own, for children’s emotional needs to be provided for, their care needs to be consistent. Unfortunately, the mother has never been able to provide consistently for the child and, because of the inconsistency, his needs overall were unmet.
The paternal grandmother has demonstrated sound understanding of the child’s needs which she has competently provided for since he was placed in her care. She was questioned about the child’s school attendance, in particular whether she demonstrated an incapacity to ensure the child attended school sufficiently regularly for his intellectual needs to be fulfilled. His school reports show three whole day and four partial day absences for semester 2, 2008; eleven whole days and nine partial days for semester 1, 2009; and four whole days and nine partial days for semester 2, 2009. I have already referred to his attendance during 2010 which was satisfactory. The child had considerable difficulty settling into school. He has had a number of unremarkable childhood illnesses and there have been difficulties with school attendance associated with his anxiety about his trips to Adelaide. This pattern of absences show an overall improvement and the school staff who gave evidence were complimentary about the paternal grandmother’s engagement with the school in relation to the child, his presentation and what they perceive as her cooperation with steps taken by them to help him settle at the school.
I am comfortably satisfied the paternal grandmother is able to meet the child’s needs long term.
Had the mother given the child to her maternal great-grandmother in June 2008 it is likely the child’s physical, emotional and intellectual needs would have been appropriately met by her. Had the child lived with her since June 2008, he would probably be settled in her care and the argument against changing his circumstances because of the effects upon him emotionally and educationally, would thus have been available to her. However, because the child has lived with the paternal grandmother, he is well entrenched in a pattern of life where his needs have been met, he relies upon her for these and because of his particular difficulties with change, she is better able to meet these long term. There are weighty considerations.
There are no further s 60CC(3)(g) considerations which require discussion.
Subsection 60CC(h) requires the Court to consider an Aboriginal or Torres Strait Islander 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 the likely impact any proposed parenting order under this part will have on that right. For the purposes of this section, s 60CC(6) provides 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
(ii)to develop a positive appreciation of that culture.
This is an important matter.
In Hort & Verran (2009) FLC 93-418 the Full Court drew together the jurisprudence in relation to how the factors applicable to Aboriginal children are to be applied. Their Honours said:
106.In Davis & Davis and 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.
I have already referred to the expert evidence given by Mr W. Amongst other matters, he gave evidence about how an Aboriginal child is accepted in his or her family and community. He spoke of the adaptive nature of indigenous culture and the importance for an indigenous child of an active experience of his immediate and extended family’s lifestyle and traditions. Culture, he explained, is about trial and error and learning by example. As I understood his and the maternal great-grandmother’s evidence, it is not about any specific aspect of culture, but rather for the child to have the opportunity to be around family in order to establish awareness, identity and belonging. Without this an indigenous child may feel confused and alienated. As they reach adolescence there may be an overwhelming sense of dislocation and confusion of identity. These matters are accepted.
Mr W had met the child on five or six occasions, albeit not recently. It was his opinion it was not essential for the child to acquire his knowledge and receive positive reinforcement of his indigenous cultural background solely from his indigenous family or people from the same clan. He explained the child’s non indigenous grandparents could learn about indigenous culture and history and provide education and knowledge on culture. If the child lived with his white grandparents, he considered spending half of the school holidays, or seven weeks annually, with his Aboriginal great-grandmother in his formative years would be insufficient to establish the child’s indigenous identity personally, and within his community.
He explained Aboriginal people were quite territorial and the child needed a proper opportunity to establish his relationship with his own people. It is his experience Aboriginal children, who do not look Aboriginal, were more likely to experience racism in both the indigenous and non-indigenous community. He said an indigenous child, like the subject child, who does not have an Aboriginal appearance, would more likely be scrutinised by the Aboriginal community. Thus it was important such a child was afforded a proper opportunity to establish his or her direct relationship with his or her own people. His point being this would maximise the opportunity for participation as well as acceptance.
The maternal great-grandmother holds a very strong belief the child needs to live amongst his people in order to establish kinship ties and understand the complex system of roles and obligations in this community in order to develop a positive appreciation of that culture. She spoke eloquently of her own childhood experience of removal and her concerns about what she described as the paternal grandmother and the father’s “attitude” to the child’s Aboriginality. The mother shares her grandmother’s beliefs. She explained “the removal of an Aboriginal child from their environment into a white environment can have devastating longer term effects. I know that as a result of my own upbringing the lack of contact with the Aboriginal community that I have been severely affected and I felt lost.” While I accept her sentiment, the mother’s evidence contained in the second sentence is potentially misleading. This is because the mother was raised by her Aboriginal family and was not deprived contact with the Aboriginal community.
In any event, the parents did not develop the child’s appreciation of his indigenous heritage and culture. The mother and maternal great-grandmother say the father referred to the child as being “white”. To the mother he was dismissive and unsupportive of the notion the child might embrace his indigenous heritage. Thus, whilst they cohabited, she did not take steps to expose the child to his indigenous heritage. Nor, when she and the child lived together but without the father, were steps taken by her to encourage the child’s exploration of his indigenous heritage. Any meaningful steps which were taken were initiated by the maternal great-grandmother. These included her arranging the allocation of housing through an Aboriginal cooperative for the mother. She included the child in family functions with his indigenous relatives. She has taken him to indigenous community events and activities. The maternal great-grandmother has spoken to the child about him being an indigenous person, told him stories and shared language with him. She has not yet taken him to the Yorke Peninsula but plans he visit there with her. She emphasised, if the child resides with her he will have the opportunity for regular contact with his extended maternal family and to be involved in their indigenous community. She saw this as maximising the child’s opportunity to develop a sense of belonging within his indigenous community and family. Against this background, she said the child would come to realise he could rely on his indigenous family, regardless of what happens in his life.
The maternal great-grandmother was concerned about how the paternal grandmother and father deal with the child’s Aboriginality. She says after the child had been with his father, he would say things like “my daddy says I’m white and not black like you.” Similarly, the child’s reference to his maternal grandfather as “black poppy” is a term not used in her home and, it is her assumption it came from the paternal grandparents’ environment. In the January 2010 school holidays, whilst she and the child were colouring a picture, he said to her “you do the Aboriginal one you know the colours.” The maternal great-grandmother replied “you’re Aboriginal too” to which the child replied “only a little bit.” Both the mother and maternal great-grandmother did not consider the paternal grandmother had made sufficient effort with H to promote H’s connection with her Aboriginal heritage.
The child’s reference to “black poppy” is consistent with a discussion the paternal grandmother had with the child when she sought to clarify why he was nervous when he spoke with an Aboriginal man at an Aboriginal function at their local library. She asked the child whether this was because he was “dark.” The child agreed this was the reason. Issues about skin colour are sensitive. The mother’s experience with her step-mother, half-siblings and in prison of non-acceptance because of her Anglo visage demonstrates how difficult this can be for children of mixed cultural heritage. The maternal great-grandmother told the family consultant a person cannot be “part black” either they are “black or they’re not”. Her statement came from a sense of identity and pride rather than negativity concerning the child’s non-Aboriginal heritage. The point which was established is that discussions about skin colour occur in the maternal and paternal families. However, it is not my assessment the paternal grandmother, maternal great-grandmother or mother intentionally used these words to undermine any particular aspect of the child’s heritage. Nonetheless, now this issue has been raised I am confident they will ensure they are more careful in the future and the child protected from these types of comments in the future.
At the child’s School, upon his enrolment, the paternal grandmother met with the school’s Aboriginal coordinator and advised him of the child’s Aboriginality. Attached to her affidavit is a copy of that school’s Aboriginal education program in which the child has participated. The school commented, favourably upon the paternal grandmother’s active participation with the child in this program. The paternal grandmother encouraged H’s appreciation of her Aboriginal heritage. Primarily, this involved participation in activities through her school but included NAIDOC activities. H did not have contact with her indigenous family, which is a matter for which the paternal grandparents, DOCS and her indigenous family share responsibility. I appreciate there were barriers which made it hard for H’s indigenous family to maintain contact with her. However in circumstances where her father does not self-identify as an indigenous Australian, it cannot be assumed that had the child maintained contact with him and his family, her knowledge and participation in her indigenous heritage would have been greater than it is. The situation for H and the paternal grandparents was particularly difficult and on balance I am satisfied they genuinely attempted to positively reinforce H’s awareness and appreciation of her indigenous heritage. H has not maintained an ongoing connection with her indigenous heritage and the evidence is she does not self identify as Aboriginal. In other words, she self identifies with her non indigenous heritage. These days, H’s non indigenous mother’s influence is strong. In short, while I am satisfied the paternal grandmother sought to foster the child’s knowledge of and connection to Aboriginal culture, I agree more could have been done by her and those to whom I have made reference.
In the article by Ralph referred to in Hort and Verran he discussed he pointed out:
In some families, for example, a parent may be of Aboriginal descent and identifies as Aboriginal yet, for various reasons, the parent may lack an active involvement in the life of the Aboriginal community or group with whom they identify and they may appear to possess little knowledge of culture, traditions and customs.
He points out, that in this setting:
The child’s connection to culture … may not be such that it allows the child to actively ‘participate in the lifestyle, culture and traditions of their people’ in the manner described by Davis and Dickstein.
Ralph went on to say:
For children who uneasily straddle the divide between Aboriginal and non-Aboriginal society the fostering of their connection to Aboriginal culture in a careful and sensitive manner may promote the development and experience of a ‘special’ individual identity. This process must be informed by the wishes of the child, where appropriate, and be sensitive to the child’s experience of racism and the effect this may have had upon their perception of themselves, their family and Aboriginal culture. With support and sensitive guidance from others, children may come to take pride in their heritage and reshape their own identify in accordance with a new perspective upon themselves, their ancestry and their place within contemporary Aboriginal society. The significance of this connection to culture in such cases rests in the child’s potential need for support from an Aboriginal parent or carer and other Aboriginal people in dealing with the complex issue of what it is to be an Aboriginal child growing up in white society. Although this might not be an immediate and vital concern in considering the needs of an infant child, in the long term it is very likely to be a crucial factor influencing the child’s passage through adolescence and later adjustment as an adult.
I agree with the maternal great-grandmother the strategies she would adopt would maximise the child’s opportunity to take pride in his Aboriginal heritage and form his own special identity. She is the person best able and most likely to maintain the child’s connection with his indigenous family and community. Simply put, the more time the child spends with her the greater his participation in his Aboriginal heritage. This is an important advantage which weighs in favour of the maternal great-grandmother’s application.
On the other hand, the paternal grandmother impressed me as being genuinely respectful of the child’s Aboriginal heritage. I accept she will provide positive reinforcement for the child of this. It is noteworthy she advised the school of the child’s indigenous heritage as soon as she enrolled him. Thus whatever views against respecting the child’s indigenous heritage which the father may have, they are not adopted by her. She seemed to listen intently when matters in relation to the child’s indigenous heritage and culture were discussed, particularly by the family consultant, the maternal great-grandmother and Mr W. I am satisfied she will maintain the child’s enrolment in schools which include the type of programs available at the child’s school. Importantly, she has demonstrated her willingness to facilitate the child’s relationship with his maternal great-grandmother and do, what she needs to do, when he is in her care, to ensure he has an appreciation and participation in his indigenous heritage. The point being that with regular periods with his maternal great-grandmother he will be actively involved in his indigenous immediate and extended family. He will thus have the opportunity to be accepted within his indigenous community and would not be solely reliant on the paternal grandmother in relation to this important matter. In summary, even if the child resides with the paternal grandmother, I am satisfied he can establish his indigenous identity and appreciation of this aspect of his heritage.
I have already addressed the parents’ attitude to the child and parental responsibility. Family violence issues have also been traversed.
Section 60CC(3)(l) requires that the Court consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings in relation to the child. Irrespective of which application succeeds, there is a prospect of further litigation by the parents. Because of the uncertainty about their futures, particularly in relation to their ability to make and maintain the lifestyle changes which have been discussed, this cannot be avoided.
Section 60CC(4) and (4A). There is considerable overlap between ss 60CC(4) and (4A) with s 60CC(3). Prior to June 2008, by and large major long term decisions were made by the mother alone. No criticism is made of her for this approach. The father has not supported the child financially and, post-June 2008, the paternal grandmother has been solely responsible for the child’s financial support while he has been in her care. The mother has spent time with the child in gaol with appropriate frequency, and, is now regular in her telephone contact with him. Of course the father is restrained by order from contacting the child, these matters do not require further consideration.
CONCLUSION
When making a parenting order, the Court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances specified in s 61DA(2) and may be rebutted if the Court is satisfied application of the presumption would not be in the child’s bests interests. Because of my findings about family violence the presumption does not apply. From the outset the paternal grandmother supported equal shared parental responsibility between her and the maternal great-grandmother. The mother and maternal great-grandmother wanted the maternal great-grandmother to have sole parental responsibility. Plainly, the paternal grandmother’s approach was inclusive and signalled her genuine desire to cooperatively care for the child in conjunction with the maternal great-grandmother. It was only towards the latter part of the hearing that the maternal great-grandmother agreed equal shared parental responsibility with the paternal grandmother would be appropriate. I am strongly satisfied such an outcome is in the child’s bests interests. This will ensure that two caring relatives, from each of his cultural heritage, contribute to and make major long term decisions about him. They are able to communicate with each other and are respectful. This suggests where disagreements arise, if they do, they have the capacity to communicate and problem solve.
The evidence firmly established the child has been well cared for by the paternal grandmother. He has a deep need for a long term settled and reparative environment if he is to recover from the trauma, abuse and neglect he has experienced. In the paternal grandmother’s care the child has settled into school. His school needs are well met and attended to by educators who now have years of experience and knowledge of his particular needs. This child is particularly sensitive to change, with changes to routine generally resulting in him feeling anxious and stressed. Removal from the paternal grandmother’s care involves significant risk to the child’s psychological wellbeing. Exposing the child to such a risk would only be warranted if other significant matters relevant to be long term interests made such a step appropriate.
There are two particular factors which weigh in favour of changing the child’s circumstances. These are by living with the maternal great-grandmother the child will be immersed in his Aboriginal heritage. It is this option which provides the clearest set of circumstances for the child to appreciate his Aboriginal heritage and participate in its kinship, culture and traditions. This is the setting in which the child’s appreciation of this component of his heritage and culture would be maximised. The other matter relates to the child’s relationship with his mother. Because she lives in South Australia, it is far easier for him to regularly spend time with her and transition to her care. However, because of the mother’s parenting deficits and the steps she needs to take for anything other than supervised or limited unsupervised time with the child could be contemplated, this is not as significant an issue as the importance to the child of maintaining a settled and reparative environment. So that it is clear I accept it was culturally consistent for the mother to place the child with other family members when she was unable to care for him and that she expected he would be returned to her. Also that without the mother specifically saying so, it was culturally consistent for her to expect the child would be placed with her. While these cultural practices are understood the Court’s task is to promote the child’s best interest.
I have previously explained why I am satisfied the paternal grandmother is the party best able to meet the child’s continuing emotional and psychological needs. Also, that I am satisfied she is respectful of the child’s Aboriginal heritage and that with her support of the child’s relationship and contact with his maternal great-grandmother, even if he lives with her, he will have a good appreciation of his Aboriginal heritage and participation in Aboriginal life. While he is with the maternal great-grandmother, she will immerse him in a real way and, provided his contact with her is sufficiently often, his exploration and participation in his indigenous extended family and his sense of Aboriginal identity should be strong. The effect of these findings is I am strongly satisfied it is in the child’s best interests to continue to reside with the paternal grandmother.
Thus the child will continue to reside on the Central Coast in New South Wales and the mother and maternal great-grandmother will live in South Australia.
I do not know if the mother’s application for home detention will be successful but proceed on the basis there is a reasonable likelihood it will be. Also, there is a reasonable likelihood, that with the support of the equivalent of probation and parole, she may obtain a place in a residential drug rehabilitation facility. Experience supports the notion whether on home detention or, after a settling in period in a residential drug rehabilitation facility, the mother would be able to spend time with the child at a contact centre. Obviously this issue does not arise until the mother is released from gaol. In relation to the mother I am not satisfied the child should spend time with her away from a professionally supervised setting. The risk of her relapse into drug abuse upon her release from gaol is high. I do not accept that supervision by probation and parole authorities or conditions for home detention or parole reduce her risk of relapse to a significant degree. One needs only consider the parents’ ongoing drug abuse and engagement in antisocial activity whilst on various bonds to be of good behaviour and under supervision, to appreciate it would be naïve to conclude differently. The mother has a great deal to attend to beyond addressing addiction before she is assessed as likely to be able to safely and appropriately spend time with the child. Her criminal antecedents and personal history show she has lived in an antisocial milieu for over a decade. Only after a lengthy period of living independently in the community away from the milieu and environment which has dominated her life for so long would there be anything less than an unacceptable risk to the child she would embroil him in a dysfunctional and unhealthy lifestyle.
As I understood it, it is common ground that the family consultant’s evidence adolescence for this child could be particularly challenging is accepted. I agree. It is my view it is important for him to be as settled as possible before then. In relation to his indigenous heritage he needs to have a proper opportunity to connect with his indigenous immediate and extended family so that he can have clear sense of identity before he reaches adolescence. The time proposed by the paternal grandmother and Independent Children’s Lawyer for him to spend school holidays with the maternal great-grandmother before he starts high school provides a proper opportunity for this to occur. Once the child starts high school he also needs an appropriate amount of time in his home environment to nurture friendships which are likely to be important to him. Thus, reducing holiday time in South Australia to one half of each holidays once he starts high school is appropriate and is unlikely to compromise the child’s identity or relationships with the maternal great-grandmother and mother. Provision is made for the child to have one visit to South Australia mid term every term. More frequent trips during term would impose too high travel costs for the maternal great-grandmother and the paternal grandmother. Even more significant is the effort and disruption these trips created for the child.
I am conscious the mother would prefer to have more time with the child and for it not to be restricted to a contact centre. However the risks she presents are too high for unsupervised time or supervision by anyone other than an agency experienced in this particular role.
There are a series of orders in relation to drug screening and the mother being free of non prescribed medication and alcohol when she spends time with the child. It is my expectation the mother will be required to undergo random drug screening upon her release from gaol and also while in rehabilitation. Thus the orders only require her to commence drug screening after she has finished her residential drug program. Because these screens come at a cost which the mother may struggle to afford, they need only occur during the four week period prior to her spending time with the child. The nature of addiction is such I am confident if she has relapsed this would be revealed. As the notation to the orders shows, it is the Court’s expectation that if the mother is able to be drug free for 12 months after she has completed rehabilitation, there is a framework to consider whether unsupervised time with the child would be in his best interests. Because so much about the mother’s future is uncertain the Court could not safely make orders for unsupervised time. In relation to the amount of time the child has with the mother, this will be specified by the contact centre. Usually these periods at contact centres are no more than two hours. The frequency of the child’s time with her is influenced by how often he will be in South Australia and maintaining a relationship with her. More frequent periods of time would intrude into his time with his maternal great-grandmother with whom the child has a healthier relationship and also make it difficult for him to have proper amounts of time with other family and community members. Provision is made for weekly telephone calls. This is a frequency the mother should be able to maintain.
The other orders are self explanatory. Provision is made for the communication of important information about the child as well as injunctions designed to keep him as safe as possible. The costs of travel are shared. The maternal great-grandmother and paternal grandparents’ modest means make this approach appropriate.
For these reasons I am satisfied the orders identified at the start of this judgment are in the child’s best interests.
I certify that the preceding two hundred and forty (240) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 3 February 2011.
Associate:
Date: 3 February 2011
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