M and L - [2006] FMCAfam 488

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & L

[2006] FMCAfam 488

FAMILY LAW – Children – best interests – living arrangements for two children aged 8 years and 4 years – children have an Aboriginal background from both their maternal and paternal aspects – appropriate parenting orders to facilitate meaningful relationships between children and their parents – role of grandparents – Aboriginal kinship obligations and child-rearing practices – children’s right to maintain connection and to explore Aboriginal culture considered in context of children’s cross-cultural background.

Family Law Act 1975 – ss.60B, 60CA, 60CC, 61DA, 61F, 64B, 65DAA, 65DAC, 65DAE

Mabov Queensland [No.2] 175 CLR 1
Goudge and Goudge (1984) FLC 91-534
Re: CP (1996) 21Fam LR 486
Sanders & Sanders (1976) FLC 90-078
H & H (2003) 30Fam LR 264
Brown & Ferguson (unreported) Moore J, 23 February 1998

Applicant:

S M

Respondent:

P L

File number:

DNM53 of 2006

Judgment of:

Brown FM

Hearing dates:

24 and 25 August

Delivered at:

A S

Delivered on:

15 September 2006

REPRESENTATION

Counsel for the Applicant:

Ms Davis

Solicitors for the Applicant:

Davis Norman

Counsel for the Respondent:

Ms Portelli

Solicitors for the Respondent:

North Australian Aboriginal Justice Agency

ORDERS

That all previous orders be discharged.
That the parents are to have equal shared parental responsibility for the children T L born 2 July 1998 and S L born 7 December 2001 hereinafter referred to as “the children”.
That the children are to live with the father from the end of the third term school holiday in 2006.
That the children are to spend time with the mother as follows:
(a)For the whole of the third term (September/October) Northern Territory school holiday in 2006 and each alternate even ending year thereafter;
(b)For half of the end of year (Christmas) Northern Territory school holiday being the first half in 2006 and each alternate even ending year thereafter and the second half in 2007 and each alternate odd ending year thereafter;
(c)For the whole of the end of term one (April) Northern Territory school holiday in 2007 and each alternate odd ending year thereafter;
(d)For the whole of the mid year school holiday in each year;
(e)To enable the children to attend ceremonies and other cultural practices, including funerals, associated with the maternal aspect of their family;
(f)At any other times the parties may agree from time to time.
That the children are to have the following communication with the mother:
(a)By telephone between the hours of 7.00pm and 7.30pm each Sunday with the father to facilitate the children telephoning the mother;
(b)At any other times as the children may request with the father to facilitate the making of the necessary telephone call to the mother.
That the father will be responsible for all costs, including if necessary the charter of an aircraft from G to J and return, in order to facilitate the children spending time with the mother pursuant to Orders 4(a) – (e) hereof.
That in the event that the parties cannot come to a joint decision about any major long term issue concerning the children, they will do all things necessary to participate in family dispute resolution with a person authorised pursuant to the Family Law Act 1975 to conduct such family dispute resolution.
That the applications be otherwise dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
D

DNM53 of 2006

S M

Applicant

And

P L

Respondent

REASONS FOR JUDGMENT

Introduction

P L and S M were aged about 14 years and 17 years respectively, when they first met in 1997 at K College, a boarding school in D, which they were both attending at the time.
Their first child, T L was born on 2 February 1998 and their second, S L was born on 7 December 2001. Mr L “the father” and Ms M “the mother” are now in dispute as to with whom of them the two children should live in future and how they should spend time with the other parent and family concerned. It is a case which creates difficult problems and issues.
Both the father and mother have an indigenous background but their culture and traditions are different. The father and his family come from North West A L, particularly the E W R, which is North West of G (O), near the salt water country which abuts G I, around A B. It is a remote area of Australia. He is a member of the M Clan and speaks Maung[1] as his first language.
[1] Maung also Mawng is the language spoken by approximately 750 Aboriginal people on G I and surrounding areas, including C I, G, M and Homeland areas. See - the Aboriginal and Torres Strait Islander language website edited by Nathan.
The mother grew up at the K Community, on the outskirts of K, a provincial town with a population of about 8,500, which is approximately 300 kilometres south east of D. On her father’s side, the mother has connections to the G people, although her grandfather was originally from A S. On her mother’s side, she has connections with the J people and those who live at D R.
When the mother was pregnant with T, she was unable to continue her studies at school. Accordingly, in late 1997, she and the father moved to G I to live with the father’s parents, R and N L. Mr and Mrs L have been involved with T’s care from an early stage.
Neither the mother nor the father, in these proceedings at least, is able to recount exactly at which places and when they have lived there in the period since T was born. The parties have not always lived together. The father returned to K to finish his education. Later he completed a building apprenticeship at J. The parties resumed their relationship at J in early 2000. They have lived together at G I, J, K and an outstation 15 kilometres from K called B.
It seems that for extended periods during that time, R and N L have been involved in the care of both T and S to a substantial degree, as indeed have others, on both the paternal and maternal aspects of the children’s family. This is not unusual. In “The Recognition of Aboriginal Customary Laws” the Australian Law Reform Commission noted that:
“… in Aboriginal societies, the role of the extended family, based on kinship relationships and obligations, is of fundamental importance in bringing up children. A child growing up in an Aboriginal community is surrounded by relatives who have responsibilities for that child and play a meaningful role in child-rearing. If for any reason the biological parents are unable to take care of that child, other arrangements will be made within the extended family.”[2]
[2] Australian Law Reform Commission The Recognition of Aboriginal Customary Law, Report No. 31, Volume 1, AGPS, Canberra, 1986 at paragraph 344
The parties finally separated in early 2005. In the preceding years, they had lived both at B, with the mother’s family and at J, with the father’s family. Thereafter, the mother, with T and S, went to live at K. The father remained in J and later went to G, a community in A L to the east of the E A R.
During this period, it is the father and his parents’ position that the children were mainly being looked after by the mother’s cousin, L M and they were concerned about this, particularly that the mother was not paying proper attention to the children. Accordingly, in September of 2005, they travelled to K and picked up S, leaving T behind there because he apparently told them he did not wish to leave K. The removal of S was not discussed with the mother. It is the father’s position that he and his family were called to K by Ms M.
Some months then passed and it was not until early February of 2006 that the mother commenced proceedings, in this court, seeking to recover S and reunite her with T and herself in K. The father indicated, in his formal legal response filed with the court, that he wanted both children to live with him at G.
This impasse led to the court making the following orders on 27 February 2006:
“THAT UNTIL FURTHER OR OTHER ORDER:
That the parties remain jointly responsible for making all decisions concerning the long term care, welfare and development of the said children.
That each party be responsible for making all decision concerning the day to day care, welfare and development when the children are living with each of them respectively.
That the father deliver the child S L to the mother by 12 Noon on 28 February 2006 at the McDonalds Restaurant, Smith Street, D.
That the children of the relationship live with each of the parties as follows:
a) with the mother from 28 February 2006 to 3 May 2006;
b) with the father from 4 May 2006 to 4 July 2006;
c) with the mother from 5 July 2006 until the trial date.”
It was at this stage that the case was fixed for final hearing on 24 and 25 August 2006 and a family report was ordered to be prepared.
R L is the oldest man of the M Clan and speaks on its behalf. He believes that it is essential for T and S’s wellbeing that they grow up learning and being able to speak Maung, which in turn will enable them to know their ancestral connection to their paternal land in the E W R.
If this does not happen, he fears that the children will not be able to “talk for” their country and will not know the ceremonies connected with it. This will mean that they will not have a fully developed sense of identity and the M Clan itself will be weakened. The father shares Mr L’s views and is worried that, if the children live in K, they will “miss out” on their culture and ceremonies. In his words “the children are the future of our land and that is their future.”
From the mother’s perspective, the children’s closest connections are and have been since their birth, with her. She has formed a new relationship with R P. She and Mr P are expecting their first child early next year. The mother believes the children need to grow up with her and their anticipated half sibling. In addition, she asserts that her cultural traditions, although different to the father’s, are no less important to the children.
The family report in this case was prepared by H P, an experienced social worker and family consultant. She visited both K and G, at times when the children were in the care of each of their parents respectively. In her report, Ms P recommended that T and S should live with their father in A L, provided they were able to have an opportunity to spend generous time with their mother in K. In her report, Ms P provided the following evaluation:
“It is not a minor matter to recommend that young children move from living with one parent to the other. In this case, the importance of the continuity of their mother’s presence during their early and most vulnerable years is acknowledged (this having been at times in the context of their father’s family). T and S are now at a stage of their development when continuity of education becomes paramount, albeit they still require a supportive home environment. To the credit of both families (and recently, of this court), T and S have confident, intimate connections with both their parents and their extended families.
It is assessed that, on the basis of the foregoing comments, the children’s education and their socialisation towards taking an active approach to the future would be best supported by their living with the L side of their family, so long as this is accompanied by a commitment on all sides to maintaining and fostering regular, meaningful communication with the M side, including their spending significant time with that family.”[3]
[3] See family report at paragraphs 25-26.
These proceedings are designed to resolve this complex dispute between the parties. Although the father and mother are the nominal participants in this case, it is clear that many others, particularly Mr and Mrs L Senior quite rightly have a profound interest in its outcome. It has been noted that the Aboriginal view of family and social life is a collectivist one, pursuant to which many members of the community are vested with the responsibility for the “growing up” of a child.[4]
[4] See S Ralph “The Best Interests of the Aboriginal Child in Family Law Proceedings” (1998) 12 AJFL 140
Sadly, at the present time, the parties themselves and their two families are not talking well with one another. Mr L Senior has expressed his regret that the two families concerned could not sort out the issue themselves and that, as a result, it falls to this court to make a decision according to the Family Law Act 1975. It is clear from his evidence that Mr L Senior is not comfortable with this fact.
The reluctance of Aboriginal and Torres Strait Islander people to utilise the “mainstream family law system” has been a matter of official comment. In its report, Recognition of Traditional Aboriginal and Torres Strait Islander – Child Rearing Practices the Family Law Council reported as follows:
“The apparent low rate of usage elsewhere in Australia of the mainstream family law system by Aboriginal and Torres Strait Islander peoples demonstrates the relative inaccessibility of that system. The family Law Act is modelled on a euro-centric notion of the nuclear family. It does not sit well with Aboriginal and Torres Strait Islander understandings of ‘family’ in which the structure of social obligations are more ‘fluid’. There is an understanding that in a nuclear family, the child is cared for by his/her biological family. That may not be so in Aboriginal or Torres Strait Islander communities in which family relationships may be significantly wider than this, including people who are members of the child’s community but have no biological relationship with the child.”[5]
[5] See Family Law Council report: Recognition of Traditional Aboriginal and Torres Strait Islander – Child Rearing Practices response to recommendation 22: Pathways Report, Out of the Maze published December 2004 at paragraph 95
In its report, the Family Law Council made a number of recommendations to government regarding how Aboriginal and Torres Strait Islander peoples might be encouraged to utilise the family law system more and feel more comfortable whilst doing so. One of the recommendations was that the Family Law Act itself be amended to allow greater recognition, within the law, of the cultural influences which play a part in the lives of many Aboriginal and Torres Strait Islander children, particularly the traditional family and kinship structures of which they are a part.
The part of the Family Law Act which deals with children has recently been significantly amended. It now has new objects and principles, one of which is that a child has a right to enjoy his or her culture, including the right to enjoy that culture with other people who share it.[6] Following on from that principle, one of the considerations now relevant to how a court determines what is in a child’s best interests is, if the child is an Aboriginal and Torres Strait Islander child, how that child may best maintain his or her connection with Aboriginal and Torres Strait Islander culture and have the support, opportunity and encouragement necessary both to explore that culture, to the full extent consistent with the child’s age and development level and to develop a positive appreciation of that culture.[7]
[6] See Family Law Act 1975 section 60B(2)(e).
[7] Ibid at section 60CC(3)(h) and (6)
In addition, there have been changes to the law relating to parental responsibility, so far as it applies to Aboriginal and Torres Strait Islander children. The court is now required to have regard to any kinship obligations, and child-rearing practices, of the child’s Aboriginal or Torres Strait Islander culture.[8] These changes to the law have come about as a result of the Family Law Council’s recommendations.
[8] Ibid at section 61F
In the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006, it was said in respect of section 60CC(6) the following:
“The provision reflects the importance of Aboriginal and Torres Strait Islander children being able to maintain a connection with their culture and to have the support, opportunity and encouragement necessary to develop a positive appreciation of that culture and to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views.”[9]
[9] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 78
In regards to section 61F, the Explanatory Memorandum reports as follows:
“The purpose of this provision is to ensure that the unique kinship obligations and child-rearing practices (such as the involvement of extended family) of Aboriginal and Torres Strait Islander culture are recognised by the court when making decisions about the parenting of an Aboriginal or Torres Strait Islander child. This provision is consistent with other amendments to facilitate greater involvement of extended family members in the lives of children.”[10]
[10] Ibid at paragraph 139
The difficulty in this case thus becomes apparent. T and S have inherited an Aboriginal culture from both their parents and each of their respective extended families. However, the culture the children inherit from their father is not homogenous or synonymous to that which they inherit from their mother.
There are necessarily great differences between how Aboriginal culture is experienced and lived by different indigenous groups and communities throughout Australia. The reasons for those differences are complex and myriad. Some of those reasons flow from matters of geography, others are historically based. It is not the purpose of these reasons for judgment to discuss these issues, other than in a general way.
Clearly, prior to the European occupation of Australia, indigenous groups operated in different ways throughout the continent. Different languages and cultural practices and beliefs systems evolved. Food was hunted and collected in different ways, depending on the climate and geography of the place involved. Some of these differences remain to this day. The experience say, of an Aboriginal person living in Kintore, is obviously likely to be very different to that of one living in Yirrkala, which in turn is different from the experience of an Aboriginal person living in an urban situation in S or Brisbane.
Again, the experience of Aboriginal people in Australia since European settlement in 1788, has not been a uniform one. Not all Aboriginal people have been dispossessed of their lands and the traditions and languages which relate to such land. As Brennan J remarked of the Meriam people in Mabov Queensland [No.2]:[11]
“… since European settlement of Australia, many clans or groups of indigenous people have been physically separated from their traditional lands and lost their connection with it. But that is not the universal position. … Where a clan or group has continued to acknowledge the law and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence.”
[11] Mabov Queensland [No.2] 175 CLR 1 at 59
The experience of the Meriam people referred to by Brennan J has not been the historical experience of the larger majority of indigenous people in this country. In her submissions made on behalf of the father, Ms Portelli drew my attention to the comments of Deane and Gaudron JJ in Mabo, where their Honours spoke of the consequences of the European occupation of Australia for Aboriginal groups as follows:
“Throughout the rest of the century, the white expropriation of land continued, spreading not only throughout the fertile regions of the continent but to parts of the desert interior. There were some reserves established for Aborigines and some reservations, increasingly ignored, in pastoral leases protecting Aboriginal usufructuary access. On the broad front, however, land was granted by the Crown or dedicated or reserved for inconsistent public purposes without regard to Aboriginal claims…the oppression, and in some areas of the continent, the obliteration or near obliteration of the Aborigines were the inevitable consequences of their being dispossessed of their traditional lands.”[12]
[12] Ibid at pp 105-106

These factors, referred to by Dean and Gaudron JJ, were also at play in the history of the Northern Territory, but necessarily, due to its remoteness from the more temperate and fertile rim of Australia, where settlement occurred first, the experience of indigenous people in the Northern Territory was again not a uniform one. As a result, to use the terminology of Brennan J in Mabo, there remain significant areas within the Northern Territory where “the tide of history” has not washed away the acknowledgement of traditional law and observance of traditional customs, which are the basis of a claim to native title for land.
Some factors which have affected Aboriginal people in the Northern Territory, particularly in regards to their connection to land and the maintenance of the language and customs which relate to it, have included the following:
·The involvement of the pastoral and mining industries in that country;
·Whether that country was set aside as land to be administered by government or religious institutions, the date on which this occurred, and particularly whether Indigenous people were compulsorily collected on the land;
·The country’s proximity to areas of European settlement and its annexation for use in such settlements;
·Whether the country was land which was designated in Schedule 1 of the Aboriginal Land Rights (Northern Territory) Act 1976 and so became vested in a land trust set up for the benefit of its traditional Aboriginal owners.
·Other communities were affected by government policies which mandated the removal of children of a mixed Indigenous background. These policies are a part of Mr Pracey’s background.
In addition, geographical factors played a part in the attractiveness of land for settlement by European groups. Areas of the southern Northern Territory being considered unattractive for settlement because they were largely desert and areas of the north because they were inaccessible due to topography and heavy seasonal rain. Other areas of the Northern Territory again were particularly attractive to the pastoral industry. This list is not a definitive one but serves to demonstrate that the experiences of Aboriginal groups, in various parts of the Northern Territory, over the period of European settlement, have been different. This has had profound but often different consequences for the various groups involved.
The Family Law Act 1975 directs the court to consider a child’s right to enjoy and maintain a sense of connectedness to his or her Aboriginal culture. In the sense that the word “enjoy” is used in this context, I take it that what is intended to be denoted is the “experiencing” of such a culture. “Culture” is a more complex concept. Definitions of “culture” include: “the arts and other manifestations of human intellectual achievement regarded collectively; and the customs, civilisation, and achievements of a particular time or people.”[13]
[13] See the Australian Oxford Dictionary
In this case, the evidence reveals that T and S’s experience of “Aboriginal culture” is likely to be different, when experienced in their father’s household and environs, to that which they are likely to experience when living with their mother. In part, this is because the experience of Aboriginal people living in the K area, both now and historically, has been different to the experience of indigenous people living in A L. Accordingly, the children have a mixed cultural heritage.
In Goudge and Goudge[14] Evatt CJ indicated as follows:
“The court is reluctant to make value judgments as to the merits of differing cultural, religious or ethnic heritage…in any event, these children are of mixed race, as in so far as there are significant differences between the cultural heritage and identity of each of their parents, it is not for this court to prefer one over the other on that ground.”
[14] Goudge and Goudge (1984) FLC 91-534 at 79,318
In this context, it must be remembered that:
“The cultures of indigenous people in Blacktown, Redfern, Fitzroy and Musgrave Park are no less ‘Aboriginal’ than the cultures of their counterparts in Cape York, A L or the Kimberley.”[15]
Accordingly, such matters as loss of language or knowledge of ceremonies do not of themselves necessarily reduce the validity of a persons’ experience of and identification as an Aboriginal person. In essence, a person does not have to live in a particular location or adopt a particular lifestyle to be an Aboriginal person.
[15] Aboriginal and Torres Strait Islander Commission As a matter of fact: Answering the myths and misconceptions about indigenous Australians, 1998, Office of Public Affairs, ATSIC, Canberra, page 61
However for T and S, as they mature, an ability to speak Maung; to know the ceremonies connected with land in and around the W R; and take part in the land trust which administers it, in association with other clan groups; are likely to be important to their sense of identity. These are not matters which can be learnt intellectually or necessarily picked up at a later stage of maturity but rather are matters based in experience. In Brown & Ferguson[16] Moore J said as follows:
“As I see it, the requirement to maintain a connection to [Aboriginal] 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 and active experience of lifestyle, culture and traditions.”
[16] Brown & Ferguson (unreported, Family Court of Australia at Brisbane sitting at Coffs Harbour, No.BR8668 of 1996, Moore J, 23 February 1998 at pp 29-30
In Re: CP[17] the Full Court of the Family Court regarded it as an error for a trial judge to approach a case involving parties who had, on the one hand, a Tiwi background and, on the other, an Aboriginal and Torres Strait Islander background, without:
“… an eye to the significance of differences between Aboriginal groups and, by his implicit emphasis on shared attributes, he demonstrated an incorrect view of homogeneity of Aboriginal cultures. [Rather] it was incumbent upon him to take into account and balance an Aboriginal environment on the one hand and a specific Aboriginal Tiwi environment on the other.”
[17] Re: CP (1996) 21Fam LR 486 at 501
Accordingly, within the overall framework provided by Part VII of the Family Law Act 1975 and without falling into the trap of making value laden judgments about such things, it is necessary for the court to weigh and assess the pros and cons, for T and S, of them living predominantly in one particular type of Aboriginal community as opposed to another. However, this is but one part of the exercise, for the court, albeit a very important one, given the way each party, but particularly the father, has presented his or her respective case.
Putting aside issues to do with Aboriginality, it will also be necessary for the court to assess the parties’ individual proposals; the quality of the environment which they can each offer T and S; the emotional attachment the children have to the parties and other important individuals; and the other relevant matters as listed in section 60CC of the Act. Necessarily, some of these matters must also involve some level of comparison between the communities of K and A L.
In the overall context of this case and particularly given the level of evidence provided in it, this is an exercise which causes me some trepidation. By their nature, cases involving cross-cultural issues are difficult. I must be careful to avoid preconceived notions about the type of community involved and avoid engaging in arbitrary cultural comparatavism. In Sanders & Sanders[18] Evatt CJ and Watson J said as follows:
“The case before us and before His Honour is a difficult one, raising as it does issues of cross-cultural values. It would be wrong to fall into the trap of concluding that white Australian suburban values are to be preferred as it would to idealise the life of the tribal Aboriginal and imagine that it has survived the corrosive influences of white settlement.”
Similarly, I must be careful not to idealise a remote community, where indigenous languages are freely spoken or be dismissive of one which is more urban and where traditional cultural practices are less prevalent.
[18] Sanders & Sanders (1976) FLC 90-078 at 75,374
Federal Magistrate Ryan (as she then was) in the case of H & H[19] commented on the difficulty of courts determining cases involving cross-cultural issues. She observed as follows:
“The role, structure and importance of families differs across and within cultural and religious groups. This diversity of family life and structures in Australia has often raised concerns of how family law can accommodate this diversity when determining outcomes that affect families. Indeed, Dickey recognises that in multicultural society, like Australia, it is extremely hard to determine the best interests of a child. This is because individuals from different cultural and religious backgrounds hold different opinions on what is best for children generally or for particular classes of children. Likewise, Parkinson, asserts that one of the most difficult task for a court is deciding how a child should be raised when the case involves parents holding different ethnic or cultural values.” (footnotes omitted).
[19] H & H (2003) Fam LR 264 at 269
In this case, although both parties share an indigenous background, they have very different views as to how T and S should experience their respective backgrounds and as to the benefits of the children growing up in the environments associated with each of them. As a result, it is not an easy case. These proceedings are designed to determine these complicated issues, amongst others. In determining the appropriate outcome, I must bear in mind that T and S’s best interests are the court’s paramount concern.

The documents relied upon

The mother is the applicant in these proceedings, which she commenced on 6 February 2006. In her application, she relies on the following documents:
·An affidavit of herself filed 4 August 2006;
·An affidavit of her fiancé, R R P filed 4 August 2006;
·An affidavit of her mother, J M filed 21 August 2006.
In a minute of the orders sought by her, handed up on the first day of hearing, the mother indicated that she sought the following orders:
“1.That the children of the relationship T M born 2^nd July, 1998 and S M born 7 December, 2001 live with the Applicant Mother.
2.That the father spend time and communicate with the children as follows:
(a)each alternate weekend from after school Friday until 4.00pm Sunday afternoon
(b) for half of all school holiday periods
(c) by telephone at all reasonable times
(d) at other times agreed.”
The father responded to the mother’s application on 23 February 2006. In his application, he relies on the following documents:
·An affidavit of himself filed 22 August 2006;
·An affidavit of his father, R L filed 22 August 2006.
In his Amended Response filed on 22 August 2006, the father indicated that he sought the following orders:
“1.That the Mother and the Father have equal shared parental responsibility for the children T L born 2 July 1998 and S L born on 7 December 2001 and will make a genuine effort to come to a joint decision about all major long term issues affecting the children.
2.In the event that the parents cannot come to a joint decision about the major long term issues, they will do all things necessary to participate in family dispute resolution with a person authorised under the Family Law Act to do so.
3.That each parent shall have sole responsibility for making decisions concerning other aspects of the children’s care, welfare and development whilst the child is in their care.
4.That the children shall live with the Father.
5.That the children shall spend time with the Mother as follows:-
a. For the whole of the Term 2 holidays each year.
b. Half of the Christmas school holidays to be the first half in odd numbered years and the second half in even numbered years.
c. For funerals of immediate family and other significant ceremony which directly involves the children.
d. For the purpose of the Order the father shall deliver the children to the mother’s residence and will be responsible for all costs associated thereto, and the Mother shall return the children to the father’s residence and will be responsible for all costs associated thereto or otherwise as agreed between the parties.
6.That the children shall communicate with the Mother:-
a. Telephone conversations with the Mother between 7.00 and 7.30pm each Sunday with the Mother to facilitate the call and the father to have the children available.
b. Telephone conversations with the Mother as the children may request and the father will facilitate the making of such telephone calls.
7.The Father shall ensure that the Mother is kept informed of:-
a. Any medical problem or illness suffered by the children while in the Father’s care.
b. Any medication that has been prescribed for the children.
c. Any ceremony which the child is to attend.
d. Any other matter relevant to the children’s welfare.
8.The Mother shall ensure that the Father is kept informed of:-
a. Any medical problem or illness suffered by the children while in the Mother’s care.
b. Any medication that has been prescribed for the children.
c. Any ceremony which the child is to attend.
d. Any other matter relevant to the children’s welfare.
9.The process to be used for resolving disputes about the interpretation, implementation and enforcement of these Orders is that the mother and the father shall participate in family dispute resolution with a person authorised under Section 10G of the Family Law Act.”
The family report of Ms P was released to the parties in early August. Ms P, the parties themselves, Mr P and Mr L Senior were the only witnesses who gave additional oral evidence in the proceedings. Ms M was engaged in “sorry business” in K at the time of the hearing. Counsel for the father, Ms Portelli indicated that she did not wish to cross-examine her.

The evidence

In its report on the Recognition of Traditional Aboriginal and Torres Strait Islander Child Rearing Practices, the Family Law Council commented as follows:
“Because of the diverse and dynamic nature of Aboriginal and Torres Strait Islander cultures and customs, a court will undoubtedly require assistance in making relevant determinations about what is in an Aboriginal or Torres Strait Islander child’s best interests. Particularly as the meaning of ‘kinship’ and ‘child rearing practices’ may have very specific meanings depending on where it is used, and will differ on a case by case basis depending on who the child is. These issues may go to the very heart of the question of what “aboriginality” is, and the recognition of interests that are tied to this concept. Resolution of these issues may need to be the subject of expert opinion evidence.”[20]
[20] See Family Law Council report: Recognition of Traditional Aboriginal and Torres Strait Islander – Child Rearing Practices response to recommendation 22: Pathways Report, Out of the Maze published December 2004 at paragraph 70
In H & H, Ryan FM noted that, as a general rule, in family law proceedings, anthropological or sociological findings are inadmissible. Her Honour, however, also noted the potential importance of evidence of this kind, particularly in cases involving cultural issues.
Neither party chose to examine the issues in this case from an anthropological perspective. Accordingly, the issue of the admissibility of such an expert’s opinion does not arise. However, that does not diminish the degree of difficulty in this case and, in my view, increases the importance of Ms P’s report, as the only expert in it. However, having said that, for reasons which I will elaborate on in due course, it is my view that Mr L Senior should be regarded as an expert in Maung cultural matters.
Ms P is a social worker by profession. She has a lengthy amount of experience of working, in a court context, in respect of child related proceedings in both this court and the Family Court. It seems that she has worked with indigenous families in the past but she herself does not claim to have any special expertise in this field. She has no qualifications in anthropology, linguistics or sociology.
In comparison to many other cases presented in this case, the affidavit material of the parties was brief. Neither the father nor the mother was subjected to extensive cross-examination. In my estimation, although both of them spoke and understood English adequately, neither was particularly at home in the formal court environment. Each gave brief answers to questions and was markedly reluctant to provide elaboration to their respective answers. In my estimation, neither party was a particularly forceful advocate for his or her cause. I do not regard this as disinterest on either of their parts. Rather, it was due to cultural factors and their mutual lack of familiarity and comfort with the environment in which this case must be determined.
These difficulties were also apparent to Ms P, when she was compiling the family report. She described both Ms M and Mr L as being “not forthright, not verbal in the way that you and I look for at interview.” In her evidence, Ms P also commented that she was “conscious with both sides of this family that the parents on their own are not the ones that are making the plans and having the visions for these children. The biological parents are not the only ones and not necessarily the primary ones. [This] struck [Ms P] on both sides of the family…”.
Like Ms P, I was struck by the artificiality and inappropriateness of the court regarding the proceedings before it as being solely a dispute between the parties themselves. In this regard, throughout the proceedings I was conscious of the principles underlaying section 61F of the Family Law Act 1975. In this context, what was striking about the evidence was not only the witnesses who were called to give evidence but also those who were not.
It would have been useful for the court to have heard from L M and Jane M (although she deposed an affidavit) and other members of the community at K. In addition, the only person, other than the father, called to give evidence in his case was Mr L Senior. He was a most imposing and impressive witness but no other witnesses were called from the father’s family.
The mother did not have a witness of similar stature and bearing to Mr L Senior in her case. This was important, as I was provided with more evidence of the general cohesiveness of the community at G than I was given in respect of the community at K.
Again this was a factor which emphasised the importance of Ms P’s views in this regard. She being able to provide an objective and expert view of both communities, albeit a fairly brief “snapshot”. Ms P, when she visited both K and G, was careful not to be unduly intrusive or seen as a “snooper”. She was also at pains to behave in a culturally sensitive way. The mother was at something of a disadvantage, as her home had recently been flooded by the K River.
My impression of the case, from the evidence of all the witnesses in it, including Ms P, was that too a significant degree, T and S have been raised in a collectivist manner, which Ralph has described as follows:
“… Aboriginal people are likely to argue that children have the ability to effectively attach themselves to many carers in the course of their “growing up”. In many indigenous cultures multiple, serial attachments are the norm and are not regarded as necessarily harmful to the child’s development and long-term adjustment.
The fluid nature of Aboriginal child-care arrangements and associated parenting practices was recently noted in an anthropologist’s report to the court regarding an Aboriginal child. The report stated:
It is not at all unusual for Aboriginal children to move freely, even frequently (between kin and community). These movements … are seen as important ways in which children acquire their understanding of the ways in which kinship and country relationships are lived out. They are thus not a sign of disruption as they might be interpreted by non-Aboriginal people but are an important factor in socialising children.” (footnotes omitted)[21]
[21] S Ralph “The Best Interests of the Aboriginal Child in Family Law Proceedings” (1998) 12 Australian Journal of Family Law at 144. The case referred to by Mr Ralph is Re: CP referred to above.

In this context, it did not seem particularly useful for the court to focus on the individual failings of the parties concerned, as commonly occurs in court proceedings concerning parenting arrangements for children. In the mother’s case, she alleged that the father drank to excess, abused marijuana and had been violent towards her in the past. In the father’s case, he is critical of the mother for leaving the care of the children to others, alleges she herself was emotionally volatile and violent towards him during their relationship and has claimed government benefits for the children, when they have not been in her care.
Having made these remarks, it is my view that this is not a case which turns on credit. The parties themselves, although shy at times, were both open and honest in their evidence. In particular, at times, both gave evidence which a more worldly witness would have realised was not likely to advance his or her case and, for that reason, would have downplayed it. Mr L Senior and Mr P were more assured in the court environment and both of them were honest and impressive witnesses.
I turn now to consider the evidence available before the court in more detail.

a) Background

The mother was born on 17 July 1980. The father was born on 24 March 1983. As previously indicated, the parties met in 1997, at K College in D. At the time the parties met, the father was in Year 10. It seems the mother was in Year 11.
After it was discovered that the mother was pregnant with T, it was no longer possible for her to continue at K. Accordingly, whilst she was pregnant, she and the father moved to G I and lived with Mr and Mrs L Senior.
T himself was born at D on 2 February 1998. Thereafter, the parties and T returned to G I. Accordingly, I am satisfied that Mr and Mrs L Senior were involved in the care of T from the early stages of his development. Given the ages of the parents themselves at the time, it is only to be expected that others would have been involved in the care of their young child. Indeed, it is Mr L Senior’s evidence that he had to encourage his son to be more involved in caring for T.
Neither of the parties themselves is a particularly good historian regarding the exact chronology of their relationship. Clearly, it was the case that the birth of T had severely disrupted both of their secondary educations. The father and his family were anxious that he should return to K and complete his secondary education. It seems to be the case that, in the latter part of 1998, the father returned to K College, probably in time to commence the third term there. Around about this time, it seems that the mother decided to return to K and B with T, in order to spend some time with her family there. Accordingly, it seems clear that, when T was around 18 months of age, he was exposed to his wider maternal family in the K area.
In late 1998, it is the father’s case that he went to K to look for the mother and T but was unable to find them. Thereafter, he went to live in J, where his father had obtained a position as the Aboriginal Liaison Officer with ERA, the company which operates the uranium mine in J.
There can be no doubt that the mother joined the father in J at sometime in 2000 and that the two resumed their relationship thereafter. What is uncertain is how long the parties lived together in J with Mr and Mrs L Senior. The mother asserts that the parties only lived in J until mid 2000, when they moved to K. The father puts the move later, in November of 2003. At any event, S was born on 7 December 2001. I think the father’s timing is likely to be the more accurate one, as he deposes he spent three and a half years doing a building apprenticeship in J and then spent one year working as a sea ranger at G I.
On balance, it seems more likely than not, that Mr and Mrs L Senior were substantially involved in caring for both T and S, although the parties themselves, particularly the mother, played a role. I would also imagine that the mother and children went to K, from time to time, and the children spent extended periods with their wider maternal family in that area.
The mother is critical that the father was not always present around this time. This too seems to be the case, particularly as he was away at G I for an extended period of time. The impression I have is that the children were cared for in the Aboriginal collectivist manner described by Ralph (supra) and certainly not in a small or nuclear family, consisting of only the parents themselves and the children.
At some time towards the end of 2003, I find that the parties, with T and S, had moved to live more or less permanently in B. The father obtained work as a health worker there whilst the mother was performing administrative duties for the community council. T started to attend school. It is the father’s position that his parents would often visit him, the mother and T and S, whilst they were living in B.
The time the parties were living together at B does not appear to have been a particularly happy one. The parties’ relationship, which had begun when both were very young indeed, seems to have come under a significant level of pressure. Ms P’s impression was that the father wished to explore experiences which he felt he had missed by becoming involved with the mother at such a young age. On the other hand, the mother remained more at home.
Ms P described it as follows, in her oral evidence:
“… it was recognised that she [the mother] really had been the homebody during their together period and P had been out and about whenever he wanted to, to extremes at times, as I understand it. Being a free young man…”
This situation, particularly when the parties were living close to the attractions of K, appears to have precipitated a significant level of conflict between them and ultimately led to the end of the relationship between them. Both parties designate this period as one characterised by family violence but have different views as to its significance and who of them was responsible for it.
The mother makes very serious complaints of family violence against the father alleging that he “often kicked, punched and dragged me during our arguments. These assaults usually happened in the presence of our children.”[22] She provides no further details of these various incidents and has called no evidence to corroborate her complaints. Counsel for the father chose not to cross-examine the mother about these matters.
[22] See mother’s affidavit of evidence at paragraph 16
The father generally and somewhat blithely acknowledges “there was some domestic violence in our relationship”[23], although he denies that such incidents took place in the presence of the children. From his perspective, the mother had a propensity to “temper tantrums” and at times used to “display a bad attitude” towards him.
[23] See father’s affidavit of evidence at paragraph 16
Both parties refer to one particular incident, involving an axe, which, due to its severity, appears to resonate for them both still. Again, both parties have a different slant on the incident and who was primarily at fault in it. The mother describes the incident briefly as follows:
“On one occasion when P and I had an argument I went to sit in the car to calm myself down. Before I had time to sit in the drivers seat, P got an axe and broke the windscreen on the driver’s side. I was very scared of him. This happened in front of our children. My children were crying and were scared at that time. I was also scared.”[24]
Thereafter, she asserts she called the police, who assisted her and the children to attend at a women’s refuge.
[24] See mother’s affidavit of evidence at paragraph 12
On the father’s case, the parties had an argument about him wanting to go out to celebrate the mother’s brother’s birthday and more importantly wanting the mother to drive him into town. In his expression, the mother “went off the handle [and] started throwing punches at [him]” thereafter, he says he became upset and angry but, rather than taking his anger out on her, he smashed the windscreen of the car with an axe. Thereafter, he is critical of the mother for driving around the B community at speed in the damaged vehicle.
It is difficult to know what to make of this incident and how to characterise the violence involved. As is well known, family violence is a current and very serious issue in many Aboriginal communities, particularly remote ones, as well as those on the outskirts of regional centres in the Northern Territory. However, violent behaviour in all families, including Aboriginal ones, is not a homogenous concept.
At one of its extremes, such violence may be impulsive and isolated, occurring as a result of some provocation or in reaction to the extreme emotion of some particular situation. On the other hand, it may be systematic and brutalising, where one person, in a domestic situation, through violent behaviour, undermines the physical and emotional integrity of another person. In addition, in some Aboriginal communities, family violence is exacerbated by the ruinous abuse of alcohol.
The mother does not allege that alcohol was involved in any of the incidents of which she complains concerning the father. There is no evidence to indicate that he was ever charged with any criminal offences arising out of them. It is also of some note that the mother herself did not raise any concerns about the father’s alleged violent behaviour towards her with Ms P.
These various matters cause me to have less concern about the allegations of violence raised by the mother than I would otherwise have had. The impression I have, confirmed to some degree by Ms P, was that the father was socialising to a significant degree during the period the parties were living at B. This did not meet with the mother’s approval. I can understand why that would be the case. In addition, the mother complains that the father was involved with other women at the time. Obviously, this would increase the volatility of the situation. Overall, without excusing the behaviour of either of the parties in any way, the impression I have is that their relationship, particularly whilst they were living at B, was one which was characterised by “jealous fights”.
It is interesting to note that when Mr L Senior was questioned about his son’s alleged violent behaviour towards Ms M. He indicated that he himself was “very respectful” of her and would not tolerate any inappropriate behaviour being inflicted upon her. He also acknowledged that he had witnessed one incident when “P had physically hit S”. When asked how he responded to this incident, he said he “backed S up [and] hit P”.
The impression I gained was that this had been done to punish and discipline the father. It confirmed my view that Mr L Senior is a strong and somewhat patriarchal figure, where his family is concerned, including Ms M. I place some significance on the fact that the behaviour of which the mother complains largely occurred when she and the father were away from Mr L Senior’s influence.
Ms P’s view of Mr L Senior was that he ruled his family with a strong hand and he was the undisputed head of it. Ms P did not quibble with the suggestion that he was a patriarchal person, who bestowed his patronage and values on members of his extended family. In Ms P’s estimation, Ms M herself had benefited from such patronage. This strengthened my view, confirmed by Ms P, that the parties themselves and the children had lived in a more structured environment, with more rigidly applied rules, when they had been living at J than at B. Too some degree, this may explain, although not excuse, the aberrant behaviour of which both parties complain, which occurred at B.
The father allocates the parties’ date of final separation as being February of 2005, when he returned to J and then G to be with his family. The mother does not dispute the date of separation but asserts that she and the father moved to J in 2004, in an attempt to make a go of their relationship and when this failed, she returned to K with T and S.
Not a great deal seems to turn on this difference. It is not in dispute that between February 2005 and September of 2005, neither the father nor his family had any direct contact with T and S. The mother does not give any specific evidence, in her affidavit material, in respect of arrangements for the care of the children in this period. It is the father’s position that the only contact he had with the children was via the telephone, when either he or L M would phone.
It is the father’s position that, increasingly after February of 2005, he became concerned about the level of care being provided to the children. He alleges that T contracted hepatitis in mid 2005 and it was Ms M who nursed him and took him to the hospital, rather than the mother. Essentially, the father asserts that the mother was not taking proper care of the children and was leaving it to others, particularly Ms M.
There is some confirmation for the father’s concerns in what the mother apparently told Ms P during the interviews for the family report and which was revealed in cross-examination of Ms P by Ms Davis:
Ms Davis:
“S didn’t tell you that she left the children in L’s care for extended periods of time. Did she?”
Ms P:
“I’ll check what she did tell me, if you like. I think I probably assumed that it was L as the main person when S was telling me that she was indeed going out and having a good time as well as she was able last year and she had a period when she told me that she did a lot of drinking but that she’d now stopped that. And so my thought was that the children were in the care of others to some extent and that if it was L, it was L. And it was clear that on the actual occasion when the other family came and were ready to take the children and ended up taking S that – yes, they were being looked after because S was out.”
Ms Davis:
“So the situation with the L family is that they were critical of S for leaving the children with L from time to time. However it’s true to say that it’s their intention that if the two children live with their family – that the children will be raised by however is available in their family?”
Ms P:
“I think that’s an adequate comment to make. The difference however would be that L is quite young – I think I established she’s 19 – and would have been younger at these earlier times and there is – in the other family – there’s just – as we acknowledge repeatedly – the strong guiding hand of older people.”
This is the background to the father’s decision, in September of 2005, to come to K, in conjunction with his parents, to remove S but not T from the mother’s care. The father puts it bluntly as follows:
“In one of my discussions with L in September 2005, she called me up as she was getting stressed out by the children being with her and not with their Mother for extended periods of time. I did what I believed was necessary and went to K to pick up my children. S came with me because she wanted to. At this time T had not wanted to come, so we didn’t force the issue.”[25]
[25] See father’s affidavit of evidence at paragraph 20
The mother, through her counsel Ms Davis, is very critical of the father’s behaviour. She categorises it as unilateral and insensitive to the emotional needs of both children, in that they were separated from one another and she was not consulted in any way about this decision. The father and Mr L Senior greeted this criticism with incomprehension. From their point of view, the mother was not there to be consulted and they did not know where to find her. Ms M had summonsed them to K. She was in charge of the children. She wished to transfer the children to the Ls. T was asked if he wanted to come. He said “no”. His views were respected.
In my view, I have to be careful not to view this incident from an ethnocentric point of view. The child minding practices of both the paternal and maternal aspects of the children are fundamentally different to those which prevail in a nuclear family setting. The father and Mr L Senior did not see their actions as a disruption of the children but rather a reflection of the fluid nature of how the children had been raised up to that point, as demonstrated as much in the mother’s absence at the time as in their actions. They do not believe their actions were unilateral because both Ms M and T were consulted. T’s age at the time seems to have been largely an immaterial consideration.
Ms Davis categorises the delay in the mother instituting legal proceedings as being symptomatic of disempowerment on her client’s part, particularly in regards to the L family. This is likely to be so, to some degree. It is the mother’s position that she telephoned the father and his parents often, who fobbed her off with promises to return S, which were subsequently dishonoured. By implication, she instituted these current legal proceedings as a matter of last resort because she could not negotiate with the L family.
Ms P has a different view of the matter. In her view, initially at least, the mother was content for S to be with the Ls and did not see anything particularly untoward in it. It was only when the period became protracted that she became concerned. Nor does Ms P see the case necessarily in terms of a power balance. Rather she considers that the parties have access to different types of power. The Ls being very powerful, in a cultural sense, in their country and she (the mother) having access to a different type of power through her invocation of the conventional legal process.
It is the father’s position that the mother did not ever call him directly to speak with S but used L as an intermediary. He asserts that, in December of 2005, the mother spoke to his parents on the telephone and advised them that she wished to take T to S to Kalgoorlie to live with her and Mr P. This was a proposal which disturbed Mr and Mrs L Senior, particularly as the children would be taken a very long way from their traditional country. At any event, it is clear that prior to the proceedings of February 2006, relations between the various parties concerned in this case became very strained. The start of these proceedings has exacerbated that tension.
The rationale behind the orders of 27 February 2006 was, in part, that the children should have an opportunity to spend some extended time together and also spend roughly equal periods of time with both the maternal and paternal aspects of their family, prior to the final hearing, when a more detailed examination of the relevant evidence in the matter, particularly that from a court appointed expert, could take place. I also considered it likely that the parties would find frequent exchanges of the children between them difficult and expensive to achieve, particularly whilst the wet season lasted and it was necessary to charter an aircraft to cross the E A R.
I was concerned that the regime had the possibility of being disruptive to the children’s conventional education. However, offset against this were the ages of the children and the likely benefit to them of being exposed to a network of family and kin on both sides of their family, to whom it was likely that they would form strong attachments in future. I also considered exposure to cultural education and experience, in both settings, was likely to be of benefit to them.

b) The mother’s evidence

The mother was a shy and unassuming witness. She and Mr P are renting their house at K for $130.00 per week. It is unclear to me precisely how many people live in the house at present. It was damaged by flooding at Easter time and many of their possessions had been destroyed. Ms P visited after the flood and was struck by how little had been done to remedy the damage. The mother and Mr P are engaged and plan to marry next year. K is “just over the bridge” from K.

In the early part of this year, Mr P had a security job at a shopping centre in P. He was provided with accommodation at a motel nearby as part of his employment package. S and the mother joined him in D. T remained in K until the mother was advised that it was important for her case that the children be together. This apparently resulted in T being withdrawn from school and S not starting preschool. T is currently in Year 2 at Clyde Fenton Primary School and S is attending preschool at the same school, as Mr P’s job in P did not work out.
The mother did not provide any great detail regarding her background in her affidavit material. Counsel for the father did not extensively cross-examine her. In answer to my questions, she indicated she was born in D and had an older brother, who lived at B and a twin sister, who lived in P C. She herself had grown up in the K area, apart from her time away at boarding school and whilst living with the Ls.
The mother said her father currently lived at B but was born at D S, south west of K. Her mother was from N D S, south east of K and regarded herself as J but also had connections to the people at D R. Her mother no longer spoke a lot of J. She herself had picked up some G from her father and knew some Wardaman, which was a language spoken in the K area. However, predominantly she spoke English and Creole.[26]
[26] I take it this is a reference to what is often referred to as “Aboriginal English”. Aboriginal English has been defined by Eades as “the name given to various kinds of English spoken by Aboriginal people throughout Australia. Technically, the language varieties are dialects of English. They have much in common with other varieties of Australian English, but there are distinctive features of accent, grammar, words and meaning, as well as language use. These Aboriginal English features often show continuities with the traditional Aboriginal languages. In many subtle ways Aboriginal English is a powerful vehicle for the expression of Aboriginal identity.” See University of New England School of Language, Culture and Linguistics website.
The mother is currently five months pregnant. She is engaged in a CDEP program at the Women’s Resource Centre doing some painting. She and Mr P would like to move to a house in K in the near future. This would provide them with a quieter life and their new home would be less susceptible to flooding. At lease at one stage, the mother and Mr P had considered trying to get a Housing Commission home in P. The mother acknowledged that there were some drinking problems at K and some trouble as a result. However she is on the “Strong People Committee”, which had attempted to deal with some of the trouble makers there.
The mother indicated that her own mother told T and S stories and often took them fishing. The children’s grandfather also visited frequently from B. Ms M indicated that her mother was not currently well and required dialysis.
The mother described the father as a “good father” but was critical of him for “drinking and smoking gunja”, when the two lived together at K. She was also complimentary about Mr and Mrs L Senior, describing them as “very kind” and “very traditional people”. She acknowledged that she herself had been looked after by “P’s mum and dad” in the past. She believed that they would do a good job of caring for T and S in future. She indicated that neither of them drank.
The mother was not particularly clear about how L M had been involved with caring for T and S in the past. She indicated that the children had been signed over to L because she “needed money for her medication”.
The mother also acknowledged that the father would have to take T, when he was aged about 12 or 13 and “show him how to be a man”. She was less forthcoming about what ceremonies were necessary for S.

c) Mr P’s evidence

Mr P was a pleasant and forthright witness. He was born on 31 January 1978 in S, New South Wales. He met the mother in October of 2005, whilst he was working for the Night Patrol at K. The two became engaged shortly after and began to live together in December of 2005.
The father has an indigenous background but one which is different from both that of the mother and the father. Mr P’s father has a European background. Mr P believes it was French but is not sure. His mother is a member of the Stolen Generation. She was placed in the Greta Dixon Home in D and was later fostered with a European family in S. She returned to K in 1986 to resume relations with her birth family.
Mr P himself remained in S, living with his father, where he completed Year 11 before starting various apprenticeships. Mr P has apparently done a lot of travelling around Australia. He has also lived from time to time in K to be near his mother.
Mr P has a child, who is now aged about 9. This child is living with Mr P’s sister and has done so since she was about 5 months old. Mr P sees his daughter regularly and she apparently gets on well with T and S.
Mr P’s involvement with the Night Patrol has led to him obtaining a security licence. He is now working for Chubb Security in K and believes this is likely to be his long term career. It is work which he enjoys. He confirmed his and Ms M’s plan to marry and obtain a house in K in the near future.
He described K as a “tight knit community” but conceded there were problems with intoxicated people from time to time. It was a source of significant regret for Mr P that he had “missed out on my culture”. He said that he had picked up a few words of the local languages in K but found it difficult. Mr P speaks English at home, although he does have some knowledge of Creole.

d) The father’s evidence

It was apparent to me that English is not the father’s predominant language, although he speaks it very well. I was however conscious that it was difficult for him to express his views about the somewhat complicated issues, which arise in this case, in English, which is not his mother’s tongue. Accordingly, in some of his statements to the court, he did appear somewhat dogmatic and inflexible. This was a result of his lack of aptitude in English rather than a desire to be dismissive or condescending towards the mother.
He was however a transparently honest witness, being frank about his alcohol use, saying he went to the pub two to three times a week and drank up to ten mid-strength beers on each occasion. The social club at G is apparently open between 5.30pm and 8.30pm each evening, the hours being limited in an attempt to counter alcohol abuse.
It was the father’s position that he had “given up gunja” and when he was at the pub, his parents looked after the children. He described G as “quiet”. He was somewhat critical of K, indicating that in his opinion, there were lots of people living there from “different tribes” and as a result there was a “lot of fights”. On the other hand, he thought there was “a bit of fighting at G”.
The father confirmed that Maung is his first language, although he also apparently speaks his nanna’s language, which is spoken on C I and knows Kunwinjkgu, which is the language of the majority of people at G.
Like his own father, the father placed great importance on the need for the children to know Maung and have a sense of connection with “their” country, particularly as a result of going through ceremonies. More than once, he described the children as “the future of the land”. On the other hand, he thought there was “nothing out at K” for the children.
In this regard, the father asserted that “our culture is very strong and passed on to us. I can name my ceremonies because I have a strong culture. What sort of ceremonies do they have up there?” As I have already observed, it is my view that, due to his lack of fluency in English, the father perhaps appeared unduly dogmatic and dismissive of the mother. He did however indicate that she was a good mother.
At the present time, the father is working, with his mother, in the store at G in the mornings and in the afternoons is a youth worker at the G Youth Centre. He confirmed the mother’s criticism of him that he was not currently paying her child support for the children.
The father also spends extended periods time at his family’s outstation, which is on the mainland opposite G I. In future, if the children live with him, he envisages that they will attend school both at G and G I, the latter being a ten minute journey away from the family outstation by boat.
In future, the father anticipated that he would be involved in his family’s tourism venture at the outstation and would spend more time there. He also said that he would start looking around for a wife in future. In terms of the children spending time with their mother in future, he guaranteed that he would ensure that this would occur and, if necessary, he would charter a plane to this end. He confirmed that he and Ms M do not currently talk to one another at all.

e) Mr L Senior’s evidence

Mr L Senior was a most impressive and imposing witness. His command of English appeared much stronger than either his son’s or the mother’s. He appeared much more confident and assured in the courtroom environment than either the father or the mother. He confirmed that he had been educated at D High School and considers himself to have a “multicultural” background. He regards himself as being a person who has been able to combine the advantages of a European education with those which flow from having a strong connection to land and ceremonial practice. He was obviously a person who was very proud of his background.
Mr and Mrs L Senior have been married since 1977 and have two other children besides the father. Currently Mr L is employed as the CDEP Coordinator for the Demed Association, which administers outstations on the Coburg Peninsula. Prior to that time, he was a project officer with the Northern Land Council. In Mr L Senior’s own words, he has “been significantly involved in ensuring that the country of my ancestors is looked after in the present and conserved in the future.”[27] Mr L Senior describes himself as “an Elder of the M Clan.”
[27] See Mr L Senior’s affidavit at paragraph 3
Mr L Senior is of the view that the children’s best interests will be served if they live in G. His reasons are centred on the benefits of T and S being exposed to his and his wife’s culture, which they in turn will be called upon to preserve and hand on to future generations. In his evidence, Mr L Senior emphasised the children’s role in this continuum of knowledge and preservation. In his mind, the preservation of culture is connected to a knowledge of country and language. He deposed as follows:
“I say that I strongly believe that the children need to know their country and remain closely connected to their links to the country. This can only be done if they live with us and are taught by our stories and ceremony. The only way that they will be able to learn this is by being with an elder/educator who can teach them such things. I believe that my wife, N and I should be able to teach our grandchildren such things. We will pass on this knowledge to our grandchildren as we have done for our own children so that our history is not lost.
We would like it to be able to pass on our cultural knowledge to all of our grandchildren. T and S have cousins that are around their age and we believe that it is appropriate for them all to learn together in this childhood stage. It will be very important to the children that they have learnt this information together. If T and S do not have the opportunity of learning their land in their childhood, then there is a significant chance that they will not know their land enough, and other family members will be able to prevent them from receiving royalties and being clan elders in due course. This will significantly disadvantage them in the future.
We believe that the children should live with us because this is the only way that they will be able to learn their traditional language of Maung. At school they will also learn Kunwinjkgu which is the language of G (O). T picked up quite a bit of this language in the short time that he was attending at school in O and I believe that this is very important. Learning their traditional language of Maung is very important, as they need to speak it and understand it so they can relate to their family and elders with courtesy and respect. We believe that the only way that they will be able to learn their language is to be in an environment where it is spoken.
I say further that T and S need to live with us so that they can learn their traditional language. In the future, they will be called upon to talk for their country. If they do not know the language they will not be able to protect their country. Their country ties are significant and are the basis of their inheritance. They need to know their country. If they do not know their traditional languages they will not be able to talk for their country to protect it.
The children need to learn all of these languages also so that they will be able to fully participate in ceremony, without this, they will have a significant disadvantage. If they cannot speak the language, it will be difficult for them to participate in ceremony, which in turn will mean that they are unable to retain their cultural connections and be considered as connected to the land.
I believe that it will not be possible for the children to only return to take part in ceremony when they are older as they would miss out on a lot of cultural activities whilst they are separated from us. They will not be confident relating to other members of my families, whom will be their mentors whilst participating in ceremonies.
I say that my clan and I are very ethical and strong about our ceremonies. I say we would be very disappointed if they were unable to grow up in O and their capacity to be the spokesmen and women of our clan in the future is jeopardised.”[28]
[28] Ibid at pp 6-10 and 12-13
In his oral evidence, Mr L Senior stressed the important role grandparents had in both caring for children and passing on knowledge. Although he did appear to be an imposing figure, Mr L Senior was positive in his estimation of Ms M describing her as “a good parent”. He also indicated that he was “respectful” of the mother. I accept this is so. It was Mr L Senior’s view that he and his wife had been encouraging and supportive of both the mother and father as parents, when they had lived with them. Overall, I accept that both paternal grandparents have played an important role in the parenting of T and S.
Mr L Senior was also desirous of the children being fluent in English, as he was, and having the benefits of a conventional education, as he had done. He indicated he wanted the children to go to school so that they could “compete in the outside world.” I accept that Mr L Senior is sincere in this wish and his view that the children concerned should be able to span different cultures.
At the centre of Mr L Senior’s evidence is his strong view that it will be of inestimatable benefit to T and S, if they are as immersed as deeply as possible in Maung culture and ceremony. He does not accept that it will be sufficient for T and S to spend time in his country only during school holidays. He does not believe that this will be sufficient for them to be able to talk properly for their country. If they do not live in G, he acknowledges they will still be his grandchildren but will “miss out on a lot”, which no-one “can go back and teach”. At worst, Mr L Senior feared that the children would not be accepted in his country as they would not have a proper level of understanding of its language and ceremonies.
Mr L Senior presented himself as an expert in Maung cultural matters. I accept that he has such expertise. This placed him in a difficult position because inevitably he was called upon to make some judgments about the likely exposure of the children to cultural practices, whilst they lived with their mother. He approached this issue with tact. He deposed that he would ensure that T and S went back to their mother and mother’s family regularly, if they lived at G in future, particularly to enable them to take part in any ceremonies there. However, as the mother was not from his country, he was not in a position to judge her cultural background. However, he went on to say that although he did not know the mother’s ceremonies, he had not seen or heard of any being performed at K, certainly not ones he described as “secret” or “non-public performance” ones.
The clear implication of Mr L Senior’s evidence was his view that, such ceremonies were not performed on the outskirts of urban areas. He deposed himself as “living remote, not urbanised” and said “culture is in the remote communities”. He described himself and his wife as “culture people”, something confirmed by the mother who described them as “traditional”. Again, Mr L Senior stressed the connection between language and culture. His observation was that the mother’s tongue was not being spoken at K. He did not regard Creole as a proper language.

f) J M’s evidence

Mrs M was not required for cross-examination. Her affidavit evidence was brief. She is apparently a person in frail health, as she requires regular dialysis. She did not provide any evidence in regards to cultural matters but deposed as to the closeness of the children’s relationship with their mother and Mr P. I accept her evidence in this regard.

g) The family report and the evidence of Ms P

Ms P is a social worker by profession. She has extensive experience working in psychiatric, child health and family settings. Between 1988 and 1996, she held a senior counselling position at the Family Court of Australia in Brisbane. She has written many family reports and has expertise in assessing the nature of relationships between children and their parents and other significant individuals. She is not however an anthropologist nor does she claim to have any particular expertise in dealing with indigenous families.
Ms P conceded that the task of assessing and reporting on this family, both at K and G, was a difficult one. She did however have the assistance of two Indigenous Family Liaison Officers in her task and was able to spend extended periods at both communities. She visited K in late April of 2006 and G in late June of 2006. Accordingly she was able to observe the children in both locations and was able to provide an assessment of the environment available to the children at both places.
It is my impression that Ms P found it difficult to express publicly her views of her perceptions of the differences between the two communities concerned and was anxious to be culturally sensitive and not give offence. In particular, she seems to have been at pains not to have adopted “too western-orientated” an approach to the matter. However, Ms P’s view was that the contrast between the two environments, where the children had been living, was “striking”.
At G, Ms P found that there was a greater focus and planning about the future and arrangements for the care of T and S than there was at K. Ms P described the community at K as being infused with “a kind of pervasive aimlessness” or of “nothing happening”. On the other hand, she described the Ls as “a group that believes it can make a difference.”
Ms P observed both T and S to interact confidently with family members in both environments. Her impression was they showed only “a little more dependence and apparent attachment to their actual parents”, which was displayed by them occasionally leaning against them or climbing onto their laps. The children were confident with Mr P. In Ms P’s assessment, S was the more outgoing of the two children, with T being friendly but reserved.

Clearly, there will be many cases where it is not possible for the court to consider making an order either that the child concerned lives with his or her parents for equal periods of time or for substantial and significant periods. Whether such outcomes are appropriate will depend on the court’s consideration of whether such orders are likely to be in the child’s overall best interests and the practicality or workability of such orders.
In section 65DAA(5) are listed the criteria which the court must consider in determining whether it is “reasonably practicable” for a child to spend either “equal time” or “substantial and significant time” with both of his or her parents. The criteria are as follows:
“(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.”
Finally, it should be noted that pursuant to section 65D the court is empowered to make whatever parenting order it thinks proper, subject to the presumption of equal shared parental responsibility created by section 61DA.

Determining T and S’s best interests – the section 60CC considerations

The primary considerations

The legislation emphasises the importance of children having a meaningful relationship with both their parents, provided this is likely to be beneficial to them. The practical means provided by the Act for this to occur is through section 61DA and the presumption of equal shared parental responsibility created by it. This in turn leads to considerations of how much time and the type of time children will spend with each of their parents. The implication being that children benefit if their parental relationships are given depth and dimension by them being able to interact with their parents in a variety of roles and settings, which are not artificially confined to either weekdays or weekends or school holidays.
These considerations cause some difficulty in this case. There is no outcome available which will enable T and S to have an equally significant relationship with both their parents, in this temporal or qualitative sense. If I make the orders the father wishes, T and S will see him regularly during the school week and on weekends, as well as during some parts of the school holidays. However, the mother will feel upset and distressed. She will be unable to play as significant a role in the children’s lives, as she has done since the parties separated.
The mother, in her orders sought, has not alluded at all to the concept of equal shared parental responsibility. In addition, she proposes that the children spend alternate weekends with the father. In a practical sense, how she proposes that this will occur is unclear. It is over 280 kilometres between K and G and for lengthy periods of time, during the wet season, it is not possible to cross the E A R.
Accordingly, in all these circumstances, if I make the orders the mother wishes and T and S live with her, it seems more likely that the father will only be able to spend time with the children during school holidays. From his perspective, his relationship with them will not be as fully meaningful as it might otherwise have been, particularly as the children will not be fully immersed in Maung culture.
Accordingly, there is no satisfactory outcome in this case. It is not possible, due to the geographical constraints, for T and S to have an equally significant or meaningful relationship with both their parents. Certainly not in the terms envisaged by the presumptions created by section 61DA and the provisions which flow from it, namely, that children should spend either equal or substantial time with both their parents. This being the practical underpinning of what a “meaningful relationship” is taken to be.
In this context, the use of the word “meaningful” by the legislature is interesting. The ordinary definition of “meaning” and “meaningful” is, when it is attached to an idea or some object denotes the significance or importance of that idea or object. It seems clear that the court is only to consider whether a relationship is “meaningful” to the child concerned, after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the legislature intends the court to consider the significance for the child concerned of having a relationship with both his or her parents in a positive or beneficial sense.
For the father and the other members of his clan, particularly Mr and Mrs L Senior, the level of meaning or significance the children will derive from their paternal relationships depends on the extent of exposure the children have to Maung culture and language. If the children do not know this language and the ceremonies and the geographical entities which are interpreted through it, the children’s relationship with their father and members of their paternal family will be leached of meaning.
My apprehension is that issues of this type are of less importance for the mother, who relies on the emotional significance of the relationship she has with the children to imbue it with meaning for the children. These differences in emphasis, in the parties’ respective cases, are difficult to weigh up and assess in the cultural context of this case.
From the father’s point of view, meaning will be imparted into the children’s paternal relationship by them spending time on their paternal country and knowing its language. Things which cannot be inculcated into the children at a later stage and which, if not imparted into them now, will have wide reaching consequences for their future sense of identity. In a very real sense, it is the father’s case that these matters are essential to the children’s relationship with him being meaningful.
The meaning the children draw from their relationship with their mother depends on them spending time and interacting with her. The relationship has cultural overtones to it, but not to the same degree as their relationship with their father. It is Ms P’s view that this relationship could be sustained, in the event of the children living predominantly with the father, if they continue to spend significant time with the mother in future.
On the other hand, the children’s socialisation, in a meaningful way, into the M clan depends, too a significant degree, on the children spending more time with their father and his family than that which would be available in school holidays. This degree of meaning will be important not only to the children in regards to their relationship with their father, but also in regards to them developing a sense of who they will be in the future. I do not dismiss Mr L Senior’s claim that the children will not be able to speak properly for their country, if they do not lay down the proper connections to it now.
Ms P would not have made the recommendations she did, if she did not believe that T and S were now of an age when they could make this transition without significant difficulties. It was of note to Ms P that “the continuity of the mother’s presence”, during the children’s early years, had occurred in the context of the father’s family. Thus the L’s home is an environment with which the children are very familiar and which is culturally appropriate for them. Ms P also considered that Mr and Mrs L Senior would honour the relationship which existed between the children and their mother by ensuring that they were able to spend significant periods of time with her in future.
The mother, given what occurred after September of 2005, is dubious about this. However, like Ms P, I am optimistic that once litigation between the parties has been concluded, relations between the two aspects of the children’s family will settle down. In addition, the mother, through her counsel, is critical that the Ls left T behind at K in September of 2005. Again, like Ms P, I do not see this as a sinister thing. T’s views, although he was young at the time, were respected by the father and his family.
In these circumstances, I think it likely that if either child, for whatever reason, was unhappy in G or wanted to see his or her mother and spend time with her, this view would be respected. The father and his parents see the responsibility for “growing up” T and S as being vested in many people, the mother and her family included.
All things considered, I have the reached the conclusion that the best chance the children have of having a meaningful relationship with both their parents, to the optimal extent available within the cultural framework of their lives and the prevailing geographical constraints, is if they live with the father and his family in A L and have an opportunity to spend as much time as possible with their mother and her family in the K area.
In reaching this view, I have concluded that, up to this stage, the care of T and S has not resided solely or even primarily in one or other of the parents. Rather the children have been cared for by groups of people, both in A L and in K area. In assessing the degree of meaning which the children currently have in their parental relationships and are likely to have in future, this causes me to place less significance than I might otherwise have done on issues of primary attachment. This is particularly so given the children have lived predominantly in remote or rural areas. Ralph described the “collectivist” view of Aboriginal family life as follows:
“The Aboriginal perspective is based upon a collectivist view of family and social life that sees responsibility for the growing up of children invested in many people. According to this view children come to trust in the capacity and commitment of a multitude of people to care for them and nurture them through childhood and into adulthood. By this means children come to take their place in Aboriginal society where responsibilities and obligation to family and kin are deeply rooted and pervasive.
From this perspective the disruption caused to a child’s primary attachment, for example, is out-weighed by the benefits arising from the child’s exposure to a broader and deeper network of family and kin to whom the child will eventually form strong attachments. The implicit expectation is that children will grow up with maximum exposure to their cultural heritage and take their place within Aboriginal society. From the stand-point of a traditional Aboriginal family living in a rural or remote community this change would ensure the family’s spiritual and ceremonial obligations to the country would be maintained. In this setting cultural and family considerations are highly important in determining the child’s best interests. For Aboriginal people a desirable outcome of such deliberations is the preservation and promotion of Aboriginal culture, particularly its transmission to the next generation.”[35]
[35] Ralph, above, at page 144
It is clearly the father’s position that T and S will benefit from exposure to such a broad network of kin and the spiritual and ceremonial obligations which are entwined with it, which will arise if they live with him. Further that the children being able to be a part of the preservation and transmission of Maung culture is likely to be central to their long term best interests, particularly so far so their sense of belonging is concerned.
The other primary consideration, which the court must take into account, is the need to protect T and S from being exposed to either physical or psychological harm as a result of exposure to abuse, neglect or family violence. It is the mother’s case that the father is an abusive and violent person, whose propensities in this regard are exacerbated by frequent alcohol and drug use.
The father was frank about his alcohol use, which Mr L Senior also acknowledged. However, it is my assessment that Mr and Mrs L Senior would not tolerate T and S being exposed to any violent or abusive behaviour. They have been the protecting and guiding hands of the children for many years. As the mother herself acknowledged, she is satisfied they will take “good care” of T and S.
Nor do I think that the mother would willingly expose either T or S to this type of harm. However, the impression I have from Ms P’s report and evidence is that the mother is less well resourced and has less support than the father. She is more beholden to relatives, at the present time, who come to K to drink. Her mother is unwell. Her cousin L summonsed the Ls to K in the first place, which led to the institution of these proceedings. The mother’s community, in the collectivist sense, is a less focused and cohesive one than that which surround the father’s home at G, where, although it might be criticised for being regimented and paternalistic, everyone knows their place and responsibilities.
As Ms P puts it in her report, at K:
“While the children undoubtedly have their valued place in the group, it is not clear that any individual needs they might have either have been or could easily be prioritised.”
On this basis, I am satisfied that the environment, which the father can provide for the children at G and at his outstation in A L, is the one which is more likely to be conducive to protecting the children from harm.

Additional considerations

Sub-section (a) – T and S are young, being 8 and nearly 5 years respectively. From a “western” perspective, they are too young to have concluded views and for what views they do have, to be given significant weight. This model is not likely to be strictly applicable to the situation of these children. As recently as September of 2005, significant weight was given by the father and his family to T’s view that he did not want to leave K. His wishes in this regard were not questioned at all by the L family.
It is likely that, as a result of the manner in which the children have been raised and socialised to this stage, their future expressions in regards to where they want to live and how they want to interact and spend time with members of their family will be respected, particularly by the father’s family. In this context, my concerns that a change in the children’s living arrangements will lessen the degree of intimacy of their relationship with their mother is considerably abated.
Sub-section (b) – T and S have a close and loving relationship with both their parents. They also have significant attachments to a wide range of relatives on both their maternal and paternal aspects. They are particularly close to their paternal grandparents, Mr and Mrs L Senior. I am satisfied that the children have not been raised in a nuclear family situation.
In this context, the nature of the relationship between the children and Mr and Mrs L Senior is significant. They are likely to provide strong and important role models for the children as they grow and mature. As I have already indicated, it is my view that they have provided significant guidance and support to both parties in their care of T and S. As a result, what psychologists term as “primary attachments” are likely to be less important for these two children.
I accept that both T and S are comfortable with Mr P and have a close relationship with him. However, the relationship between the mother and Mr P is a comparatively recent one. Although I wish the mother and Mr P well, I am not able to say for certain what the future of their relationship will be. I think it likely that the children socialise with adults fairly easily. This seems to be the case for S in particular.
The relationship between T and S and their yet to be born sibling is, for obvious reasons, an unknown quantity at present. I accept that the relationship is likely to be significant but I do not think that the relationship’s potential should significantly impact upon the court’s decision in this case.
Sub-section (c) - This sub-section is a new one and must be read in conjunction with section 60CC(4), which requires the court to consider how each of a child’s parents has in the past fulfilled or failed to fulfil his or her parental responsibilities towards the child concerned. The type of matters which it is envisaged the sub-section will encompass include the payment of child support and adherence and reliability in respect of past contact arrangements. It is a significant sub-section, which emphasises the responsibilities of parenthood and the obligation of parents to meet those responsibilities.
I have not been provided with any specific detail of the parties’ history of child support payments. I imagine neither party’s record would be regarded as particularly satisfactory. I gather the mother receives some financial support from Mr P and also receives some social security. The father has been in employment but under the aegis of a CDEP scheme, which has a large component of social security in it. Neither party is to be regarded as well off financially. Accordingly, I do not believe that either party has consciously set out to evade his or her financial responsibilities for the children. In this regard, I take into account the social context of both parties.
Again, if one views the conduct of both parties through the prism of a nuclear family, living in a suburban setting, there is much of which to be critical in the conduct of both the father and mother, in terms of their willingness to encourage and facilitate a close and loving relationship between the children and other parent concerned. The mother went to live at K after the parties separated and does not seem to have closely considered how T and S would stay in touch with their father. It took him some time to get to K. Thereafter the father took S to G and for a number of months, the child had little if any communication with her mother.
I do not interpret this as an active strategy on the part of either party to exclude the other from the children’s lives. Ms P’s interpretation of the mother’s delay in instituting proceedings is that she was, initially at least, not unduly perturbed by S being with the Ls. She recognised that it was appropriate for this to occur.
Although there is a significant level of bitterness between the parties themselves and they do not communicate with one another, others within the children’s family constellation recognise the importance of the children maintaining ties with both their parents. It is an important matter that Ms P considered that the L grandparents were capable of taking the necessary executive action to ensure that the children did spend the necessary time with their mother in future. I am satisfied that Mr and Mrs L Senior would honour this commitment.
Sub-section (d) – This sub-section has also received significant amendment and now has an explicit reference to grandparents. This is to ensure that the court recognises the importance of the relationships children have with wider family members, in particular, grandparents.[36] Given the manner of the children’s upbringing to this stage, I am satisfied that separation of them, from their paternal grandparents, is likely to be very significant, so far as their long term sense of identity and socialisation is concerned. Mr L Senior is likely to be a significant conduit of knowledge about country and ceremony for both children, but particularly for T. Mrs L Senior is likely to perform this role for S.
[36] See Explanatory Memorandum, referred to above, at paragraph 60
Given the significant and “tender” relationship T and S have with their mother, Ms P sounds a significant note of warning in respect of the consequences for the children of living away from their mother. I do not discount that note of warning and nor did Ms P. It is a significant matter which must be weighed carefully in this difficult case. However, given the children’s background and future needs, it was Ms P’s view that the children’s need for continuity of their mother’s presence in their lives was now less important. I accept that this is so.

In my assessment, the children are capable of making the transition from the mother’s environment to that of their father. The children are comfortable and familiar with life in a L setting. It seems to have many attractions for the children, particularly T, who impressed Ms P with his enthusiasm for the traditional activities in which he engages there.
Sub-section (e) – The matters for consideration under this sub-heading concern me greatly in this case. It is a long way from K to G. The journey requires a sturdy and reliable car. At certain times of the year, G is inaccessible by road due to the flooding of the E A R. At those times, access to the community is only by air charter from J, which is expensive.
Neither party has shown any great aptitude to make arrangements for T and S by reference to a fixed schedule or the calendar. Arrangements often seem to have been made on an ad hoc basis. Communications between the father and mother are now extremely strained, if not nonexistent. Neither party is in a strong financial position and their access to either funds or an appropriate motor vehicle cannot be guaranteed in future. This is not a conducive background against which to make orders for the children to spend time with each of their parents, regardless of the outcome of these proceedings.
However, of the two parties concerned, I believe that the father and his family are likely to find it easier to make the necessary practical arrangements for the children to spend time with their mother in K. Like Ms P, I was impressed with the aptitude of Mr L Senior “to make things happen”.
Sub-section (f) – This sub-section too has been modified to recognise the capacity and role which grandparents can supply in providing for the needs of children, including their emotional and intellectual needs. In the overall context of this case, the amendment is a significant one. Mr L Senior places great emphasise on the children having educational links “both ways”. By which I took it he means access to cultural knowledge as well as to the conventional education system. I accept that both he and the father regard these matters as being of central importance to the children’s long term wellbeing.
Ms P noted a greater vision in the L household in regards to the importance of such things as the children’s education and nutritional needs. I accept that this is so. These factors were of importance in leading Ms P to her ultimate recommendation in the case.
The mother is critical of the father because T missed school for 12 days during the time he was at G. I accept however that his absences was due to the school being closed as a result of damage inflicted upon it by Cyclone Monica. It was Ms P’s impression that T had advanced educationally during the period he had been at G. She noted the interest that both children expressed in their school, when she observed them at G.[37]
[37] See family report at paragraph 14
Sub-section (g) – Given the emphasis in the relevant legislation on the children’s aboriginality, the matters for consideration under this sub-section are not relevant in this case.
Sub-section (h) – As these somewhat lengthy reasons for judgment reveal, this is one of the central issues in the case. It is an issue not without its difficulties. The court is required to consider the child concerned’s right to enjoy his or her Aboriginal culture and the impact any parenting order has on that right. Pursuant to section 60CC(6), this right includes the right to maintain a sense of connection with that culture; and to be able to explore and appreciate it in a positive way. Pursuant to section 4(1) culture is taken to include both “lifestyles” and “traditions” of Aboriginal people.
As Ryan FM observed in H & H[38] “there is great debate over the meaning and concept of culture. However, it is almost universally accepted that culture is learnt, rather than biological.” Accordingly, T and S’s right to enjoy their Aboriginal culture is not innate within them but must come about through direct exposure to it.
[38] H & H (supra) at page 270
The difficulty in this case is that the children enjoy an Aboriginal heritage on both their paternal and maternal aspects but these cultures cannot be regarded as being homogeneous with one another. Rather, for a variety of complex and historical reasons, they are significantly different. The question which arises therefore is how the children’s entitlement to enjoy both aspects of their cultural heritage should be expressed and what level of exposure they should have to each of them.
As the Full Court noted in Re:CP, it is incumbent on the court, in a case such as this one, “to take into account and balance” different types of Aboriginal environments, from the perspective of the child concerned’s best interests. In undertaking this task, the court should not engage in any invidious comparativism or make value laden judgments about which culture it perceives to be superior. Clearly, it is a task which must be approached with some delicacy. However, the court cannot ignore differences.
In this sense it is of note that section 60CC(6) speaks in terms of maintaining a connection with and exploring culture. These are active pursuits, particularly the latter one. It is the father’s case that, given the nature of his culture, which has at its heart the need to preserve ancient language and customs, which by implication he believes are under a significant level of threat from a dominant European culture, that the children need to actively experience their paternal linguistic and ceremonial inheritance, on a day to day basis. He and his father place weight on the uniqueness of Maung culture; its comparative isolation; and above all, its complexity.
From their perspective, the children cannot maintain a proper sense of connection nor explore or appreciate their Maung culture in a half-hearted way, given the culture’s vibrancy and complexity. Certainly they do not believe it can be assimilated retrospectively or speedily. I accept that this is so. For the children to have a proper sense of connection with their Maung culture, they need to have an active and prolonged experience of it. The best way for this to occur is if they live with the father in A L.
I accept that, if this does not occur, there is a significant risk that the children will not be able to speak Maung properly and so will be alienated to some degree from the cultural traditions and ceremonies, which are associated with their paternal country. The children may not be able to speak for their country, when they are adults. As Ralph observed, the transmission of Aboriginal culture, from generation to generation, is highly influential in determining a child’s best interests, from the Aboriginal perspective.
This is not to discount the significance of the mother’s cultural inheritance to the children. Rather it is to express its difference from the father’s, particularly the long term consequences for the children and their sense of connection and identity, if they are not exposed to Maung influences and do not have a proper appreciation of its complexities and subtleties.
Sub-section (i) – There is a significant level of overlap between the matters which fall for consideration under this sub-section and other sub-sections, including those containing the primary considerations. In this case, as Ms P noted, persons other than the parents themselves, have played a significant role in caring for T and S in the past. In this context, I accept Ms P’s evidence that the L household provides a more structured and cohesive environment in which to raise the children. The father, given his access to his parents, has more resources to fulfil his responsibilities to parent T and S than the mother does.
Sub-section (j) – The mother raises serious concerns about her exposure to family violence, at the father’s hand. I do not believe that I am in a position to make a positive finding that such family violence occurred on a protracted basis, as a result of the evidence led before me. However, it would be imprudent of the court to too easily dismiss the mother’s concerns.
At the present time, the father is living in close proximity to his parents. They do not drink alcohol and have a demonstrated antipathy to family violence, inflicted by a man on a woman. Some may disapprove of Mr L Senior’s action in physically retaliating against the father for being violent towards the mother, but his action does demonstrate his strong disapproval of the father’s behaviour. In these circumstances, I think it unlikely that the children would be exposed to family violence, whilst living with the father.
Sub-section (k) – There is no such family violence order in this case.
Sub-section (l) – I do not think that the matters which fall for consideration under this sub-section are especially relevant in this case. Whatever is the outcome, it has the potential to be problematic.

Conclusions

This is a difficult case, which does not provide a ready or easy solution. It is not possible for the children concerned to either spend equal time or substantial and significant time with both of their parents. Accordingly the optimal outcome envisaged by the applicable legislation is not open to the court in this case.
In the context of the children’s rich indigenous background, inherited from both their parents, the court is required to consider the arrangement which will provide the children with the prospect of having the most meaningful relationship with both their parents, as well as the other relevant legislative factors, which are determinative of their best interests, both in the short and long term.
In considering these matters, I have been highly influenced by the evidence of Ms P and Mr L Senior. I have come to the conclusion that the children will do better and have a more fully developed sense of identity, if they grow up in A L with the father, where they will be able to assimilate more easily and completely the Maung aspects of their background. I also consider that this is likely to be the best means by which the children will gain a “positive appreciation” of that culture.
I accept Ms P’s assessment that the L household is a more focused and cohesive one, in which there is likely to be more attention paid to the children’s needs, particularly in regards to their education, both conventional and so far as traditional matters and ceremony are concerned.
I recognise, given the ages of the children involved, particularly S, that it is no minor thing, to paraphrase Ms P, to make orders that will see the children living away from their mother. However, section 61F requires the court to have regard to the kinship obligations and child-rearing practices, arising from the circumstances of any Aboriginal child involved in the proceedings before it. I consider that considerations of Maung kinship are likely to be central to the present and future sense of identity of these children. In addition, the manner in which the children have been raised, up to this point, has included their paternal grandparents to a significant degree.
For these reasons, I have come to the conclusion that T and S’s best interests will be served if they live with their father predominantly and spend time with their mother. Necessarily the time the children spend with their mother must be confined to school holidays and to specific cultural activities or ceremonies involving their maternal family.
Although the possibility of T and S spending equal or substantial time with both their parents, which follow from the presumption created by section 61DA is not applicable in this case, it is appropriate that the parties have equal shared parental responsibility for T and S.
Pursuant to the provisions of section 65DAC, the effect of the order for equal shared parental responsibility is that the parties are required to make joint decisions about major long term issues to do with T and S. Such long term issues include matters to do with T and S’s education (both current and future); their religious and cultural upbringing; their health; and any changes in their living arrangements which may make it significantly more difficult for T and S to be able to spend time with one or other of their parents.
Pursuant to the provisions of section 65DAE, the parties do not have to consult about issues that are not major long term ones and accordingly it is not necessary for the court to make orders in respect of T and S’s care, welfare and development, which arise on a day to day basis.
As I have already observed, arrangements for the children to spend time with their mother will be difficult as complicated logistical arrangements arise concerning the children travelling between G and K. In his evidence, the father indicated his willingness to pay for an air charter, if it was necessary in future. My assessment is that the L household is likely to be in a stronger financial position than the M/P household.
In addition, one of the assumptions on which I have reached the conclusion I have, is that Mr and Mrs L Senior are both willing and capable of ensuring that the children’s relationship with their mother is honoured in future. Accordingly, I propose making the father responsible for the costs of both delivering and collecting the children before and after they have spent time with their mother.
In addition, I do not believe that the father’s proposals for the children to spend only two occasions each year with the mother is sufficient.

I propose making orders that will see the children spending at least three holiday periods each year with the mother. The appropriate time for the children to start living with the father is the end of the forthcoming school holiday in September/October 2006.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and thirty-four (234) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: C W

Date: 15 September 2006