M and L (Aboriginal Culture)

FAMILY COURT OF AUSTRALIA

M & L (ABORIGINAL CULTURE)

[2007] FamCA 396

APPEAL – Children – With whom a child lives – Indigenous cultural issues – Family violence – Evidential issues – Mother’s appeal against orders that the two children aged 5 and 9 live with their Father – Mother and Father are of different Indigenous cultures and communities – Held (per Kay and Strickland JJ, Warnick J dissenting) that the appeal be allowed – Federal Magistrate perceived that the children would be best off if they were fully immersed in the Father’s culture in a remote community rather than being brought up by the Mother as fringe dwellers in an urban community – Federal Magistrate relied on unsupported findings of collective care by the Mother, did not adequately consider the risk to the children in light of the Father’s history of violence and alcohol consumption, and did not appear to consider the capacity of each parent to provide for the needs of the children – Serious evidential deficiencies as to the quality of care offered by each party – Trial Court can and ought to make enquiries of the parties to alleviate the deficiencies and if necessary adjourn the further hearing to enable appropriate evidence to be presented – Matter remitted for retrial.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Hughes v National Trustees, Executors and Agency Company of Australasia Limited (1979) 143 CLR 134
Jones v Sutherland Shire Council (1979) 2 NSWLR 206
Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712; (1986) 10 Fam LR 819
Ritz Hotel v Charles of the Ritz (1988) 15 NSWLR 158; (1988) 88 ALR 217

APPELLANT:

MS M

RESPONDENT:

MR L

FILE NUMBER:

DNM

2006

APPEAL NUMBER:

2006

DATE DELIVERED:

4 May 2007

PLACE DELIVERED:

Darwin

JUDGMENTS OF:

KAY, WARNICK & STRICKLAND JJ

HEARING DATE:

19 MARCH 2007

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 September 2006

LOWER COURT MNC:

[2006] FMCAfam 488

REPRESENTATION

COUNSEL FOR THE APPELLANT:

MS DAVIS

SOLICITORS FOR THE APPELLANT:

DAVIS NORMAN

COUNSEL FOR THE RESPONDENT:

MS GEARIN WITH MS PORTELLI

SOLICITORS FOR THE RESPONDENT:

NORTH AUSTRALIAN ABORIGINAL JUSTICE AGENCY

Orders

1. The appeal be allowed.
2.The orders made by Federal Magistrate Brown on 15 September 2006 be set aside.
3. The competing applications for parenting orders be remitted for retrial before a judicial officer other than Federal Magistrate Brown.
4.That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
5.That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
6.That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of the costs incurred by each party in relation to the new trial.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT DARWIN

Appeal Number: NA 81 of 2006
File Number: DNM 53 of 2006

MS M

Appellant

And

MR L

Respondent

REASONS FOR JUDGMENT

KAY J

The is the mother’s appeal against parenting orders made by Brown FM on 15 September 2006. The orders concern two children T born in February 1998, now nine years of age and S born in December 2001 and now five years of age.
When T was born the father was 14 years of age and the mother 17. They had met while they were students at a boarding school in Darwin. By the time S was born the father was 18 and the mother 21.
Both parents have an indigenous background. The father and his family come from the north east region of the Northern Territory and the mother from the outskirts of a town south of Darwin (hereafter referred to as X) .
According to the mother after T’s birth the parties moved to an island off the north coast of the Northern Territory where they stayed throughout 1998. In 1999 the mother and T moved to live with her parents and extended family at X whilst the father went back to school. In 2000 the mother and T joined the father in a small town east of Darwin and in the middle of that year they moved to X where their relationship was punctuated by significant violence culminating when the mother took the children to a women’s shelter after the father attacked her car with an axe. Some years later in 2004 the parties resumed cohabitation in the small town east of Darwin and were together again until 2005 when the mother took the children back to X. In mid-September 2005 the father accompanied by his parents came to X and took S away with them to a remote town east of Darwin, leaving T behind when he indicated that he wanted to stay with his mother.
The mother commenced proceedings in February 2006 seeking to recover S and the father cross-applied seeking to have both of the children live with him.
Interim orders were made that saw the children with their mother in March and April of 2006, with their father in May and June of 2006 and then with their mother again from July 2006 until the judgment was delivered in September 2006.
We were informed at the hearing of the appeal that after judgment was delivered S was handed over to the father and his parents but T refused to leave his mother. A formal stay of the orders was granted in February 2007 pending the hearing of the appeal which left T in his mother’s care and S in her father’s care.
The orders, the subject matter of the appeal, envisaged the children spending time together with each of the parents. They have not been implemented.
In his judgment the Federal Magistrate said that there was no satisfactory outcome to the case. There was no outcome available which would enable the children to “have an equally significant relationship with both their parents” in either a temporal or qualitative sense. He noted that it was over 280 kilometres between X and the remote town and that for lengthy periods of time during the wet season it was not possible to cross the East Alligator River which effectively made access from the remote town to the rest of the Northern Territory other than by air, a virtual impossibility.
Ultimately the magistrate concluded that the children should live with their father. He said:
181.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 [north east Northern Territory] and have an opportunity to spend as much time as possible with their mother and her family in the [area of X].
182.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 [north east Northern Territory] and in [the area of X]. 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.”
183.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 [the father’s] culture is likely to be central to their long term best interests, particularly so far so their sense of belonging is concerned.
He said that he considered that considerations of the father’s culture and kinshipwere likely to be central to the present and future sense of identify of these children. This would be best inculcated into the children if they were to live amongst the father’s people rather than simply have occasional exposure to it if they are to basically reside with their mother.
The Federal Magistrate accepted the evidence of the family consultant that the mother’s living conditions in X were somewhat chaotic. Her report described the mother as living with and caring for her mother “a sick woman” and living with other relatives in a house rented in the mother’s name in the community at X. Living in a house next door were a brother, an uncle and others. The house had recently been visibly submerged in a flood and the children were sharing a mattress in one room. It was said that there were numerous members of the extended family living in the house and there were others from a nearby “dry” community visiting on a daily basis “to have a drink”.
By way of contrast the father was described as living in his parent’s large communal house with his brother and his brother’s five children. They also had access to the paternal grandfather’s outstation in north east Northern Territory that they visited regularly and where they hoped to develop a tourist business. She said:
The [father’s] family made it clear that it was of “major importance” to them, that the children know the country they are from as well as its language, and learn from their father and uncles how to care for it.
The family consultant commented that the father’s extended family group was highly functional and stressed the fundamental importance of ensuring that T and S as well as other children in the group, had good access to educational opportunities.
She finally concluded that:
…the children’s education and their socialisation towards taking an active approach to the future would be best supported by their living with the [father’s] 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 [mother’s] side, including their spending significant time with that family.
Essentially the Federal Magistrate accepted the recommendation of the family consultant and made orders that were in accordance with it.
In the course of a very long judgment the Federal Magistrate noted that the affidavit material of the parties was brief. Neither the father nor the mother was subjected to extensive cross-examination. He noted that it would have been useful for the court to have heard from members of the mother’s community at in X, particularly her cousin and her own mother (who had sworn an affidavit but was unable to attend the proceedings). His Honour made comment that he had only heard from the paternal grandfather but there were no other witnesses called from the father’s family. The absence of any witnesses on behalf of the mother meant there was more evidence available as to the cohesiveness of the community at the remote town than there was of the community at X.
He said:
58.My impression of the case, from the evidence of all the witnesses in it, including [the family consultant], 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)
59.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.
60Having 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 R P] were more assured in the court environment and both of them were honest and impressive witnesses.
The finding in para 58 that the children had been raised in a collectivist manner was very much in contention in the appeal.
The Federal Magistrate did not accept the mother’s evidence that the parties had only lived in the small town east of Darwin until mid-2000 and found it more likely that they lived there until November 2003 when they returned to live near X. Seemingly the Federal Magistrate accepted the father’s evidence that the parties remained together in the town until the father returned to the small town east of Darwin in February 2005.
This finding seems to be in stark contrast with the father’s admissions made in cross-examination. The mother’s evidence was that she had gone back to live with the father in the small town east of Darwin and it was there that there was continued assaults that finally led her to leave. At Appeal Book page 175 the following sequence occurred:
[The mother] went to [the small town east of Darwin] in 2004 to begin the relationship with you again, didn’t she? Get back together again? When you were out at [the small town], you were living together with [the mother] for a while, weren’t you?---Yes.
Is that right?---Can’t remember. Hang on, I will just think. Yes, that is – yes, 2004, she came. And then ---
And then in 2005 [the mother]and the children returned to [X] to live?---Yes, returned to [this town]. And from then ---
And there were a lot of fights between you and [the mother]before she returned to [X] in 2005, wasn’t there?---No, yes, there wasn’t much – much fighting there at the time.
Okay?---Yes, at that time, when she came out there. Just a bit of argument, yes, a bit of argument and that is it. I just said, “Look, it is not working out for us, so why don’t we just, yes, lay it off for a while.” And then for a while went on.
See, [the mother]says in her affidavit that she left the relationship because she didn’t want the children to see the bad things that were happening between she and you?---It was just about to work, and then she took off.
[The mother]says in her affidavit that you kicked her, punched her and dragged her during arguments that you had with her?---I didn’t---.
What do you say about that?---I didn’t kick, I didn’t punch her. I only pushed her. In every argument, just pushed her away from me. Just pushed her away, instead of---
Do you remember punching her?---I don’t really remember punching her. She hasn’t got marks on her face, you can see it now. Or bruises.
And what [the mother]says in her affidavit---?---Just only some slapping, yes. Slap and push her.
…
If you were angry, though, and you were yelling at each other or someone is yelling at somebody else, if the children were playing outside, they would hear that?---They would hear that. But yes, sometimes they will just keep on playing.
Because they would hear their mum being upset?---Yes. They would see, like, later on.
See her crying, yes?---Yes, no, no.
Would they see [the mother]crying after you had fights with her?---Yes, she would, yes, go outside, yes, and show it to the kids. That is how the kids – as soon as they go outside crying and all that stuff.
Now, when [the mother]– it was after one of those fights that you had with [the mother]that [she] said to you, “I’m going back to [X] to live”, something like that. That is how it ended?---Yes.
…
Because you had a big fight shortly before she went, didn’t you? Can you remember?---Yes. There was – yes, one argument, and yes, we had the one fight, then---
And did that fight involve slapping and pushing?---Yes.
So when you say you slapped [the mother], where would you slap her?---I would just - you know, because she would come close. Throw her head – yeah, throw her head always around me, so yes, I would just – maybe yeah, just slap her, slap her just to wake her up a bit.
Just slap her across the face?---Snap out of it, yes.
Did you slap – is that right?---Yes.
Was that across the face?---Yes.
The mother asserted that the father had been particularly violent towards her, often in the presence of the children during the course of their relationship. The father’s response that there had been some domestic violence in the relationship but never in front of the children. He admitted there was an occasion when he took out an axe and smashed the windscreen of the mother’s car but he asserted that he was in the house at the time with the children. He further asserted that the mother often had temper tantrums and displayed bad attitude.

The Federal Magistrate commented that family violence was a current and very serious issue in many aboriginal communities, often exacerbated by the ruinous abuse of alcohol. He said that it was of some note that the mother herself did not raise any concerns about the father’s alleged violent behaviour towards her with the family consultant.
This observation at para 79 of the judgment was the subject of significant comment before us on appeal. In the course of cross-examination of the family consultant by Ms Davis on behalf of the mother, the following passage occurs.
You see whilst you’re critical of her for those things you make no mention in your report about the impact of the violence that was perpetrated on her by [the father] during the period of the relationship or how that has affected her ability to parent or negotiate with [the father] have you?---Right.
Have you?---Correct.
That is a very serious issue, isn’t it?---I do think that it warrants attention and it isn’t there.
Why not?---It’s an omission.
FEDERAL MAGISTRATE: Was it something [the mother] herself raised with you, [the family consultant]?---Well, I was just thinking about that because I knew about it from the papers.
From the papers, yes?---And really I could have opened it up with her and I suppose I didn’t. What I heard more about from her in person was [the father’s] going off with other women and not coming home and not being there, and I didn’t say what about the violence. It’s true, I didn’t.
MS DAVIS: It was a matter that is fairly raised in her affidavit?---You’re right and I think, you know, I do think – obviously I know it has an impact on a person and one thing that I do recall which is relevant in this question and which is not mentioned in my report is that she was telling me about a time and I may not know the date of this time but a time when, it’s probably when she was having a temporary reunion with [the father] and everyone was going to go out to the outstation, and she said she would not go because that’s where violence had occurred before. And everyone went and she was alone in the big house and she said the people from the next door house came and got her. She didn’t like being alone in the big house. That was actually the thing she put the emphasis on and it’s no excuse but to some extent it distracted me perhaps from thinking I must follow up about the violence. And in part I said to myself, it’s in the past, but I accept your point that it affects a person if they’ve experienced it.
The issue of the father’s violence to the mother was corroborated by the paternal grandfather when in cross-examination he said that when the father actually physically hit the mother, a couple of times he hit the father. The Federal Magistrate at para 81 referred only to one incident although clearly there was more than one on Mr L Senior’s evidence.
When discussing the violence the Federal Magistrate went on to say at para 82:
…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.
If, by that observation, the Federal Magistrate was reaching a conclusion that the children would be unlikely to be exposed to violent behaviour by their father because of the presence of the grandfather it seems to me significant to recall the grandfather’s evidence in cross-examination is that it was not yet certain whether the children would live at the remote town or at the outstation. The grandfather said there were no plans but that if the father was to be at the outstation he would expect the children would be with their father.
It was clear from the evidence that from February 2005 until September 2005 the children were in the care of the mother and had no face to face contact with the father.
The father had asserted that the children had been often left in the care of Ms L M with whom he was in frequent telephone contact. He had said that Ms L M had told him that T had had hepatitis in 2005 and that she had nursed him and taken him to hospital rather than the mother. He further asserted that it was Ms L M that called him and told him that he should come and collect the children who had been left with her. This issue was never canvassed at all in cross-examination of the mother nor was any attempt made by either party to call Ms L M or any other person to give evidence about any unsatisfactory aspects of the arrangements made for the children whilst they were in their mother’s care from February until September. The family consultant conceded that the mother had made no admissions to her about it. It was not a topic that was addressed at any length in the cross-examination of the father other than to discuss the circumstances in which S was taken and T was left in X. When cross-examined about it the father said that he had received a call from Ms L M in which she said: “I’m stressing out. I think you should come and pick the kids up.” He was then criticised in cross-examination for failing to discuss the complaint with the mother but otherwise the topic was left alone.
There was unchallenged evidence of the mother’s witnesses Mr R P, described as her fiancé and of her mother.
Mr R P deposed that:
…[the mother] is good mother with a good sense of responsibility. She cares about her children and always ensures that they have a good routine. She teaches them and encourages them to study. She reads them a lot of books and participates in activities such as painting and telling them stories. She always comforts them when they need her.
Mr R P gave oral evidence. There were no questions directed to him about who, other than the mother, had responsibility for caring for the children in X or about any other aspect of the quality of care provided for them by the mother.
One of the paradoxes in the father’s case is that the paternal grandfather said that the children would be in the care of their father, but that the father said that if the children were living with him, for the most time they would be cared for by the maternal grandmother (at p 189).
At p 199 the paternal grandfather said that the mother had been a good parent, and at p 201, that he had no concerns about her as parent.
At p 202 he said that if the children lived with their mother they could still maintain a very strong connection with his family and the land if they visited regularly although their language would probably miss a lot. He went on to say that the difference between his culture and the mother’s culture is that he lives in a remote community whereas the mother lives on the outskirts of an urban area and that all of the cultural practices are held in remote communities.
Having identified the competing claims, having touched on many of the matters that the parties have raised in their various cases, having perhaps skirted over the domestic violence issue more than it ought to have been skirted over, the Federal Magistrate reached the conclusions already referred to but worth repeating
181.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 [north east Northern Territory] and have an opportunity to spend as much time as possible with their mother and her family in the [area of X].
182.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 [north east Northern Territory] and in [the area of X]. 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…
He reached a number of conclusions about his impression of the quality of life of the mother
186. Nor do I think that the mother would willingly expose either [T] or [S] to this type of harm [alcohol or violence]. However, the impression I have from [the family consultant’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 [the community in X] to drink. Her mother is unwell. Her cousin [Ms L M] summonsed the [father’s family] to [her home] 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 [the remote town], where, although it might be criticised for being regimented and paternalistic, everyone knows their place and responsibilities.
Then at 187 his Honour said
As [the family consultant] puts it in her report, at [the community in X]:
“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 [the remote town] and at his outstation in [north east Northern Territory], is the one which is more likely to be conducive to protecting the children from harm.
Exactly what the harm was that might befall the children in the care of their mother was not defined either by the Federal Magistrate or the family consultant.
His Honour indicated that he was conscious of the decision that he reached and that the children would be removed from their primary caregiver, but felt confident they would be capable of making the transition. He found that there was a “greater vision” in the father’s family’s household in regards to the importance of such things as the children’s education and nutritional needs. In fairness to the mother, there seemed to be little if any evidence relating to those matters being neglected in the mother’s care.
He ended by saying:
222.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.
223.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.
224.In considering these matters, I have been highly influenced by the evidence of [the family consultant] 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 [north east Northern Territory] with the father, where they will be able to assimilate more easily and completely the [cultural] aspects of their [father’s] 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.
225.I accept [the family consultant’s] assessment that the [father’s family’s] 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 question whether legislation requires proper consideration of reaching the arrangement with which would provide the children with “the most meaningful relationship with both of their parents”. The statutory requirement when determining what is in a child’s best interests is to give primary consideration to the benefit of a child having a meaningful relationship with both parents, not the most meaningful relationship. (s 60CC(2)(a) Family Law Act 1975 (Cth)).
In this case the prospect of the children being able to being frequently exposed to the company and culture of the absent parent is made all the less likely by the tyranny of distance and the significant lack of resources in either household. The Court must accept that these children cannot be maximally exposed to two different lifestyles and cultures. It needs to choose in which parent’s care the interests of the children will be best advanced. It must do so by acting upon the evidence available.
If there is a serious deficiency in that evidence the Court can and ought make enquiries of the parties’ representatives as to how that deficiency can be alleviated, and if necessary adjourn the further hearing to enable the evidence to be presented. It cannot speculate nor presume what that evidence might otherwise be. In this case there was no case properly mounted by the father that the mother’s care for the children was inadequate.
No witnesses were called to support that assertion. Concessions were made that the mother loved her children and parented them appropriately. By way of stark contrast there was ample evidence of the father’s violent behaviour and alcohol abuse. These matters seem to have been almost put to one side and matters aimed at maximising the children’s opportunity to become immersed in their patrilineal culture became to dominant consideration.
There were eight grounds of appeal contained in the Notice of Appeal The grounds were as follows:
1.The Federal Magistrate failed to give sufficient weight to the children being primarily attached to their mother.
2.The Federal Magistrate failed to give sufficient weight to the fact that the father had not had substantial involvement in the children’s lives at least since separation.
3.The Federal Magistrate failed to properly consider the effect of the father’s violence on the mother and its effects on the children.
4.The Federal Magistrate failed to properly consider the effect of the father’s alcohol consumption on the children.
5.The Federal Magistrate erred in determining that the mother left the children with others for extended periods of time on a regular basis.
6.The Federal Magistrate did not give sufficient weight to the fact that the mother had been the children’s primary carer since their respective births.
7.The Federal Magistrate failed to consider the separation between the children and their soon to be born sibling.
8.The Federal Magistrate gave insufficient weight to the mother’s cultural background and history
Grounds 1, 5 and 6 were argued together. The essence of the grounds as argued was that the finding in para 182 that the care of T and S has not resided solely or even primarily in one or other of the parents was contrary to the evidence and the weight of the evidence. It was said that there was nothing in the evidence to suggest that anyone other than the mother had been the primary caregiver of these children throughout their entire lives. She had always been with them until S was removed in September 2005 without her knowledge or permission. The only other period when the children were out of her care was the period from 4 May 2006 until 4 July 2006 when both children were with their father pursuant to the interim order.
Other than the father’s complaint that the mother’s cousin had told him that the children were being left in her care of inordinate periods of time, there was no evidence to corroborate that hearsay assertion nor was there any attempt made to call such evidence. There was an admission made by the paternal grandfather that the mother was a good mother. It was said that overwhelmingly the conclusion ought to have been that the mother had been the primary caregiver of the children throughout their lives.
At its highest the evidence of the family consultant was that it was her thought that “the children were in the care of others to some extent” (page 224). She also said (at 235) that it was her feeling that the people surrounding the mother:
would all be involved and the children experience their lives in relation to everyone in that group, some of whom as I say visited daily, some of whom as I say lived in the house and some lived in the next door house, it was part of a whole set up. So, I thought that both of them, the children lived in that group and we paid attention to [T] in particularly, feeling tenderly close to his mother in that group…
The Federal Magistrate cited a passage from an article written by Stephen Ralph entitled “The Best Interests of the Aboriginal Child in Family Law Proceedings” which was published in (1998) 12 Australian Journal of Family Law at 144. In particular his Honour made reference to the following passage:
“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.”
The criticism of his Honour’s approach is that whilst the observations of Mr Ralph may be appropriate for some sections of some aboriginal societies, there was no anthropological evidence before the Court called to indicate what the practices were in the mother’s community at X nor the appropriateness of applying generalised attitudes towards the specific situation in hand.
All that being said however, the Federal Magistrate was still cautious and aware of the problems involved in removing the children from their mother and the risks attendant upon it:
“200. Given the significant and “tender” relationship [T] and [S] have with their mother, [the family consultant] 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 [the family consultant]. 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 [the family consultant’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.
It was said further that the focus upon the collectivist method of caring for children removed the appropriate focus that ought to have been made upon the capacity of each of the parents to provide for the needs of the children, including their emotional and intellectual needs. It was also submitted that there was an inappropriate lack of focus upon the need to protect the children from physical harm or being subjected or exposed to abuse or family violence. It is clear the Federal Magistrate was conscious of the allegations being made when he said that in the mother’s case, she alleged that the father drank to excess, abused marijuana and had been violent towards her in the past.

He returned to identify these matters again at paras 184 and 185:
184.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.
185.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].
The criticism that is made of the manner in which these matters were effectively passed over by the Federal Magistrate is that they seem to have been effectively discounted without any evidentiary basis for so doing.
There is a finding at para 219 is that because of the paternal grandfather’s capacity to have some influence over him it is “unlikely that the children will be exposed to family violence, whilst living with the father”. The evidence was however that there had been more than one occasion when the father was living in the immediate presence of his own father and yet he still struck the mother. The grandfather thought it appropriate to physically strike the father in some form of disciplinary action.
Further it was indicated that the father would drink at least ten beers at a time when he had the opportunity after work and that the grandfather said in his evidence that the father was old enough to look after his own drinking habits.
It is difficult to conclude that these serious matters were given appropriate weight. This was not a case in which the community of the remote town was competing against the community of X to determine which community would better raise these children.
Warnick J cites two paragraphs from the FM judgment dealing with Mr [L] Senior as follows:
55.… 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.
56.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 [the remote town] than I was given in respect of the community at [X].
The finding in para 56 overlooks entirely the evidence of the family consultant about other people’s lives in the remote town when she said at AB p 241 when talking of the competing households rather than the communities:
I think that they need their emotional bonds to be honoured but there was in my impression of that community more of a kind of pervasive aimlessness in observing others in the vicinity as well, such as I actually experienced on a previous visit to - on a different occasion to another group in [the remote town]. So, in way this contrast is strong to me because my other – my only other experience of [the remote town] was one of aimlessness nothing happening, nothing thought about, nothing envisaged, who knew what prospects for the child we were thinking about. Garbage everywhere, stuff hocked or whatever, children dirty, no decent food, extravagant sound equipment. You know, that was my impression of [the remote town]…
…
…Those bad words I used about the other place I visited in [the remote town], they’re more negative than I would say about [the community at X]…”
This was a case in which the determination had to be made as to whether the children should live with their mother or their father, not whether they should live in X or the remote town. There was even some evidence that there might not be a continuity of residence in the town by the mother as she and her new partner Mr R P had spent some time exploring the possibility of living in Darwin whilst Mr R P worked as a security guard. The father was unsure whether he would remain living with his parents or at an outstation many kilometres away.
Ground 7 relating to the issue of the separation of the children and their yet to be born sibling was not pressed upon us in the course of any oral argument and in light of the matters set out in s 60CC(3) could only be speculative at the best. There was at the time of the hearing before the Federal Magistrate no question of separating the children from any other child with whom they had been living.
It seems to me that the judgment is unsustainable due to the unsupported finding of collective caring by the mother and the inadequate emphasis on the risk to the children posed by the father’s history of violence and alcohol consumption. Issues of the primacy mother’s care and the admissions that it had been entirely satisfactory were overlooked in favour of the theory that these children would be best off if they were fully immersed in their father’s culture living in a remote community rather than being brought up as fringe dwellers in an urban community.
The primary judgment carries an unproven assumption that there was something lacking in the quality of care shown by the mother towards these children in the total absence of any evidence to support such a finding. When discussing each of the necessary considerations mandated by s 60CC(3) nothing is said at all about what might be the most important matter namely the capacity of the parents to provide for the needs of the children. Attention is given only to the grandparents (see paras 205-7). It is to be remembered that the grandfather’s evidence was that he would defer to the father’s role in being responsible for the children’s care. I think this a serious flaw in the judgment.
I have read Warnick J’s discussion about ground 8 and agree with his conclusion that the ground has no merit.

Outcome

I would allow the appeal, set aside the orders made by Brown FM on 15 September 2006 and remit the competing applications for a rehearing. I would grant each party appropriate costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth). I would add a further comment that upon any rehearing it would be appropriate to have the children separately represented. Hopefully some anthropological evidence might be led concerning the ability of the children to absorb an adequate amount of the culture of either parent during extended holiday visits.

WARNICK J

Eight year old T and his 5 year old sister, S, are Aboriginal children. When their mother, Ms M, and father, Mr L, could not agree on parenting arrangements for their children, the dispute went to trial before Federal Magistrate Brown in August 2006. Cultural issues loomed large in the hearing, for though both parents are Aboriginal, the ways of their people are different and the degree of connection between each party and their people varied. The parents lived far apart.
Brown FM ordered (on 15 September 2006) that the children live with the father and spend time with the mother for substantial school holiday periods. These reasons are in respect of the mother’s appeal against those orders.
Essentially, the mother argues that the Federal Magistrate failed to give sufficient weight to the mother’s cultural history, her past primary care of the children and to poor behaviour on behalf of the father. In only one ground were the findings of fact directly challenged and that is in respect of the time with which the mother left the children with others. However, some challenges to, or at least questioning, of findings arose in the course of submissions in support of other grounds, and those questions will be dealt with so far as is necessary.
Before I return to the grounds of appeal, I will set out as background the facts and Federal Magistrate’s reasons to the extent necessary for an understanding of the case.

Background

Unless otherwise stated, the facts and quotes in this background are taken from the reasons of the Federal Magistrate.
The parents were very young when their relationship began. When T was born in 1998, the father was about 15 years old, the mother about 18 years.
3.Both the father and mother have an indigenous background but their culture and traditions are different. The father and his family come from [north east Northern Territory]. It is a remote area of Australia. He is a member of [a clan] and speaks [its language] as his first language.
4.The mother grew up at the [a community], on the outskirts of [a X]. On her father’s side, the mother has connections to [certain kinship people], although her grandfather was originally from [another area]. On her mother’s side, she has connections with the [a different kinship group] and those who live [elsewhere].
5.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 [an island off the north coast of the Northern Territory] to live with the father’s parents. Mr and Mrs [L] have been involved with [T’s] care from an early stage.
6.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…finish his education. Later he completed a building apprenticeship at [a small town east of Darwin]. The parties resumed their relationship at [this small town east of Darwin] in early 2000. They have lived together at [the island off the north coast of the Northern Territory], the community at X] and an outstation 15 kilometres from [X].
7.It seems that for extended periods during that time, [the father’s parents] 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.…
…
8.The parties finally separated in early 2005. In the preceding years, they had lived both at [the outstation outside X], with the mother’s family and at [the small town east of Darwin], with the father’s family. Thereafter, the mother, with [T] and [S], went to live at [the community at X]. The father remained in [the small town east of Darwin] and later went to [a remote town], a community in [north east Northern Territory]. .
9.During this period, it is the father and his parents’ position that the children were mainly being looked after by the mother’s cousin, [Ms 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 [the community at X] and picked up [S], leaving [T] behind there because he apparently told them he did not wish to leave. The removal of [S] was not discussed with the mother. It is the father’s position that he and his family were called to [the area] by [Ms L M].
10.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 [the community at X]. The father indicated, in his formal legal response filed with the court, that he wanted both children to live with him at [the remote town].
On 27 February 2006, the Court ordered that the father return S to the mother and that the children then spend from then until 3 May with the mother, from 4 May to 4 July with the father, and again with the mother from 5 July until the trial date, which was fixed to commence 24 August 2006. A family report was ordered.
The father’s father, Mr L Senior:
12.…is the oldest man of [his 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 [the clan’s language], which in turn will enable them to know their ancestral connection to their paternal land in the [their area].
…
14.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 [Mr R P]. She and [Mr R 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.
15.The family report in this case was prepared by…an experienced social worker and family consultant. She visited both [the community at X] and [the remote town], at times when the children were in the care of each of their parents respectively. In her report, [the family consultant] recommended that [T] and [S] should live with their father in [north east Northern Territory], provided they were able to have an opportunity to spend generous time with their mother in [X].…
After setting out these matters, Brown FM discussed the features of the Aboriginal view of family and social life as a collectivist one. He referred to the 2005 Family Law Act amendments that commenced in July 2006, in so far as they made mention of Aboriginal and Torres Strait Islander people. He then said:
24.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.
In the course of his deliberations, Brown FM addressed some of the historical causes of the differences in Aboriginal cultures and the need to refrain from making value judgments as to the merits of differing cultures. He remarked:
35.… 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.
36.However for [T] and [S], as they mature, an ability to speak [their father’s language]; to know the ceremonies connected with land in and around the [area of the clan]; 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.…
Brown FM then stated the task ahead of him as he saw it:
38.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.
39.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 [the community at X] and [north east Northern Territory].
40.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…(emphasis added)
In the context of recognition that many others in the communities of each of the parents were closely interested in the outcome, Brown FM remarked on the absence of evidence from persons he thought might have offered assistance to the court. He said:
55.… 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.
56.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 [the remote town] than I was given in respect of the community at [X].
Brown FM then recorded his impression that the children have been raised in a collectivist manner. After quoting from an academic paper, he said:
59.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.
60.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.…
Brown FM then addressed the evidence and the issues it raised.
In the course of the discussion, findings which likely were of significance to the ultimate result were made:
102.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 [the community at X]. 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 “[the father’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.
…
104.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].
…
131.…However, [the family consultant’s] view was that the contrast between the two environments, where the children had been living, was “striking”.
…
137.[The family consultant] reiterated, in her evidence, that she was well aware that the change of circumstances she advocated for the children was not a minor thing for them emotionally and she was certainly not advocating the change because the children would be merely better off materially at [the remote town]. Rather, what she believed would serve the children better in future was if they were living in an environment where there was a focus on things “happening” around and for the children. It is, I think, the tenor of her evidence that she did not perceive this as occurring, or likely to occur, at [the community at X].
Following the discussion of the evidence, Brown FM reviewed at length the provisions of Part VII of the Family Law Act and then moved to the s 60CC considerations. Significantly he said:
173.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 [the father’s] 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.
174.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.
…
176.… 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.
…
178.[The family consultant] 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 [the family consultant] 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 [father’s family’s] home is an environment with which the children are very familiar and which is culturally appropriate for them. [The family consultant] 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.
…
181.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 [north east Northern Territory] and have an opportunity to spend as much time as possible with their mother and her family in the [area of X].

For these reasons I would allow the appeal and make the orders referred to above.

I certify that the preceding One Hundred and Fifty Five (155) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate:

Date: 4 May 2007

[2007] FamCA 396

4 May 2007

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Expert Evidence

Natural Justice

Procedural Fairness