M and L (Aboriginal Culture) - [2007] FamCA 396

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FamCA 396
Decision Date: 4 May 2007

CaseChat Overview and Summary

This matter concerned parenting arrangements for two children, T and S, involving their mother and father. The court, presided over by Brown FM, was tasked with determining the best interests of the children, considering evidence presented by both parents and a family consultant. The proceedings highlighted the differing perspectives on the children's upbringing and the cultural contexts of their respective communities.

The central legal issue before the court was to determine the most appropriate living arrangements for the children, T and S, in accordance with the principles of the *Family Law Act 1975* (Cth). This involved assessing the evidence presented regarding the parents' capacities, the children's welfare, and the cultural environments in which they had been raised and might be raised in the future. The court was required to weigh the allegations made by each parent against the other, while also considering the broader community influences on the children's development.

Brown FM's reasoning indicated that the case did not turn on the credibility of the parties, who were found to be generally open and honest. Instead, the court focused on the evidence concerning the children's upbringing within a collectivist framework and the potential benefits of different environments. The mother acknowledged the father as a "good father" and spoke positively of his parents' traditional values, while also expressing concerns about his alcohol and marijuana use. The court considered the family consultant's view that a move to the father's community at [the remote town] would provide an environment more focused on the children's development, despite the significant emotional adjustment required.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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