MCLEAN & STEPHENS
[2014] FCCA 3130
•10 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCLEAN & STEPHENS | [2014] FCCA 3130 |
| Catchwords: FAMILY LAW – Parenting – spend time with arrangements – application by paternal grandmother. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(2A), 60H, 61DA, 65DAA, 65DAA(5), 69ZN, 69ZX(3) |
| Re F Litigants in Person Guidelines (2001) FLC 93-072 Aldridge & Keaton (2009) FLC 93-421 Johnson & Page [2007] FamCA 1235 M & M [1988] HCA 68 Other: Bringing them home: the ‘Stolen Children’ Report (1997) |
| Applicant: | MS MCLEAN |
| Respondent: | MS STEPHENS |
| File Number: | PAC 1213 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 10 October 2014 |
| Date of Last Submission: | 10 October 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 10 October 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Li of Bainbridge Legal |
| The Respondent appeared in person |
| Counsel for the Independent Children’s Lawyer: | Mr Sperling |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW Campbelltown Family Law |
ORDERS
By consent make Orders in accordance with the Terms of Settlement marked Exhibit ‘B’ attached hereto.
IT IS NOTED that order 3(b) and order 10, whilst expressed as being made by consent, has been the subject of judicial determination as regards the commencement of time (order 3(b)) and the time for telephone communication (order 10).
Ms McLean shall be entitled to attend at the grandparent/family day event at X’s school in each year and shall ensure that she advises Ms Stephens not less than 48 hours prior to her attendance that she will be so attending and further Ms McLean shall be entitled to attend such other events at X’s school to which parents or other caregivers are invited or permitted to attend subject to the consent of Ms Stephens.
In addition to time that X will spend with Ms McLean in accordance with the above orders, X shall also, commencing January 2016, spend a period of time with Ms McLean from 10am 20 January to 4pm 25 January each year.
The Director of Family Consultancy is requested to arrange for Mr O (who prepared the Report in these proceedings and who indicated his willingness to do so) to meet with X as soon as reasonably practicable, to explain to him in terms that he will likely understand the orders made by the Court and to answer any questions that X may have with respect to the orders and future arrangements.
Ms Stephens shall upon being advised of an appointment for X to attend upon Mr O, ensure that X is presented for that interview.
Ms Stephens shall be at liberty to provide to X’s psychologist Ms T and to X’s school counsellor the Reasons for Judgment delivered today.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
EXHIBIT “B”
That the mother Ms Stephens (“the Mother”) have sole parental responsibility for the child X born (omitted) 2007 (“X”).
X live with the Mother.
X spend time with his paternal grandmother Ms McLean (“the paternal grandmother”) as follows:
(a)From 10am on the first Saturday of each month until 5pm the following day Sunday.
(b)Commencing from February 2015 that such time be extended to 5pm Monday if the Monday is a school holiday period or a pupil free day.
(c)Such other times as agreement between the Mother and Paternal Grandmother in writing.
For the purpose of X passing into the care of the Paternal Grandmother and returning to the care of the Mother the Paternal Grandmother shall collect from and return X to the Mother’s residence in Sydney.
That during any changeover the Mother shall ensure that her partner Mr W is not present or within 50 metres of the place of changeover at the changeover time or half an hour before or after that time.
That during any changeover the Paternal Grandmother shall ensure that her partner is not present or within 50 metres of the place of changeover at the changeover time or half an hour before or after that time.
Each of the Mother and the Paternal Grandmother shall advise the other immediately of any significant illness or hospitalisation relating to X such notice to be given contemporaneous with the event and to include sufficient information and authority to enable both parties to be fully consulted and advised in any treatment decisions and to visit and stay with X if hospitalised.
In the event that X is unable to spend time with the Paternal Grandmother due to illness or injury then the Mother shall within three days provide a medical certificate for X to the Paternal Grandmother AND X shall have makeup time from 10am Saturday until 5pm Sunday (or 5pm Monday) on the following weekend unless otherwise agreed by both the Mother and the Paternal Grandmother in writing.
At all changeovers each of the Mother and Paternal Grandmother shall conduct themselves with such civility towards each other as is necessary to ensure that X is not exposed to inappropriate language or conflict and shall do all things in their power to ensure no other person acts in any contrary fashion.
X shall communicate with the Paternal Grandmother via telephone every Friday between 5.00pm and 5.15pm with the Paternal Grandmother to call the Mother’s telephone and the Mother to ensure that her phone is switched on and charged and do all things to ensure that X is able to talk freely and without interruption.
The Mother and Paternal Grandmother do all acts and things necessary to advise the other of their contact telephone number and any change in their residential address and shall notify the other within 48 hours of a change.
The Paternal Grandmother shall ensure that during any overnight time the Mother is informed where X is sleeping (and be advised in writing before any contact period if it is to be any address other than the Paternal Grandmothers house), that the Paternal Grandmother will be present during all overnight periods and that X will have his own bed during all periods that X spends with the Paternal Grandmother.
That the Mother authorise the school that X attends to provide to both the Mother and to the Paternal Grandmother: -
(a)Copies of all reports of X to both the Mother and the Paternal Grandmother;
(b)Copies of Newsletters and announcements of all school activities or other material pertaining to the education of X to both the Mother and the Paternal Grandmother,
(c)Copies of order form for school photographs,
AND THAT a copy of these orders shall be deemed as the Mothers’ authorisation to any school X attends.
If X changes school the Mother is to advise the Paternal Grandmother in writing no later than 7 days of the change of school including the details of the name and address of the new school and is to provide a copy of these orders to X’s new school within 7 days of X’s enrolment at any new school.
Notation:
(i)The Mother intends to continue to live in the Sydney Metropolitan Area. The Mother currently resides in aboriginal rental accommodation in (omitted).
IT IS NOTED that publication of this judgment under the pseudonym McLean & Stephens is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT PARRAMATTA |
PAC 1213 of 2013
| MS MCLEAN |
Applicant
And
| MS STEPHENS |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing applications with respect to future care arrangements for a young lad, X born (omitted) 2007. X is seven years of age and will, at his next birthday turn eight years of age.
The parties to the proceedings are X’s paternal grandmother, Ms McLean, (who is the Applicant) and X’s mother, Ms Stephens, who is the Respondent. Regrettably X’s father is deceased.
Material Considered
In dealing with the proceedings today I have read and considered each of the documents identified by the parties.
In the case of the Applicant paternal grandmother I have read and considered:
a)Her Amended Application filed 12 September 2014,
b)Her Affidavit of evidence, sworn or affirmed 30 July 2014 and filed 31 July 2014;
c)The Affidavit of her partner, Mr P, sworn or affirmed 30 July 2014, filed 31 July 2014.
In the case of the mother I have read and considered her Affidavit, sworn this morning and filed in Court today, together with a Report from a psychologist, Ms T, which has been marked as Exhibit X.
I have also had the benefit of a Case Outline document provided by the Independent Children’s Lawyer and a Family Report, Exhibit A, prepared by Mr O and dated 24 March 2014.
Process
These proceedings have been before the Court for some little time.
The matter was commenced by an Initiating Application filed 25 March 2013.
It is regrettable that the matter has taken the time that it has to reach a final hearing, but it has reached a hearing as promptly as the circumstances of the case and the resources of the Court have allowed.
It would be ideal for matters of this nature to be able to reach final hearing within the six months originally mandated and envisaged for the Court. However, the Court’s workload (in the case of my docket, comprising over 620 matters), means that such targets are simply “pie in the sky” and can never be realistically achieved. On occasions when matters are extraordinarily urgent they are accommodated and heard within a space of months, but it is at a cost and disadvantage to other litigants whose matters must yield, including this matter.
The proceedings have worked their way through the process as quickly as could be accommodated in light of the need for the parties to attend to a number of matters, such as Family Counselling and Family Dispute Resolution, the appointment and full instruction of an Independent Children’s Lawyer, preparation of a Family Report and the like.
The matter has been listed for hearing today as a one day matter. But for resolution of most issues with the significant input and assistance of the Independent Children’s Lawyer, the proceedings would not have been completed. That is not through any lack of desire on the part of the parties or any delay in the conduct of the proceedings, but purely as a consequence of pressures of workload before the Court which have eaten into the time available for the proceedings.
The matter did commence by way of contested hearing. After an address to Ms Stephens in satisfaction of the Re: F Litigants in Person Guidelines (2001) FLC 93-072, the Family Consultant was, with the consent of both parties and the Independent Children’s Lawyer, called to give evidence and his cross-examination was conducted and completed during what would have been the Court’s lunch adjournment, namely 1pm-2pm.
The matter was then adjourned with any entreaty to the parties to resume negotiations should they so desire. That invitation was taken up. The parties sought further time and have used it to very good advantage to resolve all but four issues. The matter has then resumed after 4pm and has proceeded to finality on the basis of submissions and this ex tempore judgment.
A document has been tendered by the parties, exhibit B, which reflects a suite of orders which are, by and large, agreed. Those orders will see Ms Stephens, invested with sole parental responsibility for X, X will continue to live with his mother and shall spend time with his paternal grandmother and through her, the paternal family, for the first weekend of each calendar month.
A number of other orders are included, extensive orders in fact, regarding issues relating to illness and injury and notification with respect thereto, changeovers, telephone communication and receipt of other information, particularly from X’s school.
The four issues which remain at large between the parties can be identified substantially by reference to exhibit B and as follow:
a)Paragraph 3b of exhibit B provides as follows:
Commencing from February 2015, such time [being alternate weekend time prescribed by paragraph 3a to be from 10 am Saturday until 5 pm Sunday] shall be extended to 5 pm Monday if the Monday is a school holiday period, or a pupil free day.
b)Clause 10 of exhibit B provides for telephone communication between X and his paternal grandmother between 5:00pm and 5:15pm on a Friday. The mother consents to that provision. The provision is agreed by Ms McLean but with the proviso of seeking an amendment so that the calls occur between 7:00pm and 7:15pm.
c)Ms McLean seeks an order which would allow and permit her to attend at X’s school for the purpose of being present at and participating in such events as parents are generally invited to attend at and participate in. That order is resisted in its totality by Ms Stephens. The Independent Children’s Lawyer has put submissions with regard to the issue and particularly discussed the pros and cons thereof and the possibility of a condition, if the Court is satisfied that an order of any type should be made in relation to attendance at such events, requiring that Ms McLean give Ms Stephens notice that she will be present. Those submissions are put on the basis that the relationship between Ms McLean and Ms Stephens is less than cordial.
d)Whether a school holiday block of time is to be ordered. Ms McLean seeks a block period of time (initially proposed for specified dates that included the mother’s birthday but for a period of one week in any event), to occur during each January. It is resisted by Ms Stephens, again, in its totality.
With the consent of the parties those issues are dealt with today and on the basis of the evidence as it stands, being the completed evidence of the Family Consultant and the evidence of the parties, albeit that the evidence of the parties is untested and their cross‑examination has not commenced. The parties have each made submissions with respect to their position, as has the Independent Children’s Lawyer.
Evidence
I do not propose to canvass the evidence of the parties at length. There is little to be gained from doing so at this point and particularly noting the substantial resolution of issues that has been arrived at between the parties.
I do propose however, to incorporate the chronology of events contained within the Independent Children’s Lawyer’s case outline, not in preference to that which is contained within the case outline document provided by the Applicant, but as it represents a mutualised chronology, rather than one which might be suggested, particularly by Ms Stephens, to favour one party’s version of evidence over the other. That chronology is thus incorporated.
DATE EVENT SOURCE (omitted) 1954 Date of Birth of Ms McLean
Applicant Paternal Grandmother ("PGM")
Date of Birth of Mr McLean (“Father”) deceased (omitted) 1985 Date of Birth of Ms Stephens
Respondent Mother (“Mother”)
PGM states that she became aware that the father had a drug problem from when he was 17 years old and was taking heroin up until the birth of X.
Mother states that the PGM was aware that the father was taking heroin after X was born
Aff M (25/3/13) par 5
Aff S (14/6/13) par 8
Approximately 2004 Mother and Father commence a relationship and reside with the extended paternal family
(Mother states this was for 6 months, PGM states this was on and off for 4 years)
Aff M par 4
Aff S par 5 & 10
2005 Mother states she resides at (omitted) Aff S par 5 & annex A 06 June 2006 Orders of the Local Court
12 month AVO made protecting the PGM from the father and an order that he not reside at the PGM's home – (noting different addresses on the AVO), being the father at (omitted) and the paternal grandmother at (omitted))
Aff S par 5 & annex B 24 January 2007 Mother alleges she is living with the Father at (omitted)
Mother and Father sign six month lease agreement for property at (omitted)
Aff S par 5 & annex C (omitted) 2007 Date of Birth of X now Stephens-McLean 2008 Mother states that she resides at (omitted) (Centrelink PAYG Payment summary) Aff S par 5 & annex D 2008 Mother alleges Father attends "We Help Ourselves" Rehabilitation Aff S par 8 04 August 2008 Mother alleges she receives letter from Father while he is in prison stating that when released he does not want to live back at home with his mother Aff S par 40 & annex E 2008 or 2009 Mother alleges that while the Father was holding the child, the PGF 'king hit' the father and it was reported to police. Aff S par 37 17 March 2009 Orders of the Court
Provisional AVO made protecting the Mother from the Father (noting the father's address is (omitted)).
Standard orders plus the defendant not to approach the protected person within 12 hours of consuming drugs or alcohol and not destroy, damage or interfere with property.
Aff S annex E 2009 Father in custody after terminated from Drug Court program.
Mother alleges her and Father’s relationship breaks down
Aff S par 8
Aff S par 11
Approximately January 2010 PGM alleges that the Mother and Father's relationship breaks down
PGM states that the father was residing with her and X would spend alternate weekends from Friday afternoon or Saturday morning until Sunday or Monday evening
Aff M par 7 June 2010 Father attends rehabilitation in (omitted) Aff S par 8 & 12 29 July 2010 Mr McLean (X’s father) dies of a drug overdose
(X then aged 3 years 2 months)
Aff M par 3
Aff S par 3
July 2010 – July 2012 PGM alleges that the arrangement for X to spend time with her on alternate weekends continue
Mother alleges after Mr McLean died X was seeing the paternal family once a month not once a fortnight
Aff M par 10
Aff S par 14
August 2010 PGM states that X stayed with her for five weeks.
Denied by the mother who says X spent a week and a half with the PGM
Aff M par 9
Aff S par 14
2011 Mother is pregnant with her second child to partner Mr W Aff S par 13 June 2011 PGM commences living with her partner, Mr P Aff M par 17 (omitted) 2011 Date of Birth of Y
(X’s half sibling)
child of Mother’s and Mr W
(X then aged 4 years 6 months)
Aff S par 44 20 April 2012 Mother alleges that Paternal grandfather tells her that the PGM allows the children to run around naked and that is why they might be sick
(X then aged 5 years exactly)
Aff S par 20 July 2012 PGM alleges mother tells her that Mother is not happy with child spending time with the PGM as X had stolen a toy care while in the care of the PGM
(X then aged 5 years 3 months)
Aff M par 10
Aff S par 15
17 July 2012 PGM alleges Mother tells her via text that X would not be coming to stay with her anymore and asks that she not contact her. Aff M par 11 & annex A 18 July 2102 Mother alleges she receives a message on Facebook from the paternal grandfather, Mr K stating that he is unhappy with the way the PGM handles the grandchildren. Aff S, par 19 and annex E 31 August 2012 Mother alleges Maternal grandmother Ms L sends a text message to PGM accusing M (X’s cousin 6 years of age) of sexual abuse.
Mother alleges Mr P (PGM's partner) sends an email to her (Mother) stating that they will talk to M about his behaviour and attend an 'effective parenting course.'
(X then aged 5 years 4 months)
Aff M par 12 & annex B August 2012 PGM alleges she receives a voicemail message on her answering machine from the maternal grandmother, "Ms L" stating that Ms Stephens had moved on and has another child and a new life. Aff M par 13 & annex C 25 December 2012 PGM alleges she telephones X and X says "Why do you want to keep me for Nana"
Disputed by the mother. Mother says that X said hello, spoke about what he got from Santa and then asked to speak to M
Aff M par 14
Aff S par 25
17 February 2013 PGM, PGF, E and M (X’s cousins) attend at the mother's house. The mother tells them to leave.
Mother says that the PGM and PGF made derogatory comments and she called the police
Aff M par 15
Aff S par 26
25 March 2013 Court Proceedings commenced
Initiating Application filed by PGM
06 May 2013 Parties attend
Child Dispute Conference
with Mr E
6 May 2013 Orders of the Court
Section 11F CDC
Appointment of Independent Children's Lawyer
Mother to file Response and Affidavit
Adjournment to 14 June 2013
14 June 2013 Mother files Response (dated 12 June 2013) and Affidavit in support (dated 12 June 2013) 14 June 2013 Orders of the Court
Adjourn to 4 July 2013 for interim hearing
4 July 2013 Orders of the Court
Inter alia
Final order re change of name to X
Pending further order
Mother has sole parental responsibility for the child
X live with the mother
Spend time with the paternal grandmother :
· For each of the mothers July August and September for the first Sunday of each mother from 10am until 1pm (being 7 July 4 August and 8 September) thereafter from 10am until 5pm on the first Sunday of each mother
Orders made re changeover
Section 13C (omitted) Family Relationships Centre referral
Section 62G family report
Adjourn to 28 April 2014
29 July 2013 Notice of Withdrawal of Mothers solicitors 7 July 2013 PGM alleges Mother without reasonable excuse refused to allow her to spend time with X. 4 August 2013 PGM alleges she spends time with X at Lollipops. 8 September 2013 PGM alleges mother without reasonable excuse refused to allow her to spend time with X. 6 October 2013 PGM alleges mother without reasonable excuse refused to allow her to spend time with X. 13 November 2013 Application – Contravention filed by PGM returnable 3 February 2014 3 February 2014 Orders of the Court
Finding of contravention of orders 4a and 4b made on 4 July 2013 for
7 July
8 September and
6 October 2013.
Orders for (omitted) Contact Service to be engaged for changeovers
Amend orders up to 28 April 2014 order
· 10am to 1pm on 9 and 23 February and 9 March 2014
· 10am to 5pm 23 March 6 and 19 April 2014
· thereafter first Sunday each month
S68M order of attendance on Independent Children's Lawyer on 6 February 2014.
Ms Stephens contact (omitted) re referral to Brighter Futures
4 March 2014 Orders of the Court
Re issue of subpoena
13 March 2014 Parties attend on Family Consultant 26 March 2014 Orders of the Court (in chambers)
Release of the Family report
28 April 2014 Orders of the Court
Section 13C FDR through legal aid
Adjourn to 18 June 2014
29 May 2014 Parties attend Family Dispute Resolution 18 June 2014 Orders of the Court
By consent telephone communication every Friday between 5pm and 5.15oom
Authorities re Ms T and paediatrician Dr M for documents to be obtained
Orders and Directions for hearing.
1 October 2014 Parties attend Family Dispute Resolution 10 October 2014 Matter listed for hearing.
I have otherwise considered all of the evidence that is presently before the Court, tested or untested, and will proceed to deal with the matter having considered all of that evidence. I do not propose to recite it in any detail and I propose to turn shortly to the legislative pathway and to refer to relevant portions of the evidence and submissions made by the parties and Independent Children’s Lawyer in considering that pathway. That is not to suggest that the evidence in its totality has not been addressed or considered, but purely to avoid its complete recitation. Rest assured all of the evidence has been considered.
I am also conscious that the majority of orders to be made are made by consent and thus, as regards those orders, the Court is not obliged to consider all aspects of the legislative pathway. To the extent that this is permitted by section 60CC(5) of the Family Law Act 1975 I propose to take that course.
The orders that the parties have agreed to are sensible, appropriate and in accordance with the evidence as it stands, particularly that of the Family Consultant, Mr O. However, as issues remain in dispute the legislative pathway must be considered in its totality at least with respect to those issues in dispute and I thus turn to it now.
Legislative Pathway
The Court is reminded by section 60CA that in all that is done, the child’s best interests are the paramount consideration.
Objects and principles
I must commence with the objects and principles set out in section 60B and which I incorporate herein.
Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
The objects and principles do not form part of the substantive law but inform the Court as to how those substantive provisions might be applied to the evidence and the outcome which the Court should endeavour to achieve.
The Court is required to ensure that the best interests of children are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests, that children are protected from physical and psychological harm through exposure to certain behaviours, and to ensure that children receive adequate and proper parenting and that parents fulfil their duties and meet their responsibilities.
At that point it must be observed that the objects and principles, to the extent that they refer in each and every provision to “parents”, extend to and include the parties to these proceedings, even though one parent is deceased and the Applicant is not a parent.
The full court has been clear that whilst the primary considerations, particularly the assessment of a meaningful relationship in section 60CC(2), apply only to parents (as discussed in Burton &Churchin & Anor [2013] FamCAFC 180 or as deemed by section 60H), the Court is authorised to apply the balance of provisions (see for example, Aldridge & Keaton (2009) FLC 93-421) more broadly and so as to assess all parties, whether a parent or not.
The objects and principles would suggest that, save it being demonstrated to be contrary to the child’s best interests, that young X should have the benefit of an ongoing relationship with and involvement in each of his extended families. The evidence of Mr O spoke to that issue to some extent. Mr O opined that X needs a sense of identity, that he is aware of his biological origins and even though his father has passed, that he has an established relationship and connection with his paternal grandmother and through her, paternal family, such that it would be potentially disadvantageous to him for that relationship to be curtailed or unnecessarily curtailed.
Mr O’s evidence was to the effect:
He’ll be curious. You can’t deny that he won’t be curious. Children sometimes hold a parent responsible if their curiosity is not permitted to be met. It may be detrimental to the child, detrimental to the child’s relationship with his mother and detrimental to the child’s relationship with his grandmother.
Mr O was apprised of more recent developments and the evidence that had been filed since he had held appointments with the parties and X. Having considered that evidence he was somewhat more circumspect regarding, for example, block periods of time. His opinion, which I accept, was that at this point in time there would be some real dangers apprehended through such an extension.
X has been, for some little time spending regular monthly periods with his grandmother, but on a non‑overnight basis. Accordingly, such a step as an extension to block periods was met with some reservation on the part of Mr O. He in fact indicated that:
Given what I’ve read today and the mother is adamant that such time shouldn’t go ahead, I would need to consider the position of putting X – the position it would put X in and the difficulties and stresses that might create for him.
That evidence arises in the context of the mother’s evidence and in particular exhibit X, the Report from Ms T and a Report prepared by a school counsellor who has interacted with X more recently. Both of these Reports suggest, to varying degrees, that there is some difficulty with X’s present behaviour and behaviour management.
That is, in no way, an attempt to stereotype young X. He is having some difficulties as many children do. His difficulties may be responsive to a number of stressors in his life and the causes need not be determined by me today. However, to the extent that this evidence is before the Court there are two observations which must be made.
Firstly, the Report prepared by Ms T which suggests a causal connection between X’s present behaviours or acting out and his relationship with his paternal grandmother is prepared in a vacuum absent the paternal grandmother. Accordingly, to the extent that there are complaints or criticisms, or suggested difficulties in that relationship I cannot place any weight upon those opinions. It is an opinion that is offered on the basis of that which is reported, albeit including by X, but without any opportunity for Ms McLean to be involved or participate.
Secondly, the school counsellor’s Report while it suggests some concerns with respect to X’s behaviour at present, it does not draw any causal connection. It is however, concerning that X’s behaviour is on the evidence, deteriorating.
I am asked by Ms Stephens to accept a causal connection between the resumption of time between X and his grandmother and those behaviours. Certainly as a matter of chronology, those behaviours seem to have come about, or at least been exacerbated, since time resumed. However, the causal connection is not one and the same as the chronological coincidence of the behaviours.
Certainly the resumption of the relationship may have impacted X’s behaviour but that may occur in a number of ways and on a number of levels. It may be, as is suggested by Ms Stephens, responsive to the relationship, things that occur during those periods or some other connection therewith. It may also be responsive to other stressors relating to the resumption of that relationship such as the stress that clearly it occasions to Ms Stephens.
It must be remembered that the relationship between Ms Stephens and X’s father, as it is described by Ms Stephens and to some extent at least conceded in Ms McLean’s evidence, was far from pleasant. There certainly were significant issues with respect to drug use by the father. Sadly that was the cause of his passing. There are also significant issues raised with respect to family violence.
Whilst one might be invited to be critical of Ms Stephens for having an oppositional attitude to X’s relationship with his paternal family, being over anxious and concerned perhaps to an exaggerated extent, this must be tempered by the difficulties Ms Stephens endured in her relationship with X’s father. To an objective observer, those reactions are in response to Ms Stephens’ lived reality of her relationship with Mr McLean and Mr McLean’s extended family.
That is not to impute poor behaviour on the part of Ms McLean. However, to borrow from the tortious field “one takes one’s victim as one finds them”. It is not the Court’s role to investigate beyond the genuineness of the reaction of Ms Stephens in these circumstances and I accept that her reactions, her feelings and her responses are genuine. They may be potentially damaging to X if they continue unabated and without address but they have some justification in her lived experience.
I must also be conscious (and it is not said to be in any way pejorative of Ms McLean) nor to open still raw wounds for either party, that Ms Stephens is X’s only remaining parent. She is his primary parent and has been at all times. X lives with his mum and will continue to live with her in accordance with the orders made by consent. The welfare and ability of Ms Stephens to meet X’s needs physically, financially, practically and emotionally are important and must be borne in mind.
The Court is also concerned and must be so concerned that the primary consideration regarding the benefit of X’s meaningful relationship is focussed solely and singularly upon Ms Stephens. The Court should not broker or countenance any interference therewith. That would be detrimental to Ms Stephens as X’s carer and to X directly or indirectly. To do so could not be in X’s best interests.
Notwithstanding those issues, section 60B(2) the principles, establish a number of rights for X. They are not absolute. They are rights that are all subject to the Court being satisfied that those rights and their practice are not contrary to the child’s best interests. But, subject to that finding, X has a right to know and be cared for by both parents and other people and to spend time on a regular basis and communicate with both parents and other people significant to his care and the like.
The totality of the International Convention of the Rights of the Child is incorporated as objects and principles by section 60B(4). Again, the expression “parent” for the purpose “at least” of the objects and principles extends to a consideration of people who are not biological, adoptive or deemed parents, i.e. Ms McLean.
What is clear from the evidence particularly that of Mr O, the only evidence that has been tested and to a large extent unchallenged, is that X does know who his paternal family is, is aware of that biological heritage and has expressed some views about it.
The interviews were in March 2014. Ms Stephens suggests, whether as a consequence of subsequent events or otherwise, that X’s views may have changed. However, it remains that in March 2014 X expressed to Mr O a clear knowledge and understanding of Ms McLean’s role in his life. X also expressed some views regarding his perceived basis for practice of that relationship in the future.
The objects and principles also importantly, at section 60B(3) include this young man’s right to enjoy his Aboriginal and Torres Strait Islander culture, so as to maintain a connection with that culture, to have the support, opportunity and encouragement necessary to explore his culture and to develop a positive appreciation of it. Young X is an Aboriginal child.
Ms Stephens identifies as Aboriginal but, for reasons that are explicable and which I will touch upon shortly, has a less than perfect knowledge of her Aboriginal ancestry.
Ms Stephens is from the (omitted) and (omitted) peoples of Northern New South Wales and the Australian Capital Territory, respectively. Ms Stephens indicated to the Court her knowledge and appreciation of those cultures. Whilst her evidence is not substantial, it is clear that she is proud of her culture and has, in her childhood, been precluded to a large extent from fully practicing and participating in that culture. That is not something that will occur through Ms Stephens’ parenting for X.
With some pride Ms Stephens has indicated that young X is attending a school, (omitted) Public School, which has a strong, if not predominant or total Aboriginal enrolment. The school is engaged in a number of cultural events and activities and they are all to the benefit of X and the other students, allowing them to draw great strength and resilience from culture and cultural practice.
They are matters of some real importance and which I will touch upon in discussing the legislative pathway. It must be remembered in all that the Court does (and as the legislation requires), that X is a young Aboriginal man.
Parental responsibility
I must turn to section 61DA of the Act and determine whether the presumption of equal shared parental responsibility applies. It does not apply and it cannot apply in this case as the presumption applies only between parents. Thus, I am not obliged to consider equal or substantial and significant time (by reference to section 65DAA) even with an expansion of the term “parent”.
The majority of arrangements for X’s time with his grandmother are agreed between the parties. The issues which remain to be determined are those set out above. The parties agree that an order for sole parental responsibility will be made in favour of Ms Stephens and it will be with the consent of the parties and the Independent Children’s Lawyer (and consistent with the legislation) that an order for sole parental responsibility will be made.
Best interests
I must consider section 60CC and I incorporate therein section 65DAA(5) dealing with reasonable practicality.
I commence with the primary considerations being:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The latter is prioritised over the former by subsection 2A.
On the evidence as it stands, accepting that it is untested, I am not satisfied and could not be satisfied subject to further exploration if it had been sought to be prosecuted by either party, that the child is, or would be exposed to an unacceptable risk within the context of Johnson & Page [2007] FamCA 1235, M & M [1988] HCA 68, B & B (1993) FLC 92-357 and like authorities.
Certainly there are allegations suggesting that X has been exposed to certain behaviours, including sexualised behaviours by other children within Ms McLean’s household, and incidents whereby it is suggested the child has, in a broad sense, been neglected, including through not being required to wear a seatbelt in accordance with state law, or sustaining injuries whether through lack of supervision, or deliberate action.
I need not determine whether those matters are found proven or otherwise. They are not pressed and to the extent that the majority of orders are made by consent I can infer that the parties accept that the allegations and concerns as expressed are adequately and appropriately dealt with by those orders and I do accept that it is so.
Thus I am left with the issue of X’s meaningful relationships. The primary consideration, as the full court has been clear, applies only as between biological and adoptive parents, (presumably also extending to deemed parents by reference to section 60H). Accordingly, the only meaningful relationship that the Court is required to consider as part of the primary consideration is the relationship between X and Ms Stephens. It must be preserved and protected.
Meaningful relationships between X and others are also relevant but as additional considerations. As Carmody J had observed in Dylan & Dylan [2007] FamCA 842, the additional considerations are not subservient or inferior to the primary considerations. They inform the primary considerations and may singularly or in combination be, in some circumstances, of greater important than the primary considerations. I now turn to them.
Views
Young X’s views are expressed in conflicting portions of the evidence. In the Report of Ms T the psychologist and exhibit X it is suggested that X has indicated to her as recently as August of this year that he is frightened about going to the grandmother’s home as cousins, M and E, have, “touched his rude parts”. Clearly, the evidence suggested that if this has occurred that it occurred quite some time ago. Ms T’s indicates that X has expressed to her that he does not wish to attend.
There are some issues with respect to the evidence of Ms T. This is not a criticism of that which she has attended to with young X. But in the context of her evidence and it’s acceptance, I am concerned principally that Ms McLean is not involved in any appointments but views are expressed as to the relationship between her and X.
To the extent that there are concerns raised, particularly in Mr O’s material, I need not determine or find that anything reported to be expressed by X is either reactive to concerns, stressors and perceptions of his or alternatively created in his mind by others and not genuinely expressed by him.
In turning to Mr O’s evidence, X’s views are stated clearly at paragraph 38. Therein it is suggested that X had stated to Mr O:
I do want to go to Ms McLean and can you tell the Judge Man that. I love Ms McLean and she takes me everywhere. And I want to play with M and play with his PlayStation and stay overnight at Ms McLean’s, but mum says she will be alone. Can you tell Ms McLean, I want to stay over for five days and can you tell the Judge Man.
As a consequence of all that was obtained from the parties and others interviewed, as well as from X, Mr O had recommended and confirmed his recommendation as to weekend time being that there should be an increase from that presently practiced, i.e. day only time once a month, so as to:
Progressively increase over time from current arrangements to overnight on a Saturday or Friday night and to overnights on the weekends [see paragraph 46].
It was recommended by Mr O (at paragraph 47) that X spend at least one week of the Christmas holidays with Ms McLean if agreed, or if not agreed one week in January. However, during cross‑examination Mr O was somewhat more guarded in his optimism that this would meet X’s needs and having regard to his evidence as above.
It is clear that no matter what the basis or what causal connection there is, since the early part of this year and certainly since the Report interviews in March of this year, that X’s behavioural issues at school have become worse. They are matters of concern, not only to his mother, but to the Court. Whatever the basis for that deterioration, it must be factored in to this Court’s decision making.
Mr O suggests that these behaviours may be reflective of a variety of stressors, including his full awareness of his mother’s attitude towards Ms McLean and X’s relationship with her and the broader paternal family. There may well be other reasons. It could be a combination of various reasons, but it is a reality for this young lad and his best interests and welfare are that which is paramount.
To the extent that they are in conflict, the interests of grownups must yield. The views that are expressed by X to Mr O give me some confidence that certainly the orders that are made by consent are abundantly appropriate. Those views also give me some confidence that perhaps not now, but in the foreseeable future, some increased time, including block periods, might occur.
It also speaks to the issue as to when overnight periods might extend to 5pm on Monday if it is a pupil free day or school holiday. The issue in that regard is whether that is to commence from January 2015 or February 2015. The difference in reality is that if it commences in January there will be a block period for the first weekend of January from Friday to Monday whereas if it commences in February, as the Independent Children’s Lawyer has accurately calculated, it is unlikely to occur before April 2014, giving a greater lead in period not only for X to adjust to the overnights, (which will commence forthwith and as to which I have little concern he will adjust without any real difficulty at all), but more importantly for Ms Stephens to adjust.
The nature of the child’s relationship with each parent and other persons
Clearly, X’s primary relationship of importance is with his mother. He also has important relationships in the mother’s household. Her partner, I have no doubt at all from Ms Stephens’ evidence, is perceived by young X as his “father”. That is in no way pejorative of the memory of his biological father, but Mr W, Ms Stephens’ partner, has filled the role of father to this young child and to X’s sister for some years.
Whilst I am conscious of the Full Court’s authoritative determinations of those who are included within the descriptor of “parent” within the Act, I am conscious that the child’s perception, whom he considers and looks up to as a father, is Mr W. I need not and do not cavil with the Full Court. I simply record X’s perception, perhaps driven by his desire to have a living father, that Mr W, the father of X’s sibling, is his father. One might use the American terminology, “emotional parent” to embrace and describe X’s perception of Mr W as his father. X is clearly aware that he also has his biological father, albeit that he will no longer meet or interact with him.
X also has a good relationship with Ms McLean. I am satisfied of that based on the evidence of Mr O, being the only tested evidence. It is somewhat in issue, however, clearly young X has spent time, both prior to his father’s demise and otherwise, with a variety of extended family members and he would appear to have a perfectly good and appropriate grandparent/grandson relationship with Ms McLean. So much is clear from the observations of Mr O and X’s comments to Mr O.
Within the paternal family there are other relationships of importance. Notwithstanding the issues raised, particularly in Ms T's Report, X clearly has a relationship with and has some affection for his cousin, M and no doubt others, including Ms McLean’s partner. They are all important relationships, which will be met through the orders made by consent.
To the extent that there is controversy in relation to the block period and the commencement of extensions to overnight time, I am satisfied that these strong relationships would provide some support for those extensions occurring, not necessarily quickly, but occurring. This is perhaps a case, particularly in light of the genuine and explicable position of Ms Stephens, where to hasten slowly would be more advantageous.
That is not to suggest that there is not an imperative upon Ms Stephens as a caring, loving parent seized with the responsibility for X, to take some action to obtain assistance and support in becoming more comfortable with and accepting the importance of that relationship, as to not do so would inflict injury upon X into the future.
X clearly desires the relationship with his grandmother, based upon Mr O’s evidence. Although Ms T's casts some doubt upon it, I am not satisfied that her evidence should be preferred to that of Mr O. If X is to practice the relationship as he now will on an overnight basis, albeit once a month (and with the consent of both parties), it will need active support, not grudging support or tolerance.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spend time or communicate with the child
Including Ms McLean within that descriptor, one could not criticise her for failing to participate. She has participated whenever she has been able to and whenever she has been permitted to.
One of the issues in dispute is her participation and attendance at school events. Ms Stephens indicates her opposition and suggests that the event that would be of primary importance and interest is a grandparent or family day once per year. There are clearly many other events at the school to which parents and other care givers may be invited to attend.
There is potentially some benefit in Ms McLean’s attendance and absent the difficulties in the relationship between the grownups, there would be great benefit. However, this young lad is already experiencing some difficulties at school to the point of suspensions, (even though he is still in infants). Both Ms Stephens and Ms McLean being present at events at the same time would be stressful for them, perhaps more so one than the other, and most assuredly stressful for X. Some limitations upon attendance are called for. It is regrettable that this is so.
It would be wonderful if the Court could deal with family circumstances whereby all grownups were on the same page or at least in the same chapter. Unfortunately in this case and regrettably the majority of cases before the Court, the grownups involved in disputes, are rarely in the same shelf of the library, let alone the same book and moving them towards being on the same page is simply an ideal which is fanciful.
I am satisfied that there must be a balance between Ms Stephens’ position, as the parent with sole parental responsibility and otherwise responsible for X’s education, X’s comfort within that environment, and the benefit that he would receive from all of the people who love him being involved in events that are important to him.
One can readily foresee the day when X may be receiving some award for sport or academic achievement or participating in some presentation for parents and other caregivers at an assembly. For him to be deprived of the opportunity of looking up and being able to see various people who love him and care for him would be tragic for him. Sadly, in light of how things presently stand between the grownups, there must be some limit.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
There is no legal or moral obligation upon Ms McLean to provide financially for X, however, she does. That is, curiously, the subject of some criticism in the evidence, whereby in the past things have been bought for X, which are perceived as expensive and thus Ms McLean is criticised.
I can understand why that may be so. Ms Stephens is not a person of wealth and accordingly she may well perceive it as an offence or an affront to her as a parent or to her parenting, that she cannot provide those things. However, it is a simple reality that she cannot.
From everything that I have read in the evidence, X is not a materialistic child. His love is not going to be bought and his allegiance will not change simply because one person can provide things for him. Certainly, if it is a bone of contention it may cause disputes between grownups. It may, in fact, cause X to become fully aware of his ability to manipulate that situation and obtain advantage.
But it should not be a criticism that love is lavished upon him through such financial largess and gifts. I do accept, appreciate and understand why that may be considered hurtful from Ms Stephens’ perspective.
The likely effect of change in circumstances, including separation from either parent, other children or other persons
That is balanced on each side. A separation of X from his mother, his father – at least emotional father – and sister will occur each and every time he attends upon Ms McLean.
Similarly, the limited time that Ms McLean will practice with X means there will be significant separations between X and her and between X and the paternal family.
There are still causes of real friction and concern in light of the history of the relationship between Ms Stephens and X’s father. Time has not to this point healed those wounds and it may never. One would hope that henceforth both parties would search their souls to seek to find some resolution.
However, as regards the effect of change, I am satisfied it would be beneficial in the long term for X to be able to spend some block period of time with paternal family members especially bearing in mind it would be once per year.
I am not satisfied that within the next 12 months or so that blocks could be practical or feasible or to X’s benefit. It would simply cause too much angst, not so much for X, but for others. This would be particularly his mother, whom again, as the person with sole parental responsibility and who is the only parent surviving with whom X has or could maintain a meaningful relationship, I must be protective of.
That similarly would speak in favour of the proposal of the Independent Children’s Lawyer and as agreed to by Ms Stephens as regards to the commencement of clause 3B.
Practical difficulty and expense
I incorporate herein section 65DAA(5).
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(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
These parties do not live any great distance apart from each other, although that may change in the not too distant future. However, on the present basis everything is logistically possible.
Reasonable practicality extends well beyond logistical issues. It also addresses matters which one would expect to be the substratum of a successful shared care arrangement, such as a capacity to implement arrangements and a capacity to communicate and resolve difficulties. Sadly, the capacity to implement significant time is poor. The ability of the parties to communicate and resolve difficulties is equally poor.
The impact of the arrangement on X has already been addressed.
The capacity of each parent and other persons to provide for the child’s needs
Each of the parties is capable of meeting X’s needs practically and emotionally.
From the perspective of Ms Stephens and with the greatest of respect to her, the trauma that she has suffered from her relationship with X’s father and the attack upon her which she perceives these proceedings to be, coupled with the ongoing arrangements for X’s time with his paternal family impact upon her capacity to meet X’s emotional needs.
At least in March 2014 when X saw Mr O, X was clear in expressing not only a desire to spend time with Ms McLean but his love for her.
To the extent that any reassurance the Court can give to Ms Stephens may have any impact on her at all, she should rest well and truly assured that X has one mother, will only ever have one mother and that he loves her a great deal and would not cope without her. He will do best in life if she is emotionally well and available to him.
That perhaps suggests that even though there has been assistance and intervention through Brighter Futures and the like, that for Ms Stephens finding a resolution, a peace within herself to accept and put behind her the traumatic events, which I wholeheartedly accept she has experienced at the hands of X’s father and she perceives continue through paternal family even though not actively prosecuted as such, would benefit not only her health and happiness in life, but X’s.
As Mr O described, X needs to know that he has permission to have the various relationships that potentially benefit him significantly in life. That includes, as difficult as it may be for Ms Stephens to accept wholly at this point, the relationship between X and his paternal family.
The potential disadvantage for X, a young Aboriginal boy, if he were cut off from knowledge of one half of his genetic history is perhaps amply demonstrated through the varied transcripts and reports which section 69ZX(3) permit the Court to take into account and make use of and which are specifically addressed in a note thereto as being of particular and specific assistance to Aboriginal and Torres Strait Islander parties.
One need go no further than the Bringing them home: the ‘Stolen Children’ Report (1997) to understand the trauma to children of removal from parents in the Stolen Generation.
X has already been removed from his father forever. His father will be kept alive in his mind, perhaps in a more idealised fashion than circumstances as they are portrayed in the evidence would justify, through paternal family. But there is nothing to be gained by sharing stark realities with X at this time.
If X grows up absent the knowledge of one half of who he is, he will be exposed to the very disadvantages that the Stolen Generations experienced in the past and experience in the present and regrettably, and in all probability, in the future.
I accept wholeheartedly that it is painful and difficult for Ms Stephens to have to deal with these issues and to have to deal with Ms McLean and the paternal family, but as a parent, as a wonderful parent, Ms Stephens needs to find that resolution. Because the consequence for X of his being cut off from one half of who he is, i.e. the McLean family is potentially catastrophic. That is so not only for X, in impacting his sense of identity, who he is, where he came from, knowing warts and all in due course and in an age appropriate fashion, who his father was, how he came to pass and what things were like in his early years (which hopefully he does not recall). That is all important to X’s sense of self and self-identity.
X may otherwise follow the regrettable path of many of his forebears if he is denied that opportunity. The consequence of that is, as made clear from the Bringing them home Report, Royal Commissions into Deaths in Custody and the like, that he will be more likely to join the ranks of generational Aboriginal disadvantage including:
a)A lower mortality rate;
b)A higher likelihood of involvement with drugs or alcohol – something which none of these grownups would want X to experiment with in light of the catastrophic effect it has had upon his life already through the death of his father;
c)Less likely of achieving educationally. The behavioural problems X is already exhibiting are problematic and will remain so unless resolution to these problems can be found. I am satisfied on the evidence as it stands that resolution can only be found by the grownups reaching a resolution within themselves and attempting to reach a resolution with each other so that they can at least tolerate each other and each other’s involvement in X’s life; and
d)Overrepresentation in systems, including child welfare and/or adult incarceration.
Sadly, on a statistical basis X is already significantly disadvantaged and more prone to find himself coming to the attention of those systems for whatever reason. One would hope it can be avoided for X especially as I wholeheartedly accept that Ms Stephens would have some terror in even contemplating that such disadvantages might befall her son. X deserves better. Every Aboriginal child does. The wonderful parenting that X receives from his mother needs to have the final piece of its puzzle placed – a resolution and a coming to terms by Ms Stephens with the reality that for X his father has passed.
X will continue in a new family structure and it will be relatively uninterrupted, but it will include his continuing association with and knowledge of his paternal family.
Maturity, sex, lifestyle and background
This is a young Aboriginal lad. Many aspects of his life to date, his brief seven years, one would not wish on any child.
X has the great benefit of having a mother who loves him and cares for him very well. He also has the great benefit of having many other people including his grandmother who loves him and cares for him and who wants to be a part of his life. It is for the grownups to work out how that can work and so that X can have permission for that to be so and achieve the advantage.
If things continue as they are, those advantages will be lost. Indeed, the disadvantages I have referred to will, in all probability, become more likely. For a young lad of his age to have experienced the family violence, drug and alcohol use and passing of a parent in seven short years is tragic. One would hope the grownups can find a way to avoid future tragedy and without a Court determination of issues.
Aboriginality
Clearly young X is an Aboriginal child. He clearly identifies with his Aboriginal heritage and culture and he should. It is the oldest living culture on the face of this planet. He has much to be proud of. Indeed, his pride should extend to the fact that his culture still exists in 2014, notwithstanding repeated and deliberate attempts to ensure that it was not so. He takes great strength from his culture as does his mother. He goes to a school that is predominantly, if not completely, Aboriginal enrolled.
X engages in cultural practice and activities through his school, through his maternal family and importantly, with his mother. The rights that are created within the legislation consistent with international obligations provide to X a right to enjoy his culture and to enjoy his culture with people who share it. Culture is a lived and practiced experience not something read about in books once a year or during NAIDOC week. The impact of orders upon X’s right to culture must be considered.
There is nothing in the evidence that suggests in any way that Ms McLean is other than supportive of X’s aboriginality. Accordingly, there will be no impact of the time arrangements. I am conscious that the time periods that are provided, particularly those ordered by consent, will not substantially impact NAIDOC week (the first full week of July) nor Reconciliation Week (27 May-3 June). To the extent that it will or may, provision will made that in the event that the first weekend of any month corresponds with or falls during Reconciliation Week or NAIDOC week that time shall, for that month, instead occur on the second weekend of that month.
Accordingly, X will be able to be with this mother and maternal family – people who share his culture – to practice culture especially during those significant weeks. But he will practice his culture every day. It is his lived experience. Every day he wakes up Aboriginal. It is not something that happens once or twice a year.
There are not a lot of nationally recognised events of significance for Aboriginal people and events such as NAIDOC week and reconciliation week should be treated with the same significance as other days or periods of observance for those of faith such as, for example, cultural or religious festivals such as Hanukah, Easter, Ramadan or Diwali.
In relation to a block period, as would be apparent from the above, I am satisfied that 2015 is too soon. I am satisfied that a block period can and should occur in 2016 and thereafter. The period that was initially proposed would have included Ms Stephens birthday each year. That is an important date, not only for Ms Stephens but in cultural practice. It is the birthday of a close relative.
I am conscious that a block period should also not include what the majority community would refer to as Australia Day but which Ms Stephens would see as and share with this young lad as Survival or Invasion Day.
I do propose to order a block period slightly less than a week. That is on the basis that X had made clear to Mr O (albeit that there is now some issue as to whether his views have changed), that he would like a block period of five days. It will give him something not substantially greater than the weekends he would already be practising.
I propose to make an order for a period from 20 to 25 January in each year commencing 2016. That will not interfere with or impact upon X’s right to practice culture and specific important events such as his mother’s birthday and Survival/Invasion Day during that holiday period. It will allow him some brief period of more extended time with paternal family members, albeit once a year.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each parent
There is little to be gained from any criticism of attitude. I make clear that I do not wish Ms Stephens to leave this hearing believing that she is being criticised. She is not. To the extent that Ms Stephens holds strong feelings, indeed, potentially verging upon revulsion at times, with respect to members of her past partner’s family, I can accept that those feelings are genuine, forged from the trauma that she experienced, and that they are explicable.
However, there is a gulf between explicable and appropriate. There needs to be a change because, as indicated, X deserves the change to occur. His best interests require that he is able to experience different relationships, particularly as orders are made by consent which allow and permit it, at least for the weekend periods and he will not be able to get full benefit from those periods without changes in attitude.
There are criticisms made by Ms Stephens of Ms McLean’s attitude. Again, there is little to be gained from testing those criticisms. They will not assist in this determination and will do nothing to meet the objects and principles. However, they are perhaps equally valid, although addressed on the same basis – genuine and explicable, although they need to change.
Family violence
There are allegations of family violence suggested to involve X and to which X has been exposed. To the extent that allegations are raised in the present time, I do not accept them. To the extent that they are historical, clearly I accept them, particularly prior to the passing of X’s father there was very real and quite savage family violence. That violence has had a long lasting impact and probably a lifelong impact upon Ms Stephens.
Family violence orders
There are none.
Whether it is preferable to make the order that will least likely lead to the institution of future proceedings
Whilst I am satisfied that Mr O’s evidence was that he could not recommend block periods and that it would need to be dealt with in the future, I am satisfied that I can reasonably predict that after X has spent nearly 18 months of overnight weekend time with Ms McLean, albeit once a month, that a block period of five nights or so should be able to be “endured” by X (and I do not use that term to be offensive). As indicated, I accept that X can deal with that right now, but it is more important that Ms Stephens is able to endure it.
In relation to the extension of weekend time to include a Monday, I am satisfied and accept the appropriate submissions of the Independent Children’s Lawyer that perhaps a six month or so phasing in period of overnight time, to allow “the dust to settle”, to allow everybody to adjust, would be helpful and beneficial, and avoid future proceedings as well as being in X’s best interests.
In relation to the school events, I am satisfied that some involvement is preferable from X’s perspective. Future proceedings can best be avoided by attendance being somewhat limited and by ensuring that Ms McLean lets Ms Stephens know that she will be attending. The orders made by consent will ensure that Ms McLean is aware of the events. She will receive newsletters and the like and she can make her own arrangements with the school.
In relation to telephone communication, it is difficult to find any specific part of the evidence upon which to attach importance. Ms Stephens indicates that young X is in a stable, settled routine including with respect to homework, dinner and a relatively early bedtime. X is described as having investigations for health issues at present. He is clearly having some behavioural issues.
Anything that assists in providing stability and routine for X is important. Ms McLean indicates that the time proposed, 5pm to 5:15pm, is difficult in relation to her work arrangements. However, I am satisfied that Ms Stephens, her household and X’s routine should take precedence. That is not intended in any way to be insensitive or lacking empathy to Ms McLean’s position. It is simply that X requires and needs stability at this point in time and anything that would interrupt it on whatever basis would be disadvantageous to him..
I certify that the preceding one hundred and thirty six (136) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 9 March 2015
Key Legal Topics
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Civil Procedure
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Contract Law
Legal Concepts
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Consent
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Remedies
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Contract Formation
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