Moses and Barton
[2008] FamCA 590
•30 July 2008
FAMILY COURT OF AUSTRALIA
| MOSES & BARTON | [2008] FamCA 590 |
| FAMILY LAW – CHILDREN – With whom a child lives – cultural issues – Parenting orders – 10 year old child – Kupai Omasker cultural practice of giving and receiving children – child given to father and his deceased wife as a newborn baby – order for child to live with father in the Torres Strait and spend time regularly in the school holidays with the mother |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Moses |
| RESPONDENT: | Mr Barton |
| FILE NUMBER: | CSC | 685 | of | 2007 |
| DATE DELIVERED: | 30 July 2008 |
| PLACE DELIVERED: | Cairns |
| JUDGMENT OF: | Moore J |
| HEARING DATE: | 19, 22, 23 October 2007, 18 & 25 February and 21 & 22 July 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McPherson |
| SOLICITOR FOR THE APPLICANT: | Edna Cuthbertson & Co |
| COUNSEL FOR THE RESPONDENT: | Ms Willis |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Queensland |
| COUNSEL FOR THE INDEPENDENT CHILD’S LAWYER: | Ms Benson |
| SOLICITOR FOR THE INDEPENDENT CHILD’S LAWYER: | Lehmann Featherstone |
Orders
1.Ms Moses and Mr Barton are to have equal shared parental responsibility for the child born […] October 1997 [‘the child’] save that Mr Barton is to be solely responsible for determining the school she will attend for the remainder of her primary schooling and for her secondary schooling.
2.The child is to live with Mr Barton in the Torres Strait.
3.Until the child attends secondary schooling away from her father’s home she is to spend time with Ms Moses at all times agreed but not less than these periods:
(a)all of the Easter school holiday period;
(b)one half of the June/July school holiday period;
(c)all of the September/October school holiday period;
(d)four weeks of the Christmas school holiday period.
4.After the child attends secondary schooling away from her father’s home she is to spend time with Ms Moses at all times agreed but not less than these periods:
(a) one half of the Easter school holiday period each year;
(b) one half of the June/July school holiday period in each year;
(c) one half of the September/October school holiday period each year;
(d) one half of the Christmas School holiday period each year;
5.Unless otherwise agreed the half times specified in orders 3 and 4 are to be the first half in even numbered years and the second half in odd numbered years.
6.Until the child commences her secondary schooling away from her father’s home when the child travels to spend time with Ms Moses in accordance with Order 3:
(a)Ms Moses is to organise and pay for the child to travel to her home in Cairns from the child’s home in the Torres Strait for the duration of the times agreed or specified;
(b)Mr Barton is to organise and pay for the child to travel to his home in the Torres Strait from Cairns.
7.After the child commences secondary schooling away from her father’s home if Government funding does not fully meet her costs of travel during school holidays between her school and each residence to comply with the times specified in Order 4 then the costs of her travel not covered by funding is to be shared equally between Ms Moses and Mr Barton.
8.When the child is living with Mr Barton:
(a)the child is to be at liberty to communicate with Ms Moses at all reasonable times she wishes by telephone, email or post;
(b)Ms Moses is to be at liberty to communicate with the child by email and post at all reasonable times and is to be at liberty to communicate with her by telephone:
(i)Wednesdays and Sundays between 6.30pm and 7.00pm [or other two days or times agreed with Mr Barton] and
(ii) on special occasions.
9.Whenever the child is spending time with Ms Moses:
(a)the child is to be at liberty to communicate with Mr Barton at all reasonable times she wishes by telephone, email or post;
(b)Mr Barton is to be at liberty to communicate with the child by email and post at all reasonable times and is to be at liberty to communicate with her by telephone:
(i)Wednesdays and Sundays between 6.30pm and 7.00pm [or other two days or times agreed with Ms Moses] and
(ii) on special occasions.
10.Pursuant to s65L a Family Consultant, Ms K if possible, is appointed for a period of 12 months to supervise, as far as practicable, the compliance with these orders and she give any party such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of these orders.
11.If practicable, the Family Consultant, Ms K, in company with Mrs J, is to see the child for the purpose of telling her of the orders made.
IT IS NOTED that publication of this judgment under the pseudonym Moses & Barton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC685 of 2007
| Ms Moses |
Applicant
And
| Mr Barton |
Respondent
REASONS FOR JUDGMENT
Proceedings
The culture of the people of the Torres Strait Islands includes the traditional practice of giving and receiving children within families, known as Kupai Omasker, and that is the circumstance since birth of the child about whom decisions must be made. Born in October 1997, the child is now aged 10 years and 9 months.
In the course of the proceedings an order was made for a Family Report which was undertaken by a Family Consultant, Ms K, who ultimately produced two reports. She was assisted in her task by Mrs J, formerly an Indigenous Family Liaison Officer with the Court, and she was also assisted by an interview with an elder from Y Island, Mrs S, who gave her perspective on community attitudes and the cultural implications of decisions about the child’s living arrangements.
As the reporter explained it, the traditional practice of Kupai Omasker involves the permanent giving of a child from one family to the other by mutual consent, usually within the extended family. The child takes the surname of the receiving family and is brought up as their child. It is a widespread practice in Torres Strait Islander families and is integral to Islander society and the development of social and economic bonds between families. It is regarded as strengthening the social structure through kinship and reciprocity and is strongly connected to wider aspects of customary laws which define the identity of Torres Strait Islanders. In this case no issue is taken by either parent about the custom as described or that it occurred in the child’s situation.
Ms Moses acknowledges the custom of Kupai Omasker and that the child was given to Mr Barton and his deceased wife, not to her, but her position is that the child’s needs would be best met by continuing to live with her, spending some school holiday time with her father and having regular telephone contact with him. That has been her proposal in the proceedings from the outset. Her view, essentially, is that as the child’s mother from when she was an infant the child is attached to her, they are closely bonded, she is well able to provide for her, and remaining in her care would accord with the child’s wish [at the time of hearing] to remaining in Cairns to finish her primary schooling. For her secondary schooling, which begins in 18 months time at the beginning of 2010, the child has indicated she wishes to attend boarding school at X Private School and Ms Moses is leaving that open as an option without committing to any decision now.
Mr Barton maintains that the child was given to him and his wife by his niece according to the traditional custom of Kupai Omasker and Ms Moses has no claim on the child accordingly. On his view of it, his obligations would be fulfilled by the child living with him and his partner, Ms M, where she will be raised within his family. That is not to say Mr Barton’s position is based solely on his strong views related to cultural considerations; there is no suggestion he is not also genuinely motivated by his love for the child. It is his case that he is well able to provide for her, the child is attached to him, and she would make the necessary adjustments if she were to move to live with him. His position throughout the proceedings has been for the child to live with him in the Torres Strait and spend time with Ms Moses during the school holidays and have regular telephone contact with her at other times.
Evidence
As well as the evidence from the reporter and both parents there is evidence from Mr B, Ms Moses’ partner; Mr G, the pastor of her church; Ms M, Mr Barton’s partner; Ms C, his daughter; and Mrs T, the child’s biological mother.
Background
The mother (48) was born in Papua New Guinea and relocated with her family at the age of 3 years to E Island in the Torres Strait where she was raised and brought up within Torres Strait Island culture. She married a Torres Strait Islander and they have four children. They separated in 1986 and Ms Moses moved to Cairns with the children. All of the children later returned to live in the Torres Strait where they remain. The mother now has seven grandchildren. She told the reporter she is close to her children and has regular telephone contact with them. She rarely returns to the Islands but sees relatives when they come to Cairns. She previously worked in hospitality but currently works in education, including teaching Torres Strait Islander culture.
Her partner, Mr B, is a Torres Strait Islander who grew up in the Torres Strait. He is employed in Cairns as a public servant. Many years ago he and Ms Moses were in a relationship which ended when she and Mr Barton became involved. They resumed their contact after the separation and began living together in early 2007. They later separated for several months, precipitated by a domestic violence order against Mr B for a 2 year duration [no copy was made available], but they have been back together for the past few months. The circumstances giving rise to the order were described as verbal arguments, but it was never made clear what was at the bottom of it save that it was about Ms Moses’ relationship with Mr Barton and she did not want his name mentioned because she was ‘over it’. Asked whether she had also told the child not to mention his name, she said she had not. But she did tell the child that the family should still be together, there should not be a broken home, that she was angry with her father ‘for what he was doing with [Ms M]’ and that she was ‘angry with [Ms M].’.
Mr Barton (51) was also born in Papua New Guinea and he relocated with his family at an early age to Y Island in the Torres Strait and was brought up there within Torres Strait Islander culture. He told the reporter that he has nine siblings, all of whom live on Y Island save for a sister, L, who lived in Cairns at the time. His parents still live on Y Island. Apart from the child, he has a number of children: Ms C, H, F, and L, who are his biological children, and P whose biological mother is Mr Barton’s sister and given to him to bring up according to the traditional custom of Kupai Omasker. He lives on D Island with his partner, Ms M (34), but he plans to move back to Y Island when the child is returned to his care. Ms M is a Torres Strait Islander and has lived in the Torres Strait all her life. Mr Barton met her in 2006 and they have lived together since he ended the relationship with Ms Moses towards the end of that year. She presently works in hospitality. Mr Barton earns his living as a fisherman in the Torres Strait and has done so for many years.
Turning to the child’s early circumstances, her birth parents are Ms T and Mr W who remain living together, now on R Island. Ms T’s mother is Mr Barton’s sister; hence, Mr Barton is Ms Gagai’s uncle and the child’s great uncle. Mr Barton and his wife, […], had a daughter who died and several days after the child was born in October 1997. Mrs T and Mr W gave the child to them to bring up according to the custom of Kupai Omasker. They were living on Y Island at the time.
Within a short time Mr Barton and his wife went to Townsville for his wife to receive medical treatment while the child remained on Y Island in the care of his sister. His wife passed away in February 1998 when the child was 4 months of age Mr Barton returned to Y Island.
Some months later Mr Barton asked Ms Moses to assist him in caring for the three children: C [who was around 11 years of age], P [who was aged about 6 years] and the child who is the focus of this hearing [who was aged 10 months]. The two older children attended school in Cairns, as the child did in due course. Mr Barton moved between Cairns and the Torres Strait as he went about earning his living and supporting his family as a fisherman. There were times he was absent from Cairns for up to a month and there were also times he was in Cairns for longer periods outside the fishing season. Apart from his financial support, when he was in Cairns he was involved in the children’s care but otherwise that responsibility fell to Ms Moses. Over time the nature of Mr Barton’s relationship with Ms Moses changed and their relationship as partners began around 2001. During these years the three children called Ms Moses ‘mum’. The child regarded Ms Moses as her mother and Mr Barton as her father.
In April 2006, after she had completed her high school education, Ms C ‘ran away’ and returned to the Torres Strait after a short stay at her aunt’s house in Cairns. She now lives on Y Island. In her affidavit she paints a picture of life in Ms Moses’ household as being less than ideal, including observations about the children being left at times to fend for themselves, Ms C doing most of the cooking, and being restricted in social contacts other than with people from the church. She said there was ‘no love in [Ms Moses’] home’. Similar criticisms of Ms Moses’ attitudes were made by the child’s maternal grandparents in their discussions with the reporter to the effect that she was ‘too strict’ with the child whom they described as ‘Cinderella’ doing chores and never allowed to enjoy herself.
Yet when these matters were taken up with Ms C at the hearing the initial picture was somewhat modified by concessions she made along with her agreement that in mid-2007 she and Ms Moses had a ‘good talk’ when she acknowledged to Ms Moses there had been ‘good times’. While the grandparents had been critical of Ms Moses in discussions with the reporter, they gave no direct evidence and, in any event, as the case was ultimately put for Mr Barton no criticism was levelled at Ms Moses along the these lines. To conclude the issue, it may be timely to note that in his affidavit Mr G, who has known Ms Moses and the child for about 5 years in his capacity as church pastor, describes Ms Moses as being of the ‘old school’ meaning she is firm in her discipline of the child but on his observations the child appears to have done well under Ms Moses’ care and she is an active participant in many church related activities. Nothing undermines that perspective and so in the final analysis there is nothing here to reflect in a negative way on Ms Moses or her parenting.
In late 2006 Mr Barton brought the relationship to an end by informing Ms Moses he would be returning to the Torres Strait with the children P and the child. He did so in November 2006 and after a few weeks initially on D Island he returned with them and Ms M to Y Island. On her first meeting with Ms M the child called her ‘mum’.
That Mr Barton should have taken the child with him on separation from Ms Moses has the support of Ms T who confirms that she and her husband gave the child to Mr Barton and his wife according to their traditional custom and she wants the child to remain with her adoptive father. She did not agree - and does not agree - to the child staying with Ms Moses.
After Mr Barton took the children to the Torres Strait there was telephone contact between Ms Moses and the child although Mr Barton does not see that as satisfactory by reason of Ms Moses’ frequent calls which he suggests the child was reluctant to take and found upsetting. He describes the child as being settled and surrounded by siblings and extended family on Y Island and says she did not ask to be returned to Ms Moses.
On 15 December 2006 Ms Moses instituted proceedings in the Federal Magistrates Court for parenting orders and for a recovery order to have the child returned to live with her in Cairns. Her application did not seek P’s return. It seems the application was not served until late January and the reason given is that Mr Barton was then living on Y Island and remoteness made communication difficult.
Mr Barton says he was shocked and upset when he received the Court papers a few days before the scheduled hearing on 5 February. With no legal services on Y Island, he had no legal advice before he appeared by telephone at the hearing. He says he did not understand what was happening as English is not his first language and he did not realise an order could be made taking the child away. But in fact that happened. Interim orders made 5 February provided for the child to live with Ms Moses in Cairns, she was to be taken to R Island for a flight to Cairns on 15 February, and failing return a recovery order was to issue. The orders also directed the preparation of a Family Report to address certain matters and the case was adjourned generally to a date to be fixed.
Mr Barton took the child to D Island where he sought legal advice and the child went into Ms Moses’ care on 17 February. The child has lived with Ms Moses since although there have been other developments to be mentioned shortly. Of course one of the effects of this arrangement was to separate the child from living with her brother, P.
Mr Barton’s counsel makes the point that, having been dealt with in this fashion on 5 February, no provision was made for a later interim hearing. What occurred was that in August 2007 the matter was transferred from the Federal Magistrates Court to this Court and it was listed for mention at the October sittings when efforts were made, with the Family Report by then available and with the assistance of Mrs J, to resolve the issues by agreement. That did not happen and directions were later made for the filing of evidence and the matter set for hearing in the current July sittings. Accordingly, delays brought about by the transfer between Courts, the availability of circuit sittings and the search for an agreed expert have all meant the time to conclude the case from the time the interim orders were made has stretched to almost 18 months. At no point – for understandable reasons in the circumstances – did Mr Barton seek an interim hearing following what had occurred on 5 February, as his counsel conceded.
After those orders there was regular telephone contact between the child and her father although Mr Barton does not regard the arrangement as satisfactory. He expressed concerns about the impact on the child of Ms Moses’ anger towards him for ending the relationship and about her influence on the child.
In April 2007 Ms Moses wrote to the school and asked that Mrs L, Mr Barton’s sister, have no contact with the child. A month later she withdrew it. She says she imposed the ‘ban’ because of the way Mrs L had approached the child to invite her to play with one of her daughters, but she does not elaborate by describing just what it was about the way the invitation was delivered that justified her response and so her explanation does not illuminate her reasons.
Mr Barton’s solicitors wrote to ask for the child to spend Easter holidays with him but Ms Moses refused the request. She says the child had just come back and had settled and it was too soon for her to return. At the end of May Mr Barton travelled to Cairns to participate in interviews for the Family Report when he saw the child for the first time since her departure from the Torres Strait in February.
In the meantime there had been a telephone conversation between the child and her father when he told her of her ‘adoption’. As he explained it, the child had told him she wanted to stay living in Cairns and he became angry that she should talk to him like that, which he found hurtful and upsetting and it made him angry. He later regretted it and called the child back to apologise when they discussed it further. Obviously this was something that ought not to have been handled in that way and it comes as no surprise to read that the child was upset by it.
Against that general background, the first Family Report issued in September. It came after interviews with a number of adults and the child and is relatively comprehensive. A summary of some of the key areas of discussion follows:
· Ms Moses was reportedly still upset by the separation after Mr Barton’s relationship with Ms M and by the children being taken to the Torres Strait, she acknowledged having had a ‘bit of a problem with alcohol’ in the past, and she identified the important place of the church since she had resumed regular attendance some years back. She saw the telephone calls from Mr Barton as upsetting for the child, particularly the call when he told her ‘[Ms Moses] is not your mother. She is not your family’ and for a short time she had refused to allow Mr Barton to speak with the child. She discussed her care of the three children over the years and said she had ‘always been strict’. She identified what was important in parenting as ‘The best well being of the child. They need to be well looked after, well educated, on time, behave properly and no swearing’. She said she supported family discussions about problems and encouraged the children to have an opinion. She discussed the two older children in some more detail, including some problems P had experienced, as well as her relationship with Mr B. She said she felt upset and threatened by Mr Barton and his family and she wanted recognition for her place as the child’s mother.
· The reporter said Ms Moses presented as a caring and competent parent who has taken very seriously her role as carer for Mr Barton’s three children and she had demonstrated her willingness to continue to promote the child’s relationship with Ms C and P.
· [Mr Barton] discussed the relationship with Ms Moses which he saw as having changed over time, he talked about his relationship with Ms M and their plans to marry, and about his desire to have the child return to live with them and P [who now attends boarding school in Cairns]. He described being frustrated with phone calls with the child: ‘Every time I spoke with the child, tell her I want to take her out, she say ‘I have to get permission from ([Ms Moses])’. I have asked for the child to spend a holiday with me and [Ms Moses] said ‘No’.’ He acknowledged it had been wrong to tell the child of her ‘adoption’ when he had been angry and upset and said he had apologised to her the next day when they had a good talk. He said the child had enjoyed her time in the Torres Strait and his family were very happy to see her. Asked what was important in parenting he said: ‘‘Talk to them. Advise them what to do.’ He said that if the children ask to go out, ask if they have done their chores, if so, they can go and play then come back in the afternoon.’
· The reporter assessed Mr Barton as a caring parent who had difficulty understanding why Ms Moses was able to have the child recovered from him in the Torres Strait when, from his point of view, the child was his traditionally adopted child.
· Mr B said he had never married although he believed he had a couple of children in the Torres Strait and he had raised a number of step children. He discussed his employment history and the relationship with Ms Moses as well as his developing relationship with the child. He has a long family association with Mr Barton whom he respects. He said he supports the child spending time with her father. The reporter assessed Mr B as pleasant and cooperative with an apparent commitment to church and family life with Ms Moses and the child.
· Ms M discussed her future plans with Mr Barton. She said they planned to enrol the child at the school on D Island. She expressed support for the child spending time with Ms Moses in holidays.
· The child’s birth parents came from the Torres Strait for the report interviews. They explained the background to their giving the child to Mr Barton and his wife to bring up and they were clear in their wish for the child to be with her father and that she not stay with Ms Moses. As they explained it, ‘when parents of a traditionally adopted child separated, it was usual to respect the bloodline, that is, to keep a child within the family of origin. They said the only exception would be if Mr Barton was not a good father, then it may be sanctioned by the family for the child to live with Ms Moses.’ They were able to accept that the child should have holiday time with Ms Moses, just as they would like the child to spend time with the W family. In the reporter’s assessment they were firm in their conviction that the child should live with her father; they were prepared to take the child back from Ms Moses themselves as her birth parents and give her back to Mr Barton.
· The maternal grandparents, Mr and Mrs T, expressed concern and disappointment that Ms Moses had taken out the recovery order and were upset that the child was sent back from her family and her home on Y Island to live with Ms Moses in Cairns. They explained how the traditional adoption came about and were firmly of the view that the child should live with Mr Barton because she was given to him and not to Ms Moses. Amongst other matters, they maintained Ms Moses had not permitted the child to spend time with them. They spoke positively about the child’s time on Y Island with her family. They agreed that if the child lived with her father she should be able to spend holiday time with Ms Moses. The reporter assessed them as holding very strong convictions based on their cultural beliefs that the child should live with Mr Barton.
The reporter interviewed the child twice for the first report, the second occasion being in late August. Her key observations follow:
· The reporter described the child as ‘shy and quietly spoken, often becoming distressed tearful and anxious during the interview. She was quite tense and anxious for most of the time.’ English is the child’s first language but she was learning her traditional language as well. She was missing her sister and brother. She described her time on Y Island in an animated way, referring to swimming and fishing and playing with cousins and she said she had enjoyed spending time there with her grandparents and meeting other family. The child clearly found the conflict between her parents very distressing; the reporter did not ask her directly where she would like to live because of her anxious state. She described her home life with Ms Moses as a happy and settled routine with school and church [the reporter saw no indication of harsh or punitive parenting by Ms Moses]. As for the time with her father over the Christmas holidays she clearly and unambiguously stated she had very much enjoyed the time spent with him and she was keen to spend more time with him in the future. She was not so keen on seeing Ms M again; she said she did not like her and she aired some complaints about her treatment but she was vague about this and gave no details. The reporter was unable to say whether her negative attitude had any real basis or was related to her heightened emotional state about the conflict between her parents. However, during the second interview in late August she described Ms M as ‘kind’ to her and the child spoke of her only in positive terms [she had spent time with her father and Ms M earlier when they were in Cairns for the report interviews].
· Observed with Ms Moses, the child was described as settled and comfortable and the interaction between them was warm, friendly and at times humorous. Ms Moses proudly described the child’s achievements at school and the child enjoyed the praise she received. The report continues:
After the child’s individual interview, [Ms Moses] was invited back into the room to say goodbye to the child prior to the child having an observation with her father and Ms [M] then spending the afternoon with them. When [Ms Moses] returned to the interview room, she became upset and tearful and tightly hugged the child telling her “she would be alright”. The child then became tearful herself.
After [Ms Moses] left, the report writer spent a few minutes trying to settle the child who was crying and a little distressed at this stage. Finally, the report writer decided to ask [Mr Barton] to come into the interview room by himself to see if he could settle the child. [Mr Barton] entered the room and immediately began crying. He hugged the child and comforted her and although she continued to cry, she hugged him back and held onto him.
[Ms M] was invited in a little later, after the child had settled, and both [Mr Barton] and [Ms M] brought out photographs they had taken over the Christmas holidays. The child became animated and talkative and proudly showed the report writer and Mrs J photos of herself and her family fishing and playing.
By the end of the observation period the child was smiling and laughing and clearly at ease with her father and [Ms M].
· In the first interview she did not ask the child her feelings about the recent disclosure that she was traditionally adopted or about her views on her future living arrangements because she thought the child had already experienced significant distress during the child assessment session. At the second interview she did raise these issues with the child because she was more relaxed and settled.
· On raising the disclosure of her traditional adoption the child became a little confused and said her father had told her ‘your mother died’ and that ‘[Ms Moses] was not your real mum’. As for her views on her future living arrangements, the child stated clearly that while she missed her father very much she would prefer to remain living with her mother and spend holiday time with her father and extended family in the Torres Strait. She described missing her mother while she had been in the Torres Strait with her father and Ms M and when she found out she was going back to Cairns she was happy but did not want to tell her father because he was crying. She was concerned her father would be sad and maybe angry if he knew this was her preference. While she missed him and thought Ms M kind, she said she did not want to leave her school or her friends and that she wanted Cairns to be her home.
· The reporter saw the child as a quiet girl who has led a protected and sheltered life with Ms Moses and who is very attached to Ms Moses. She also said it is clear that the child has an attachment to her father and that she wants to maintain a relationship with him.
The reporter opened her evaluation with the observation that a critical issue in deliberating on the child’s best interests is the relative importance of the child’s need for stable attachments to be maintained and her need for cultural affiliation as defined by Kupai Omasker. She went on to observe that the child has been nurtured and protected and loved by Ms Moses for the last 9 years, she has a primary attachment to Ms Moses, and they have a warm and loving relationship. Ms Moses has ensured the child attended school, including sporting activities, she has taught the child about her Torres Strait Islander culture and she has taken the child to Church on a regular basis. The child has a very close relationship with her sister and brother, Ms C and P, she wanted to maintain contact with them, and Ms Moses had demonstrated willingness to facilitate her time with them. The child also had positive views about Mr B. On the other hand, the reporter regarded Mr Barton as a consistent and loving father despite his absences in the Torres Strait, she assessed the child as having an attachment to him, and she recognised that he takes his responsibilities as an adoptive father very seriously, including raising the child within her traditional culture and family. The child had also expressed positive feelings about Ms M and had enjoyed the time she spent with her father and Ms M over the Christmas holidays. In the reporter’s opinion both parents had demonstrated they are capable of providing a safe and secure home for the child and the child has an attachment to both of them.
The report continues by posing the dilemma at the heart of this decision:
It is important to acknowledge that while the achievement of stable and affectionate attachment is a highly important developmental goal for all children, the achievement of a coherent sense of identity based upon cultural affiliation is also extremely important.
This occurs particularly for children when they reach early and later childhood and can be identified as a deep sense of belonging that is the foundation of the child’s identity. This sound foundation assists the child to develop a balanced and stable adult personality.
Thus for [the child], a significant consideration in proposed parenting orders is not only her existing attachments to [Ms Moses] and [Mr Barton], but also the promotion of her cultural affiliation, that is, giving weight to the benefits of her exposure to a broader and deeper network of family and kin to whom she will eventually form new and strong attachments.
[Ms Moses] is of Papua New Guinea culture, however, she grew up in the Torres Strait and married a Torres Strait Islander. [Ms Moses] would thus have a very good knowledge of Torres Strait Islander culture and customs. In addition, [Ms Moses] teaches Torres Strait Islander culture and customs to [children…]. Thus it would seem possible for [Ms Moses] to teach [the child] many of these customs and to ensure she is exposed to Islander feasts and other cultural events in Cairns and in the Torres Strait.
On the other hand, if [the child] lived with her father, either on [D] Island or on [Y] Island, she would be immersed in the Torres Strait culture and would be living with her blood relatives.
The question remains, what is in the best interests of the child: [the child]’s primary attachment is to her “mother”, [Ms Moses], and [the child] is experiencing a happy and fulfilling life in this household. At the same time, for [the child] to develop her cultural identity and her sense of belonging within her own kinship network it is essential that she has significant exposure to these relatives and essential that she spends time in the Torres Strait, in particular, spend time on [Y] Island. It is equally important for [the child] to spend a substantial amount of time with [Mr Barton] to ensure her relationship with her father can develop appropriately.
The reporter saw the best option at the time as the parents coming to an agreement that takes into account the child’s views balanced with Mr Barton’s parental obligations under the traditional custom of Kupai Omasker. In her view either way it was important for the child to spend significant time with the other parent during school holidays. If she were to live with Ms Moses it would be important for Ms Moses to continue to promote the child’s relationship with Ms C and P as she had been doing. If she were to live with her father, the child would experience sadness and loss for her relationship with Ms Moses who has been her primary carer, but Mr Barton’s willingness to have her spend time with Ms Moses in holidays would assist her in the transition to living with her father full time. The reporter recommended a conference with the Registrar and Mrs J to try to reach agreement and if that does not occur then she suggested the matter proceed to hearing and a Torres Strait Islander cultural expert be called to assist the Court. Indeed efforts were made in both directions, to no avail.
Around the time the report was released it was agreed the child would travel to D Island on 24 September 2007 and return to Cairns on 4 October.
The child’s school report at the end of 2007 suggests she had been achieving well at school, scoring a mix of A’s, B’s and C’s for achievement and effort in various areas of learning. The overall comments described her as an ‘absolute pleasure to teach such a bright, caring and supportive student’ who works to the best of her ability and she was commended for her efforts. She was reported as displaying qualities of leadership and being an excellent peer tutor as well as a valuable member of the class.
At some point it was agreed that the child would spend time with her father for the first half of the Christmas school holidays and return to Cairns on 5 January. The cost was shared and her mother booked and paid for her return trip from R Island to Cairns. Through her solicitors Ms Moses wrote to request that Mr Barton take the child to Y Island during this time to see family and have a holiday. He had planned to stay on D Island but after this he did take the child to stay on Y Island. That decision proved to be an obstacle to her return to Ms Moses. The options were to go by dinghy from Y Island to R Island [a 4 hour trip] to take a flight back to Cairns or to fly the child out of Y Island to catch the flight to Cairns. Yet Mr Barton maintains that continuing bad and unpredictable weather prevented him from doing the former and lack of funds prevented the latter. As he put it, they ‘got stuck’ on Y Island; the bad weather made sea travel by dinghy dangerous; he had problems with the dinghy [the motor was broken]; petrol was not readily available; and he had been unable to fish to earn sufficient money to pay for the extra flight – as he put it, ‘no fuel, no fishing, no income’.
After his solicitors advised that weather conditions were too rough to travel from Y Island there followed an exchange of correspondence between solicitors that went on for some time. Mr Barton was still maintaining rough weather prevented him returning the child in February and he enrolled her at the Y Island School. Ms Moses had the police contacted and enquiries made about the state of the weather and suitability for travel. Eventually in mid-March she filed an application in the Federal Magistrates Court for a recovery order and that issued on 1 April. Mr Barton, who appeared by telephone, says he told the Federal Magistrate he would get the money together to buy fuel and take the child to R Island but it would take him a few days because he could not camp out. Nonetheless, the order was executed by police when Mr Barton was out fishing and the child was taken to D Island where she was met by Ms Moses’ relatives. The upshot was that the child had spent 4 months or so with her father and extended family on Y Island. She returned to Ms Moses’ care on 7 April.
Ms Moses describes the child as subdued on her return, she seemed shocked and upset by how the police had brought her back, and it was two or three weeks before she settled down and became her normal self. Ms Moses arranged counselling at school for her. She did not inform Mr Barton she was arranging that but in any event it seemed to help the child. For all that, the child was happy to return to school where she was greeted with enthusiasm by friends and teachers and she resumed her sporting activities.
On 10 April Mr Barton and Ms M returned to D Island and the child has since had regular telephone contact with her father, consistent with the orders, until he came to Cairns for the final hearing during the current sittings.
In early July this year there was to be the culturally significant event of the unveiling of the tombstone of Mr Barton’s deceased wife and it was agreed the child would travel to the Torres Strait to attend the ceremony. The reporter later said the child had quite a good understanding of the meaning of the ceremony and was excited at the prospect of being involved. This occurred, with Ms Moses’ active support and encouragement.
It was in those circumstances that the reporter updated her earlier report and the child was again interviewed in late May. The reporter described her as a bright and talkative girl who had matured significantly since the last interviews and she was more confident and more assertive about her views regarding her living arrangements. She had enjoyed the months she had spent on Y Island, she had been pleased with the warm welcome received from friends and teachers on her return to school in Cairns, and she had no difficulty picking up her school work and getting back into sports including netball and athletics. She was happy to be back with her mother and she was enjoying the routine of home and school.
Asked to describe her time in the Torres Strait, the child became animated and said she had a wonderful time on Y Island. She described enjoying the freedom of the Island lifestyle, spending time playing and swimming with her cousins and fishing with her father who had taught her cray fishing and how to run the boat. She described attending school on Y Island as a good experience, learning languages other than English [she was described at the hearing as fluent in English and Kriol]. In the reporter’s opinion, compared to the previous interviews the child now had a much stronger identity as a Torres Strait Islander - proudly declaring: ‘I am [...] and I am from [Y] Island’ - and a strong sense of kinship with Y Island, primarily the result of having spent that time on the Island.
Asked this time about her preference for her living arrangements, the child became a little upset and said she did not want to choose between her mother and father; she loved them equally. The reporter described her as being clear about this and she concluded the child was secure and happy living with each of her parents. Asked if she had a preference about her future schooling, the child was clear and firm that after experiencing both the school on Y Island and her Cairns School [she said the work at her Cairns school was ahead of the work at the Island school] she believed she had more opportunities at her Cairns school, both academically and in sports, and therefore she preferred to finish her primary school years in Cairns. For the child this will be a period of about 18 months since she starts her secondary schooling in early 2010. As for high school, the child said she would prefer to go as a boarder to X Private School where her cousin attends. It is said she was aware that to attend X Private School she would need to be a resident of Y Island – ie. to be eligible for government assistance for her secondary education as a remote area student. The reporter concluded the child’s views about her schooling were articulate and clear and reasoned and she recommended the decision take the child’s views on this into consideration – being bright academically and excelling at sport, it would be in her best interests to foster her educational aspirations and sporting achievements. But the reporter also said it is critical that any future living arrangement ensures the continued development of the child’s cultural identity. Ultimately, the reporter saw merit in both parents’ proposals about the child’s future arrangements.
For the updated report the reporter interviewed Mrs S, an elder of Y Island, in the company of Mrs J. Mrs S did not give direct evidence. Efforts to obtain evidence from an ‘expert’ on Torres Strait Islander culture, which Ms K had earlier recommended be obtained, had not been successful. The purpose of interviewing Mrs S was to ascertain the perspective of an elder on the cultural impact on the child of living with Ms Moses compared to living with her father and extended family. Mrs S knows the family well and is familiar with the circumstances in which the child was given to Mr Barton to bring up. She confirmed the essential aspects of Kupai Omasker set out in the first report. Like the reporter, Mrs S said there should be an agreement about the child’s arrangements. In her view that should have happened when they separated, adding: ‘The child is his ([Mr Barton]), but he should have talked to Ms Moses about it’. She said Ms Moses had been a ‘good wife’ and is a ‘good woman’ and that ‘(t)he child has a right to visit with her step-mother’ and ‘(w)e ([Y] Islanders) would not push the other parent (Ms Moses) aside.’ Nonetheless, she was firm in her view: ‘The child belongs to [Mr Barton] and should live with him’. She said the elders of the Y Island Council would be agreed unanimously that the child should live with her father because the child ‘belongs to him’, because of the blood connection to the extended family and the need for the child to ‘grow up knowing her family’ and to ‘know where she comes from’.
The reporter concluded the Y Island community would not accept a decision for the child to live with Ms Moses, in that event there would be pressure from the community on Mr Barton for not meeting his obligations as a parent, and in turn this would put pressure on the child who is now attempting to define herself and create her unique identity as a Y Islander. She again urged that agreement would be preferable to a Court decision, perhaps revolving around the child completing her primary schooling in Cairns in Ms Moses’ care. This could be seen more widely as Mr Barton’s choice and would also take account of the child’s views.
In her further evidence at the hearing Ms K elaborated on her reports but there was no fresh revelation or modification to what was reflected there. It might have been inferred from her recent report that the child would make the adjustment to living with her father if that was the decision and Ms K directly confirmed that to be her opinion. She also said that she did not get the sense that by nominating her preference to complete her primary schooling at Cairns the child was in some way expressing a preference to live with her mother; she confirmed that the child loved both parents equally and like any 10 year old she is not just interested in her parents but in her school and teachers and friends and so on.
Future proposals
While presently living on D Island, where they are renting a unit, Mr Barton and Ms M plan to move to Y Island if the child is returned to him. He has a four bedroom home there, presently occupied by his son and his partner and their seven children. They will obtain their own accommodation. The child will attend the Y Island State School and for her secondary schooling she will go to board at X Private School. Leaving the Islands to go to boarding school for secondary education is common and well accepted in the Islands. In the times the child has been with them Ms M has been responsible for her day to day care during her father’s absence fishing and that arrangement, which has the support of Ms M, would continue.
Ms Moses plans to remain living in Cairns and the child would continue with her schooling and her activities. As for her secondary schooling, Ms Moses has not made any decision. She said she would prefer the child to go to Z High School in Cairns but she is leaving open the option of boarding at X Private School [where Ms Moses attended as a boarder] consistent with the child’s preference. If an Abstudy benefit is not available by reason of the child’s residence in Cairns, it is not apparent how that could be achieved, but perhaps that could be overcome by some means. In any event, particulars of her proposal about the child’s education are set out in orders sought and they will be referred to in more detail shortly. Mr B will remain a part of her household. Ms Moses’ proposal involves supporting the child’s relationship with paternal relatives and ensuring the child is exposed to her Torres Strait Islander culture which Ms Moses teaches.
In either event, both parents propose visits for the child to the other during school holidays and for there to be regular telephone contact. The detail of this is apparent from the particular orders each seeks.
Orders sought
Ms Moses filed an amended application on 9 May 2008 but at the close of the evidence she adopted the orders proposed by the independent children’s lawyer [ICL]. In summary, the child would live with her in Cairns and have regular visits to her father in the Torres Strait, her secondary schooling would be the subject of discussion between the parents in an attempt to agree which school the child is to attend and if they are unable to agree after seeking mediation with a Family Consultant then they would have liberty to reapply to the Court on that issue. The particular are these:
1.The child [...] born […] October 1997 ([...]) live with her mother, Ms [Moses], in Cairns, at all times that she is not otherwise living with her father as set out in these Orders.
2.The mother Ms [Moses] and the father [Mr Barton] have joint parental responsibility, except that:
a)The child will attend [CX] Primary School for the duration of her primary schooling.
b)If the parents are unable to agree upon the child’s high school before 30 June 2009 then they are first to approach a Family Consultant at the Family Court to endeavour to mediate about the school and if no agreement is reached following mediation then each party have liberty to reapply to the court on that issue only.
3.While [the child] lives with [Ms Moses] and attends school in Cairns, (including her primary schooling at [CX] State School and her high schooling at such school that the parties may agree to), she will live with her father in the Torres Strait being either on [D] Island or on [Y] Island, depending on where the father is living, at the following times:
a)For the Christmas School holidays in 2008/09 commencing from Boxing Day until three days before school is to recommence and each alternate year;
b)For all of the June/July school holiday period in each year;
c)For all of the September/October school holiday period in each year;
d)For the first 5 weeks of the Christmas school holiday periods in 2009/2010 and in each alternate year; and
e)At all other times that [Ms Moses] and father agree upon, giving consideration to specific significant cultural events.
4.[The child] will live with her father, whenever the father is in Cairns, for up to a 7 day period at any one time provided that:
i.the father has given [Ms Moses] at least one weeks notice of his intended dates; and
ii.the father ensures [the child] attends school on any school day that she is with him; and
iii.the father ensures [the child] attends any sporting event or extra curricular activity in which she is involved while she is with him; and
iv.the father provides [Ms Moses] with an address at which [the child] is living while with him and a telephone contact number at which [the child] can be contacted.
5.When [the child] travels to live with her father in accordance with Order 4:
a.the father will organise and pay for her to travel from Cairns to [Y] Island, or [D] Island if the father is living on [D] Island; and
b.[Ms Moses] will ensure [the child] is delivered to the Cairns airport in time to board her flight
c.[Ms Moses] will organise and pay for [the child] to travel back to Cairns from [Y] Island or from [T] Island if the father is living there and
d.the father will ensure [the child] is delivered to [D] Island transfer barge for delivery to [R] Island airport or to [Y] Island airport, depending on where [the child] is travelling form , in time to board her flight
6.If [the child] attends boarding school for high school she will live with her father for ½ of each school holiday period being the first half in 2010 and in each alternate year and the second half in 2011 and in each alternate year
7.If [the child] attends boarding school for high school she will live with her mother for ½ of each school holiday period being the second half in 2010 and in each alternate year and the first half in 2011 and in each alternate year
8.If Government assisted funding is not available or not sufficient to cover all travel costs, [Ms Moses] will be responsible to pay for [the child]’s travel to/from boarding school when she travels to live with her and the father will be responsible to pay for [the child]’s travel to/from boarding school when she travels to live with him.
9.The father will communicate with [the child] whenever she is not with him as follows:
a.by he telephoning [the child] once each week on Wednesday between 6.30 and 7.00pm and
b.by [Ms Moses] arranging for [the child] to ring her father once each week, being Sunday between 6.30pm and 7.00pm
c.by he telephoning [the child] on [the child]’s birthday, and on Christmas Day.
10.Whenever [the child] is living with the father [Ms Moses] will communicate with her as follows:
a.by she telephoning [the child] once each week on Wednesday between 6.30 and 7.00pm and
b.by the father arranging for [the child] to ring her mother once each week, being Sunday between 6.30pm and 7.00pm
c.by she telephoning [the child] on [the child]’s birthday, and on Christmas Day.
11.That the Family Consultant, [Ms K], in company with [Ms J] explain these orders to [the child].
12.Pursuant to s65L that a Family Consultant, being [Ms K], if at all possible, be appointed to supervise, as far as practicable, the compliance with these orders and that she give any party such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of these orders.
Mr Barton proposes orders as set out in exhibit 2 which is in these terms:
1.The child [the child] born […] October 1997 live with [Mr Barton] the traditional adoptive parent of the child on [D] Island.
2.That the child spend time with Ms [Moses] in 2008 to 1 Week in April school holidays, for the whole of the September School Holidays and for the second half of the Christmas School Holidays.
3.That the child spend time with Ms [Moses] in 2009 and each year thereafter for the whole of the March/April School Holidays which should include Easter, the whole of the June/July School Holidays and alternate each year thereafter for the Christmas School Holidays.
4.That Ms [Moses] be responsible for the cost of travel to Cairns for the child and [Mr Barton] be responsible for the return costs.
5.That Ms [Moses] telephone the child each Wednesday and Sunday between 6.00pm and 7.30pm whilst the child is with [Mr Barton] and [Mr Barton] telephone the child at those times when the child is spending time with [Ms Moses]. The parties are not to have discussions during the phone calls between the child and either [Ms Moses] or [Mr Barton].
6.That each party give one week’s notice of travel times for [the child] and send the itinerary to the other party.
These are not as clearly expressed as they might be; for example, orders 1 and 3. While he refers in 1 to D Island, there is no doubt it is his proposal to move to Y Island in due course when the house becomes available. Nonetheless, the thrust of his position is clear.
Approach
In making a parenting order the best interests of the child are the paramount consideration [s 60CA]. That outcome is arrived at within the framework of stated objects and underlying principles set out in the Act. The objects are about ensuring children’s best interests are met: by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests, by protecting children from exposure to physical or psychological harm, by ensuring they receive adequate and proper parenting to help them achieve their potential, and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s60B(1)]. The principles underlying these objects, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents, a right to spend time on a regular basis and communicate regularly with both parents and significant others, a right to enjoy their culture, and that parents jointly share parental duties and responsibilities and should agree about future parenting [s60B(2)].
There is an obligation to apply a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility [s 61DA(1)], which is about decision making and not where the child spends time, but it does not apply where there are reasonable grounds to believe a parent has engaged in child abuse or family violence [s 61DA(2)] and it may be rebutted if the evidence establishes equal shared parental responsibility would not be in the best interests of the child [s 61DA(4)].
If the parenting order provides, or is to provide, for equal shared parental responsibility there is an obligation to consider whether it would be in the best interests of the child to spend equal time with each parent and whether that would be reasonably practicable and if it is to make that order [s 65DAA(1)]. If that is not the result, there is an obligation to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether that would be reasonably practicable [s 65DAA(2)].
The factors which determine best interests are ‘primary considerations’ and ‘additional considerations’ [s 60CC (2) and (3)] and the factors to be taken into account in determining what is ‘reasonably practicable’ are the distance between the parents’ residences, their capacity to implement an equal time arrangement, their capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, the impact such an arrangement would have on the child and such other matters the court considers relevant [s65DAA(5)]. ‘Substantial and significant time’ requires that the child spend days that fall on weekends and holidays and those that do not and also allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and also allows the child to be involved in occasions and events of special significance to the parent [s65DAA(3)].
Where the presumption of equal shared parental responsibility does not apply for permissible reason the outcome is determined by the primary and additional considerations having regard to the stated objects and underlying principles. There are two ‘primary considerations’ which reflect in part the objects and there are a number of ‘additional considerations’ which are wide ranging and in some instances their meaning elaborated upon in other sub-sections [eg s 60CC(3)(4)].
The child being a Torres Strait Islander child, there are amongst these provisions some that bear specifically upon her circumstances as an Indigenous child and in her closing address counsel for Mr Barton referred to and urged attention be given to these particular provisions:
[s 60B] Objects of Part and principles underlying it
…..
(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, …
(b) …
(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.
[s 60CC] How a court determines what is in a child’s best interests
….
(3) [Additional considerations]: Additional considerations are:
….
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
There is also s 60CC(6) which repeats s 60 B(3) but is related specifically to the additional consideration in s 60CC(3)(h):
(6) [Right to enjoy Aboriginal or Torres Strait Islander culture] For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
Counsel was right to draw attention to these particular provisions. But of course the underlying principle mentioned, elaborated in s 60B(3), and the additional considerations in s 60CC(3)(g) and (h), elaborated in s 60CC(6), are to be taken into account along with all other matters specified. These are additional, specific matters relevant to the circumstances of an Indigenous child, but nowhere is it said they are to prevail over the stated objects or the other underlying principles or the primary considerations or the other additional considerations, all of which the legislation directs be taken into account and weighed when exercising the discretion involved in making parenting orders. Like the other principles and considerations, they serve the useful function of articulating matters that are indisputably necessary and important to be considered and weighed when the interests of a child are at stake, in this instance an Indigenous child, thus making it less likely they will be overlooked amongst all other considerations. I do not take the reference to the law by counsel for the father in her submissions to be putting it any higher or differently.
Best interests
I turn now to the primary and additional considerations. While a number of them refer to ‘parents’, counsel made submissions directed to them and that is appropriate.
Primary considerations
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
As things have evolved, the child has a different relationship with each of her parents which is quite understandable given the arrangements in place over the years, their different personalities and perhaps even the child’s gender plays some part in it. Yet, while different, her relationship with each of them is a meaningful one which is unquestionably to her benefit. Even so, it must be recognised that an important thread to her relationship with her father - and not with her mother - is a blood line relationship which has behind it the traditional custom within Torres Strait Islander culture of strengthening family ties by being given at birth to him and his deceased wife for them to bring up as their own child.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is a reference by Mr Barton’s counsel to the domestic violence order against Mr B precipitating their separation for a time and further reference to the absence of any clear picture of what occurred to give rise to their separation or to the order. It leaves some doubt, it is said, about the likelihood of harmony in their home.
The submission is a reasonable one and yet there has been no evidence to suggest the surrounding circumstances involved physical violence, although of course it is recognised that children also need to be protected from the harm that can flow from being exposed to verbal abuse or arguments turning into uproars. It is also recognised that whatever occurred between Ms Moses and Mr B, it seems not to have had any negative impact on the child’s attitude towards Mr B or to have dampened her positive response to him as an important figure in her household. It is reasonable to conclude, therefore, that the cause of the separation and the basis for the order were not of such a magnitude as to expose her to the potential harm of abuse and/or violence.
Additional considerations
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child’s views have been set out fairly comprehensively in what has been said already. On the question of her future living arrangements she does not make a choice between her parents whom she loves equally. But she does express a preference to continue and complete her primary schooling in Cairns before going off to board at X Private School in 18 months time. Of course one implication of making an order to give expression to these views would be that she would live for the next 18 months with [Ms Moses]. As for the longer term beyond the next 18 months, it would be impossible to give expression to her schooling preference since her choice must be dependent on other factors not presently known, more particularly, whether and in what circumstances funding for remote area Indigenous children would be made available through Abstudy. In any event, while [Ms Moses] expressed support for the child about her schooling, she has another preference and she has not yet made the decision that she will go to X to board. Rather, the proposal she adopted envisages the secondary schooling question be left in abeyance for the parents to attempt to agree before 30 June next year, followed by an approach to a Family Consultant at the Family Court for mediation, followed by further Court proceedings on the issue if no agreement results.
Although not quite 11 years of age yet, certainly the child can be seen as a sensible and balanced child commensurate with her age and it is therefore accepted that her choice of schooling is reasoned and based on her experiences of both schools, as the reporter noted. It is also recognised and accepted that she has been achieving well academically at her school in Cairns and that she has a keen interest in sport which she is able to pursue in her school environment in Cairns. Yet it also has to be said that there are considerations other than her choice of schooling that have to be weighed in the balance in her interests and it could not be expected that she could appreciate the deeper implications for her own life, extending far beyond where she goes to school for the last 18 months of her primary schooling or even where she completes her secondary schooling. After all, she is still of a relatively young age; she specifically says she loves her parents equally and she does not want to choose between them; she has come to identify strongly as a Torres Strait Islander from Y Island; and her particular family circumstances are bound to the active and strongly held convictions related to Kupai Omasker within her father’s community and family in the Torres Strait.
The mix of these various last mentioned factors mean that while the child’s views are an important consideration and they do carry a deal of weight in the balance overall, they are not the sole consideration and nor does their weight overwhelm all other considerations. That is because this decision has potential implications for her that she cannot be expected yet to have the maturity or long range foresight to fully appreciate. It can be seen from her three interviews with the reporter over a 12 month span that the child has moved in her attitudes on certain matters of not insignificant importance and that of itself demonstrates the evolution of changes, lending support for that assessment.
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The child has a close and loving relationship with each of her parents. She is more recently reported as saying she loves them equally; nonetheless, in the earlier report it was said that her primary attachment is to her mother, an understandable situation given the history of her care from the time she was a baby. It is accepted that remains the case, despite her experiences in her father’s care in the time that followed that initial assessment.
Despite the relatively short time she has known Mr B and he has been a member of her household, the child has a good relationship with him, she has a positive attitude towards him and she talks fondly of him.
The same can be said of her relationship with Ms M. Despite some negative comments in the initial interview, the child did not take long to come around and it is accepted that she has a good relationship with her.
There is every indication the child has a good relationship with Ms C and P. They all grew up together as siblings in the same household until early 2006 when Ms C took things in her own hands and the child and P remained together until she was returned to [Ms Moses] following the orders in February last year. Those relationships are important to the child and it would be to the child’s considerable benefit to ensure those sibling relationships are maintained.
She has also developed relationships with community and extended family on Y Island during her stay there. Being integral to her identification not only as a Torres Strait Islander but also as a Y Islander, they are important relationships that need to be maintained.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
[(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.]
(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
It will be convenient to address these matters together.
The evidence demonstrates that each parent could point to some event or statement to demonstrate shortcomings in one direction or another.
For example, it might be said that Ms Moses’ actions in telling the child the family should be still together, her father had broken up the home and she was angry with him for what he was doing with Ms M was not facilitating or encouraging the child’s relationship with her father but seeking to have the child align herself with her mother against her father or to have not been sufficiently sensitive to the impact on the child of her criticism of her father and therefore not provided for the child’s emotional needs.
There is the question of Ms Moses’ willingness and ability to foster the child’s ongoing relationships with extended family, such as with Ms C and P and other members of her father’s family. While there has been some support, the history since separation is not exactly replete with examples of the child getting together with a member of her father’s family. At one time Ms Moses took the view that ‘all of the family were against’ her. Even so, for present purposes it can be accepted that there would be no unreasonable obstacle to this occurring if the child were to be living with her.
On the other hand, there could be little dispute that Mr Barton’s actions in telling the child of her birth and giving circumstances the way he did, in anger, was not encouraging or facilitating her relationship with her mother and nor was it directed to meeting her emotional needs. It might also be said that his explanation for not returning the child from the visit to the Islands earlier was less than satisfactory and not entirely convincing in the account given of obstacles for the whole of the time involved.
There is also the question of his willingness and ability to foster the child’s ongoing relationship with Ms Moses which some of his statements call into question. Yet I am satisfied these statements have to be seen from the perspective of his strong convictions about the obligations and adherence to his culture and the fact that the child is living with Ms Moses rather than with him as those obligations and adherence require.
The criticisms that arise under these considerations go both ways and in the final analysis neither gains the advantage.
On a more positive note, it can be said without doubt that each parent has a genuine love for the child and each is committed to seeing to her upbringing for the remainder of her dependent years according to what they see is best for her.
The child has had the considerable advantage of Ms Moses’ care from the age of 10 months and the child’s attachment to her as assessed by Ms K is unsurprising. Ms Moses has been on hand throughout the years of her upbringing to this point, she has supported her in her education, sporting pursuits and her home and family life throughout and the child has developed well as a result. The comments in her end of year 2007 school report convey the impression of a delightful child. There is plenty of support for the reporter’s assessment that the child would be happy and secure continuing to live with her mother. Mr B is part of Ms Moses’ household and it can be taken that will continue into the foreseeable future. But that does not represent an obstacle to the child continuing to live with her mother since she speaks positively of him and there is no reason to think there will be lack of harmony in the home in the future.
That said, the child has also had the ambit of her father’s care and support over these same years. True it is he has been absent for periods of time earning his living by fishing in the Torres Strait, but that has been for the financial support of the family and he has been available to her at other times. While Ms Moses has had a closer day to day involvement that is not to say the child’s achievements and well rounded development is to be seen as unrelated to Mr Barton’s presence and support and influence in her life. Her time with him and extended family on Y Island for several months fairly recently, whatever else might be said of it, demonstrates that she is happy and secure in his care also. That was the reporter assessment and it is accepted. Ms M is part of Mr Barton’s household and that will continue into the future. While the child’s initial response to Ms M was not encouraging it did not take long before there was a change to a more positive response. It is recognised that Ms M would have a central role in the child’s day to day care if she were to go and live with her father, given his occupation as a fisherman, but there is nothing about her or her circumstances to suggest that as an obstacle to that outcome.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The child’s circumstances for the future can be seen in two parts: first there is the next 18 months while she completes her primary schooling and thereafter there is her secondary schooling.
If she were to continue to live with her mother she would complete her primary schooling in Cairns which is what she has said she wants to do by reason of the advantages she sees that would give her. In that event, the status quo would be maintained into the shorter term and there would be little change to her circumstances. She would have the same environment, attend the same school, have the same friends and pursue the same activities that are all part of the fabric of her life at present. It would mean she would be separated from her father and extended family in the Torres Strait and that would be a loss but she would have regular visits, consistent with her mother’s proposals or as otherwise ordered.
If she were to move to live with her father, on the other hand, this would represent a considerable change for her. She would initially join her father on D Island until the house is available on Y Island, she would have a change of school [possibly a further short term change by going to school at D Island], there would be new friends and activities and so on. Significantly, she would be separated from her mother who has been, and remains, her primary attachment figure. Not yet 11 years of age, she is still of relatively tender years and this separation and the inevitable loss is a significant factor. That said, it is the assessment of the reporter that she would make the adjustment to the change and that is accepted. It would be important of course that she did make regular visits to her mother. Her father’s application proposes that and orders would be made providing for it.
There is a suggestion he would not be supportive of the child’s relationship with Ms Moses or trusted to see visits occurred and while that is an understandable submission in light of some of the evidence he gave, I am satisfied that with these proceedings over and his obligations recognised Mr Barton could be relied upon. That the child should be supported in her relationship with Ms Moses and make regular visits to her has the support of Ms M, it has the support of the child’s birth parents, it has the support of the maternal birth grandparents, and if Mrs S’s comments are any indication it would also have the support of the Y Island community.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
On either outcome there is no question but that orders should provide for the child to spend time regularly with each parent. On either outcome there will be practical difficulties and expense involved in the child doing so which is the inevitable result of the distance between her parents’ residences and the high costs of remote area travel. While both Ms Moses and Mr Barton both earn income and have partners who earn income, there is no suggestion that either are in a strong financial position and it can be said with reasonable safety that each would have to budget for and make sacrifices to meet the added costs that travel entails. Their proposals about the future differ but of course they each propose there be regular visits and so it can be inferred they are each prepared to do whatever it takes to see the child is able to spend regular time with the other.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
[(6) For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)to develop a positive appreciation of that culture.]
Both parents were born in Papua New Guinea but both were taken at an early age to different Islands in the Torres Strait and both were brought up in the Torres Strait Island culture. The child has been brought up in Cairns and not on the Islands. From one perspective, there is nothing to distinguish the circumstances of one parent from the other; in other words, in a broad sense each parent could be seen as able to maintain the child’s connection to Torres Strait Island culture and to develop a positive appreciation of that culture.
But there are distinctions arising from the parents’ and the child’s circumstances. Ms Moses may herself have been brought up as a Torres Strait Islander, in particular on E Island, and it is acknowledged that she teaches Torres Strait Islander culture at the school where she works. But it is Mr Barton who can provide to the child the culture of Y Island which is where her bloodline heritage lies and where her extended family identify and belong. There could be no doubt that he would maintain for her a connection with that Island’s culture and her family bloodline, support and encourage her to explore her culture, and develop within her a positive appreciation of it. Although Ms Moses can offer her connection to the wider Torres Strait Island culture and develop a positive appreciation of it from that perspective, she cannot offer the child that.
(j) any family violence involving the child or a member of the child’s family
This has been discussed already in that mention has been made of the current domestic violence order against Mr B. It is noted that Mr Barton takes no objection to his presence in the child’s life and while it is difficult to predict what might occur in the future ultimately this factor does not assume any meaningful significance. More to the point, it is not a factor that I weigh against Ms Moses’ application despite some uncertainty about past circumstances.
(k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is an order against Mr B, as already discussed.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I shall refer to this shortly when it will be necessary to mention the proposal of the ICL, adopted by Ms Moses, of deferring the decision about where the child will attend secondary school to allow for discussion, mediation or further proceedings if not agreed.
(m) any other fact or circumstance that the court thinks is relevant
There is nothing further of relevance.
Parental responsibility
It is agreed Ms Moses and Mr Barton are to have equal shared parental responsibility. There is nothing to suggest that is inappropriate and an order will be made accordingly subject to one reservation to be mentioned shortly.
Equal time
It follows that it is necessary to consider whether it would be in the child’s best interests and reasonably practicable for her to spend equal time with each of them. But an equal time arrangement can be dismissed as not reasonably practicable in these circumstances given the distance between the parents’ residences.
Substantial and significant time
It is then necessary to consider whether it would be in the child’s best interests and reasonably practicable for her to spend substantial and significant time [as defined by the Act] with each parent. Again that can be dismissed as not reasonably practicable given the distance between residences.
Conclusion – best interests
It remains to determine what is in the child’s best interests according to the framework of orders proposed by Ms Moses and Mr Barton. It is not an easy decision given the mix of important considerations that have to be considered and weighed. The ICL submits the child’s best interests would be served by her remaining with Ms Moses and orders being made as set out earlier. Yet while I have weighed and considered that outcome I find myself ultimately unable to agree and it is my assessment that the weight tips in favour of the child living with her father and spending time as regularly as is possible in the circumstances with her mother.
There are powerful considerations weighing in favour of the child remaining in the care of Ms Moses. She has been brought up by her since she was an infant, she regards her as her mother in every sense, the child loves her and is closely attached to her, Ms Moses has fulfilled her responsibilities as a parent by her care, encouragement and support, and the child has developed extremely well in her care. Ms Moses offers her continuity with her schooling, which is the child’s preference, with friends and general environment and all the stability involved in that at an important time of her development. If her father was not a suitable carer or he was not up to the task of looking after her properly the scales would tip decidedly in Ms Moses’ direction and the child would remain living where she is despite the consequences of not having readily available to her the particular heritage, close association and easy identification with her culture as a Y Islander.
Yet that is not the case. He is a good father and she has also had Mr Barton’s love and support since she was an infant, she also regards him as her father in every sense, she loves him and she is attached to him. It may very well be, and it is accepted, that the reporter’s assessment to the effect that Ms Moses is her primary attachment figure still prevails and her time on Y Island with her father did not alter that, but she is attached to her father nonetheless. Mr Barton has fulfilled his responsibilities to the child as a parent by his support and through his care he has also contributed to the way she has developed up until now. If those matters were all there were to it the cumulative weight of these kinds of considerations might be seen as tipping in Ms Moses’ favour, particularly given the continuity and stability she offers along with the child’s preference to finish her primary schooling in Cairns over the next 18 months.
But the scales tip back in the other direction to favour Mr Barton, in my assessment, by reason of important core essentials that he offers to the child that Ms Moses cannot provide for her. I refer to the experience of her heritage and culture as a Y Islander, as distinct from wider identification as a Torres Strait Islander, and the self-esteem, pride and sense of belonging that comes from her easy identification and acceptance within the community and part of the extended family which is her heritage. It is her father who was given the responsibility for her upbringing within the accepted and widespread custom of Kupai Omasker throughout all of the Torres Strait and it carries with it community and family expectations and responsibilities to be fulfilled. It is in the child’s interests that fact of her life be recognised and respected. As already noted, if Mr Barton were a person incapable of looking after her properly or there were some shortcoming in what he could offer her in the way of care and guidance, it may be a different matter and the expectations that arise from Kupai Omasker would have to give way to ensure the child was cared for elsewhere. That very contingency seems, in any event, to be seen as proper as the views of the birth parents and Mrs S indicate. That is not the situation here, while there would be a significant loss for her in leaving Ms Moses’ care, the child would make the transition to her father’s care. In my opinion it would be in her best interests overall to live according to that arrangement.
In so deciding I trust it has been made plain that I recognise the child wants to stay at her Cairns school for the next 18 months before going off to boarding school and it is recognised that her view about this was assessed as well reasoned. But beyond 18 months in Ms Moses’ care there is no certainty she will be able to pursue her preference for school at X. More than that, it is very short period of time to sweep aside the implications for her of not following the custom of Kupai Omasker and not seeing her father is put in the position of fulfilling the responsibilities he took on when he received her as a newborn baby to bring up.
I trust it is also apparent that I recognise that some of Mr Barton’s statements and actions reflect a reluctance to properly recognise Ms Moses as the child’s mother or to appreciate the child’s attachment to her or the importance for the child of supporting and sustaining her relationship with her mother. But I think it would be wrong to see it like that and not to make allowance for the particular situation that Mr Barton has found himself in – not quite able to grasp the power of authority that would not recognise and give effect to his rights and responsibilities from the long ago giving and receiving of the child into his care. I am satisfied he will support the child’s ongoing relationship with Ms Moses with his position restored and I am also satisfied that would have the support of important people within the family such as the child’s birth parents and grandparents and the wider Y Island community.
All things considered, I am satisfied it will be in the child’s best interests for her to live with her father and to spend time as regularly as is possible with her mother.
Form of orders
Those key decisions having been made, it is necessary to say something more about the other orders to be made.
First, the orders will provide for Mr Barton to make the decision about where the child will attend secondary school. I am mindful of the proposal of the ICL, adopted by [Ms Moses], for a discussion about this between the parents next year in an attempt to agree, followed by mediation and ultimately further proceedings if there is no agreement, but in my assessment that scenario is to be avoided for obvious reasons. While the parents are to have equal shared parental responsibility, they presently have no common view about it, the event is not all that far into the future, and it is my further assessment that the child’s best interests will be served by Mr Barton taking sole responsibility for that particular decision. The orders will provide accordingly.
There is then the question of the time the child is to spend with her mother which, in the circumstances, can only occur during school holidays. For the next 18 months provision can be made for her to split her school holiday time but spend more than half of the time in Cairns with her mother. This arrangement has the obvious advantage of giving her some extra time with her mother, an important consideration, but still giving her some time with her father and extended family outside school terms. There is then the related question of the costs of travel. Nothing in the evidence suggests circumstances making it appropriate to order anything other than equal sharing of the cost involved and so the orders will provide for her mother to arrange and pay for the child to come and stay with her while her father will arrange and pay for her to return to the Islands.
But from 2010 the child’s situation will change fairly radically [unless she ends up going to the high school on D Island]. Assuming her father decides she is to board at X from 2010 – and that seems likely because that is what he proposes, she wants to go there, and Government funding will very likely be available for that purpose - if she were to spend all of any one of the holiday periods with Ms Moses inevitably there would be long periods of time when she would not see her father or extended family or return to the Islands. The parents may have a different solution to it, but from my point of view her interests would seem to be best served by the child spending half of each of the holidays from that point with each parent. There is again the related question of costs of travel between X Private School, Cairns and her home in the Islands which, if this is her situation, will be ‘complicated’ by the availability in all likelihood of Government funding. Not knowing whether that would meet the costs related to a stop over in Cairns on her way home to the Islands – first or second half of the holidays – it is difficult to draft orders now. Nonetheless, provision is made for the parents to meet equally any costs of travel not met by funding. It will be for them to discuss the detail of how it works and make the appropriate arrangements. There is no reason that cannot be done between two parents who are both proposing equal shared parental responsibility.
Turning to communication, telephone seems to be readily available [albeit at a cost] but there is still the post where letters and cards can be sent and there may even be [nothing was said of it] some email availability. Communication has not occurred to this point without some grievances, but with these proceedings over it is hoped discontent will not continue and sensible routine arrangements will prevail.
Finally, it is proposed that there be a s 65L supervision order to assist with the implementation of the orders and no objection is taken to that. It is also proposed that Ms K, in company with Mrs J, inform the child of the Court’s decision. Nor is any objection taken to that. Both are appropriate if there are the resources and can be arranged.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore
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