Nineth and Nineth (No. 2)

[2010] FamCA 1144

FAMILY COURT OF AUSTRALIA

NINETH & NINETH (NO. 2) [2010] FamCA 1144

FAMILY LAW – CHILDREN – Parenting Orders – With whom a child lives – Application brought by the child’s maternal great-aunt who child has lived with for most of his life – Where Aboriginality is a consideration – Where there was an absence of anthropological evidence – Whether proceedings should be adjourned to allow such evidence to be obtained – Where there was alternative evidence available to the Court – Parenting orders that can be made in relation to “non-parents” – Where cultural norms specific to the child need to be considered along with the Considerations in section 60CC – Whether the child’s biological mother, maternal grandmother or great-aunt should have parental responsibility of the child – Where there are significant cultural differences between the great-aunt and mother and grandmother – Where the grandmother was given parental responsibility of the child

Australian Citizenship Act 2007 (Cth)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aldridge v Keaton [2009] 42 FamLR 369
Donnell v Dovey (2010) 42 Fam LR 559
Goode v Goode [2006] FamCA 1346
Hardie v Capris [2010] FamCA 1046
Hort v Verran [2009] FamCAFC 214
Hudson & Minister for Immigration and Citizenship [2010] FCAFC 119
In Re CP (1997) FLC 92-741
In the Marriage of Tobin (1999) 24 Fam LR 635
Marsden v Winch(No 3) [2007] FamCA 1364
MRR v GR (2010) 263 ALR 368
Mulvany v Lane (2009) FLC 93-404
Neil v Knott (1994) 68 ALJR 509
Potts v Bims [2007] FamCA 394

APPLICANT: Ms G Nineth

RESPONDENT: Ms F Nineth

INTERVENOR: Ms Moldow

INDEPENDENT CHILDREN’S LAWYER: Ms Steiner

FILE NUMBER: (P)LEC 421 of 2008

DATE DELIVERED: 17 December 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 25 & 26 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Howe

SOLICITOR FOR THE APPLICANT: GJ Donaghy & Co

THE RESPONDENT: In person

INTERVENOR: In person

COUNSEL FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Mr Theobald

SOLICITOR FOR THE
INDEPENDENT CHILDREN'S LAWYER Burridge Harris & Flynn Solicitors

Orders

IT IS ORDERED THAT

1. The Application by MS G NINETH filed on 18 August 2008 and the oral application of the mother be dismissed.

1. Pursuant to s 61D(2) of the Family Law Act 1975 (Cth) (“the Act”), “parental responsibility” as defined in the Act is, by this order, expressly taken away from the parents of the child J born … August, 2005.

1. Pursuant to s 61D(1) of the Act, “parental responsibility” as defined in the Act is, in respect of the said child, by this order conferred expressly upon MS MOLDOW, the child’s maternal grandmother.

1. Without limiting the conferral upon the said MS MOLDOW of all the duties, powers, responsibilities and authority which, by law, the parents of the said child would, but for these orders, otherwise have in relation to the said child, the said MS MOLDOW shall, by these orders, be entitled to decide solely:

(a)Where, when and with whom the said child shall live;

(b)Where, when and with whom the said child shall spend time;

(c)Where, when, how and with whom the child shall engage in any activities designed to promote or enhance his understanding of his aboriginal heritage.

1. MS G NINETH shall effect the child’s transfer into the care of the grandmother MS MOLDOW by not later than 4.00pm on 20 December 2010.

1. Notwithstanding the provisions of paragraphs 3 and 4 of these Orders, the said MS MOLDOW shall:

(a) Between 20 December 2010 and 21 January 2011, facilitate the said child residing with MS G NINETH:

(i)       From 9.00am on 26 December until 5.00pm on 27^th December;

(ii)Between those hours on 1 and 2 January; 6 and 7 January; 12 and 13 January; and 18 and 19 January 2011.

(b)Facilitate time and communication between the child and G NINETH at all such times as might be agreed between her and MS MOLDOW and as the said child might reasonably request.

IT IS FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

1. Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

1. The Independent Children's Lawyer be discharged.

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Nineth & Nineth is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC421/2008

MS G NINETH

Applicant Great Aunt

And

MS F NINETH

Respondent Mother

And

MS MOLDOW

Intervenor Maternal Grandmother

REASONS FOR JUDGMENT

1. J is an aboriginal boy, born in August 2005. His family identify as Indigenous people whose country is situated in Western Queensland and New South Wales, taking in Goondiwindi, Tamworth, Walgett and Lightning Ridge.

2. J’s father had a very brief relationship with J’s mother and has had no active presence in the child’s life. Attempts by both the Independent Children's Lawyer and the parties have been made to trace the father, but his whereabouts remain unknown. The mother has not had any form of contact whatsoever with him for many years.  I am satisfied that all reasonable steps have been taken to appraise him of these proceedings. I am also satisfied that no further steps can reasonably be taken to appraise him of these proceedings.

3. It is common ground that the mother suffered from numerous issues related to alcohol and drug use, and, as a result, the child was placed into the care of his aunt (i.e. the child’s great-aunt), who is the applicant in these proceedings. I will refer to her as “the aunt”. The child has resided with the aunt almost all of his life. Conflict exists between the great-aunt and her sister, who is the child’s maternal grandmother (“the grandmother”).

4. It is, it seems, common ground that those two women each had a very compromised upbringing involving sexual assault and other forms of abuse.

5. The aunt has had, in the past, a number of admissions to a psychiatric unit. Exhibit ICL1 includes discharge notes in respect of those admissions. They relate to admissions and discharges in the year 2000. They refer variously to “drug-induced psychosis”. Her Admission Statement at the Royal Prince Alfred Hospital on 29 April 2000 refers to her as an “itinerant person” who was found “wandering around […] Street” and to her having a “long history of multiple presentations to psychiatric services – drug induced psychosis”. The same document refers to a differential diagnosis of “schizophrenia (recurrent exacerbation)”. The most recent admission revealed by that evidence is April 2000 – that is, more than ten years ago.

6. J’s family constellation is large. He has three siblings - A, born in April 2002, S born in November 2003, and N born in March 2007. The mother is currently pregnant with her fifth child, due in December this year.

7. The grandmother asserted in the witness box, that she had been the “primary carer” of A and S, and this fact was not disputed by either the mother or the aunt. Certainly, it seems clear that they have spent the vast majority of their young lives living with their grandmother. It seems that N, who, it is to be noted, is now over three years old, has predominantly lived with the mother.

8. The circumstances in which J came to live with the aunt are disputed to the extent that the aunt suggests that the move was said to be accompanied by an intention on the part of the mother for it to be permanent. The mother disputes this saying that it was a temporary arrangement until such time as she “better organised her life”.

9. A family consultant, Ms D, who prepared a Parents and Children’s Issues Assessment Report and, subsequently, a Family Report, says that resolution of this disputed matter is irrelevant to the determination of J’s best interests. I agree, save that it seems to me relevant that the mother’s, effectively admitted, incapacity to care for J at that time is a relevant matter.

10. Into this already somewhat complicated set of circumstances, must also be introduced an additional factor. The mother, in oral evidence, revealed a plan to form a permanent relationship with Mr F, who is the father of the child they are expecting in December, and that their plans involve moving to the Coffs Harbour region.

11. Issues of family violence are relevant to their relationship, as are issues relating to future stability for J in these mooted care arrangements. Orders sought by the aunt seek to prevent Mr F coming into contact with J at any time.

12. The broad context of this parenting dispute, in which the aunt seeks orders that J continue to live with her, and the mother similarly, also includes, what might be called for convenience, a “cultural divide” between the aunt on the one hand, and the mother and grandmother on the other. Central to the aunt’s life is her role in the Pentecostal faith. The intersection between those beliefs and the desire of the mother and the grandmother to immerse J in his aboriginal heritage and customs is an important element of this case.

13. Significant complications are added to the task at hand by reason of the fact that neither the mother nor the grandmother produced or relied upon any affidavit evidence in support of their respective cases. Neither of them filed a document setting out the orders that they each seek in these proceedings. Each was, and at all times has been, self-represented.

14. No expert or anthropological evidence was adduced by any party in respect of matters critical to aboriginal cultural issues, and, in particular, issues specific to the western New South Wales indigenous people.

15. I consider it necessary then, to first examine the course and conduct of these proceedings, and my decision to hear and determine the case, notwithstanding the two (significant) matters just referred to.

Why Was the Trial Heard?

The Procedural Background

1. On 24 February 2010 I made interim orders and gave ex tempore reasons in which I attempted to outline the issues relevant to the determination of J’s best interests. The limitations within which such a hearing is conducted was referred to (see eg C v C [1996] FLC 92-651) and, although the hearing on 24 February was a “First Day of trial” as that expression is used within the Family Law Rules 2004, the limitations inherent in interim parenting decisions discussed in that earlier decision are no less applicable.

2. Despite the nomenclature, on the “First Day of trial” the Court has available to it very little information – and no affidavits from the parties – by which the Court can arrive at concluded views about matters of significant conflict between the parties.  Notwithstanding that (as it seems to me very significant) impediment, the Court is nevertheless, obliged to apply the statutory Considerations, and framework more generally, to interim decisions (see eg Goode v Goode [2006] FLC 93-286).

3. Within that context the Court was, nevertheless, considerably assisted by a Parents and Children’s Issues Assessment report from Ms D. As earlier mentioned, Ms D later prepared a Family Report. It is important to note that, pursuant to orders made by me on 24 February, a number of requests were made of Ms D with respect to that later s 62G report. They include:

   d.[It] should, among other things, take account of “the child’s right to enjoy his or her aboriginal culture, including the right to enjoy that culture with other people who share that culture” and, in order to facilitate that, Ms [D] ought “receive information from [MA] (Auntie [M]), [Mr T], Mr and Mrs [O], [Mr P] and [Ms GS], all of whom reside in the [E] area and share the same aboriginal heritage as the parties to these proceedings.

   e.… receive information from Mr Ralph for the purposes of such a report.

   f.The manager, Family Dispute Services, Brisbane give favourable consideration to the s 62G family report process to be prepared by Ms [D], including as part of the assessment process:

   i.Home visits to the residences of the parties involved in these proceedings;

   ii.If at all possible, face to face interviews with the persons previously named above in the [E] region.

4. Reasons given at the time took note of a number of issues raised by Ms D as causing considerable concern to her when preparing the Children and Parent’s Issues Assessment report. For example, Ms D referred to the fact that each of the households allege against the other “verbal, emotional, psychological and physical abuse” in and about the household of the other. As observed by Ms D, the (then) four-year-old child was caught in the midst of those significant allegations and counter-allegations.

5. Particularly troubling was what emerged when Ms D asked J if he could tell her about his brothers and sisters.  He responded that he didn’t have any. When Ms D asked him about his mother, “once again [J] shrugged and indicated that he had no knowledge of his mother or siblings”.

6. In her summary in that earlier report Ms D recommended:

   Given the interview with the parties, the child, and reading the history as outlined in the file it would be correct to assume that no relationship exists between [J] and his mother. It is my opinion that [J] and his mother should spend time together as soon as possible so that a relationship can commence.

7. The aunt told Ms D that her concerns about the prospect of abuse or neglect in the household of the child’s mother and grandmother had led to the historical position in which J then found himself and those concerns founded her worries about the child spending time with his mother and grandmother. Ms D had said within the report then available:

   [The aunt] takes responsibility for [J] having no knowledge of his immediate family, yet appears to minimise the situation although she acknowledges the important of a mother/child bond, and can give no way forward in fostering that relationship…

   [The aunt] acknowledges that it is important for children to have a positive relationship with both their parents. She firmly believes that to secure his safety it is necessary to supervise contact between [J] and [the mother]. Furthermore, she believes that she should be the supervisor. Given the amount of conflict within their dynamics it is my opinion that this would not be within the child’s best interests.

8. I said at the time, and nothing which emerged during the course of the subsequent trial causes me to change my opinion, that:

   …the prospect of [the aunt] being the supervisor for any such time – given the dynamics of what I know of [the] interrelationship – would be in fact disastrous for the child … it is extremely likely, in my view, that the child would see and be exposed to overt conflict.

9. The fundamental importance of J establishing a relationship with his mother, and, indeed, his siblings and broader family, was emphasised in my earlier decision and it was pointed out within those earlier reasons that an opinion to that effect from Ms D was consistent with the Objects and Principles enshrined in the Act and one of the two Primary Considerations in determining J’s best interests.

10. Ms D said in her earlier report that, in her professional opinion, the establishment of a relationship between J and his mother and broader family should occur “as soon as possible”.

11. Ultimately, in light of the fact that findings could then not be made in respect of what were then a significant number of disputed issues emanating from the person who had been J’s primary carer, and who had taken primary responsibility for his upbringing for the vast bulk of his life, I considered it appropriate that supervision should attend the time between J and his mother, grandmother and siblings.

12. But, there were concerns about who might carry it out, particularly given the fact that the parties were living in E in western New South Wales. Ultimately, a number of named persons were ordered to be supervisors for four hours each Saturday with times agreed between the parties but commencing no earlier than 9 am and concluding no later than 5 pm.

13. On 17 June 2010, further orders were made by me which increased the time that J spend with his mother and grandmother in each alternate week from 12 noon Wednesday until 10:00am Thursday, commencing on 23 June and each alternate weekend from 4.00pm Friday to 9.00am Monday commencing 2 July 2010. Conditions set out in the order were attached to that time.

14. In addition, a number of procedural orders were made including the setting down of this matter for a two day final hearing commencing 25 October 2010. At that time a respectful request was made of the Director of Legal Aid NSW and/or the Director of Aboriginal Legal Aid NSW to give careful consideration to providing a grant of legal aid so as to enable the obtaining of psychiatric reports in respect of all of the parties prior to the final hearing and that the mother be granted legal representation in respect of the final hearing.

15. On 23 August 2010, a further order was made setting out a number of directions, made by consent, providing for the filing of affidavits and the like.

16. When the trial commenced, a number of things became apparent. First, legal aid had not been granted either for the obtaining of psychiatric reports or for the mother to be represented. Accordingly both the mother and the grandmother were self-represented at the trial. Furthermore, the directions earlier made with respect to the filing of material by each of them had not been complied with. Fortunately, the s 62G report received from Ms D indicated that resources had been made available so as to allow her to travel to E to conduct the home visits contemplated by the earlier orders.

17. However, and unfortunately, the report records that the mother accompanied Ms D to the home of Mr and Mrs Moldow on two occasions but they were not at home. Similarly, the mother accompanied Ms D to Ms MA (Aunt M’s) home on two occasions. She, too, was not at home. Ms D records that she “requested telephone numbers or addresses from [the mother] in relation to those persons that she had nominated to supervise time… however she stated she was unable to provide these. I requested information [about] Mr [T], however this too was not forthcoming”. The mother accompanied Ms D to Ms GS’s residence on two occasions. She, too, was not home. On Ms D’s return to Brisbane she telephoned Ms GS on a number of occasions but was unable to contact her.

18. Ms D was, however, able to speak with Mr Ralph, (who will later be referred to) and contacted him again on completion of her report.

19. In addition to those deficiencies, the self-representation of the mother and grandmother produced two further outcomes during the trial. First, each barely cross-examined the aunt or Ms D; I had no effective cross-examination from either of them of any witness. Secondly, a number of matters were raised, late, and with little or no notice; the mother’s intention to form a permanent relationship with Mr F and to reside together with him in the Coffs Harbour region is the most important. And, in a similar vein, the mother’s proposals (and, for that matter, the grandmother’s proposals) altered during the course of the hearing.

20. The Full Court has commented that the “vexed issues” which confront a Court when Part VII of the Act is engaged creates difficulties which “…. are particularly acute when the child is of Aboriginal or Torres Strait Islander origin” (Donnell v Dovey (2010) 42 Fam LR 559 at [73]). Here, it will be appreciated, the Court is in a particularly difficult position. There are three indigenous parties, two of whom are self represented; there are no affidavits or written proposals from either of the two self represented parties; a significant change in a fundamental part of the proposals of the mother was introduced only during the hearing and the Court has no anthropological or other such expert evidence before it.

1. No party sought that the trial be adjourned;  each wanted the central issues determined as soon as possible in J’s best interests. The tenor of the mandatory principles guiding the conduct of the child-related proceedings point to the same conclusion (see, in particular, s 69ZM(3), (4) and (7)).

2. The broad parameters of the underlying competing contentions of the parties are clear and the central issues relevant to J’s best interests had been addressed within the Court’s Child Responsive Programme and in the written Children and Parents Issues Assessment Report earlier referred to.

3. The lack of legal aid and/or legal representation for two indigenous parties engaged in a multiple-party parenting case involving a number of difficult issues is very unfortunate to say the least.  Despite the obvious disadvantages of self representation (see eg Neil v Knott (1994) 68 ALJR 509 at 510), which I very much have in mind, an attempt was made during the course of the hearing to conduct the proceedings in a manner which allowed the parties to give full voice to, and to answer, the central relevant issues. I also consider that the self representation of the mother and grandmother permitted an opportunity for the Court to make observations that might otherwise have been shrouded by legal representation. (see eg Wilson J, Atkin Lecture 2002 “The Misnomer of Family Law”).

4. All of those considerations pointed to the desirability of the trial proceeding and a determination being made as soon as possible if the absence of expert anthropological or similar evidence permitted of that outcome.

The Role of Anthropological Evidence

1. The Act makes it abundantly clear that considerations unique to this country’s indigenous cultures must be at the forefront of these parenting proceedings.  (see:  s 60B(2)(e), (3);  s 61F;  s 60CC(3)(h), (6).  See, also, generally Donnell v Dovey, above at [178]ff.).

2. In Donnell, a trial court was faced with a lacuna in the evidence similar to that here.  The Full Court said:

   [186]  Upon identifying the lacuna, we consider His Honour had two options.  One would have been to adjourn the proceedings until such time as evidence could be found to overcome the lacuna.  The other was to do the best he could with the evidence that had been placed before him.

   [187]  A rigid interpretation of section 61F may have suggested that the adjournment option was to be preferred.  On the face of the section, it is mandatory for the Court to have regard to the relevant indigenous child-rearing practice in every case involving a child of Aboriginal or Torres Strait Islander background.  If there is no evidence, or there is a lacuna in the evidence, the Court cannot fully comply with the obligation imposed by the Statute.

   [188]  However, such a strict interpretation of section 61F would be unrealistic.  In many cases there will be no evidence at all of the relevant custom or practice.  This maybe because there is no acceptable evidence available to establish the custom or practice.  Alternatively, there may be no evidence because no party asserts it to be of any relevance.  For example, the child may have been brought up in a family where all meaningful attachment to indigenous culture has been lost.

   [189] Although the Court, especially since the advent of Division 12A of Part VII, is entitled to insist on further evidence being sought, we do not consider the Federal Magistrate erred in deciding not to adjourn the proceedings and electing instead to do the best he could with the evidence he had available.

3. There is, though, a distinction between, on the one hand, receiving expert anthropological (or other) expert evidence and, on the other hand, taking into account “in a tokenistic or meaningless way” the important issue of indigenous culture (see eg Hort v Verran [2009] FamCAFC 214, especially at [107], [108]; [120]).

4. In Donnell, it was observed:

   [229]   The views of the Full Court in Hort & Verran resonate with those previously expressed by a former Indigenous Family Liaison Officer of the Family Court of Australia, Ms Josephine Akee.  The following is an extract from Ms Akee’s paper presented in 2005 at the International Forum on Family Relationships in Transition (reproduced in (2006) 75 Family Matters 82):

   One of the things that our people have been highly concerned about is that “wrong people” are being brought in to give special or expert (cultural) advice.  It has been brought to my notice that anthropologists have been brought in to talk about and throw light on our Indigenous culture.  Our people are saying, “These are white fellows that have got some good education at some university, but they are not us.  “We have to have our own people.”  It comes back again to the fact that people (Indigenous) might not have the formal qualifications – but I would argue any time that what’s important is the formal qualifications according to your culture and that’s something that definitely needs to be recognized.

   [230]   In the present case O’s sister did not purport to be an elder of her people; however, the evidence she gave on cultural issues was not challenged and was accepted as authoritative by his Honour.  The difficulty with her evidence was not that it was not given by an anthropologist or based on “well recognised peer reviewed research”, but that it failed to address fully what appeared to be necessary exceptions to the custom about which she had given evidence. 

5. Further, as also observed in that case, Division 12A of the Act provides the possibility of a “rich source of information …. available to the Court”, by reference to, in particular, s 69ZX(3). (See [213]ff.). Particularly relevant here is what was said In Re CP [1997] FLC 92-741 at 83,987-988 which is quoted in Donnell and will be referred to in detail below.

6. Here, there is also evidence (contained in the report from the Family Consultant Ms D) from Mr P who she describes as “an articulate, sincere and caring aboriginal man with a tremendous amount of knowledge of his culture. Mr P reported that he is a language teacher at the local school…”. Ms D says:

   Mr [P] was very passionate and knowledgeable about his culture. He explained in great detail [J’s] position within his clan. Additionally, he suggested he is concerned that [J] is not being exposed to his culture and will grow into an aboriginal man unable to identify with that culture. Mr [P] further explained that within his cultural structure each person has a place, for example, his children [will] be the future elders to [J] and his siblings. Mr [P] pointed out that this structure is something that is taught and learnt over time, as is all cultural rites and history.

7. Having regard to those principles, I considered that the trial could proceed and, in so far as “anthropological” or other expert evidence is concerned, I consider the evidence of Mr P and reference to earlier decisions of the court (see s 69ZX(3)) provide a sufficient evidentiary basis to allow this important issue to be considered properly and adequately.

Applicable Principles

Objects, Principles and Considerations

1. Part VII of the Act mandates the framework within which parenting orders must be decided, including specifying matters which must mandatorily be taken into account. That framework has now been discussed in numerous decisions of the Full Court: see eg Goode v Goode [2006] FamCA 1346; Donnell v Dovey, above;  Marsden v Winch (No 3) [2007] FamCA 1364; Mulvany v Lane (2009) FLC 93-404 and, recently, the High Court in MRR v GR (2010) 263 ALR 368. Other decisions have considered aspects of those requirements including, for example, the expression “meaningful relationship”.

2. I have attempted to collect the principles flowing from those authorities, as I understand them, most recently in Hardie v Capris [2010] FamCA 1046. I make it clear that I am here applying those principles, as understood by me, as they are set out in that decision (at [44] to [86]).

3. In addition, as earlier referred to, cultural issues form a crucial component of the ultimate decision to be made here noting, of course, that:

   [184]   Section 61F does not say that the outcome will be determined by application of the relevant kinship obligations and child-rearing practices, but the court must have regard to them.  In our view, this can only be seen to be done if findings are made regarding those obligations/practices and adequate reasons are given to explain why a decision has been made that either follows or departs from them.  We accept this can be done without the court making express reference to s 61F, but we consider it would be desirable that the section is at least mentioned, if not discussed.  (Donnell, above).

“Parents” and “Non-Parents”

1. The ICL submits that the grandmother should have sole parental responsibility for J and, as a result, she should determine when, and with whom, J lives.  This proposal raises, at the outset, two central issues, one of which also arises from the proposal by the aunt that she should have parental responsibility for J and that he should live with her.

2. First, neither the aunt nor the grandmother is a “parent” of J.  (See In the Marriage of Tobin (1999) 24 Fam LR 635. I note that, recently, in Hudson & Minister for Immigration and Citizenship [2010] FCAFC 119, 15 September, 2010, the Full Federal Court held that the word “parent” – as used specifically in s 16(2) of the Australian Citizenship Act 2007 (Cth) – is not so confined.  I proceed on the assumption that, for the purposes of the Family Law Act, Tobin still represents the law – a conclusion which, in my view, is expressly left open by the Full Federal Court.

3. Secondly, those proposals might be seen as illustrative of what earlier cases have had to say about significant differences between the child-rearing practices or “norms” in Aboriginal cultures and those applicable in Anglo-European cultures.

4. It is erroneous for a court to treat a “non-parent” as a “parent” in so far as the latter word is used, for example, in s 60B and s 60CC of the Act (Donnell at, eg, [100]ff.).  That, though, is not the same as saying that the case presented by a “parent” will always, or necessarily, predominate over the case for best interests presented by a “non-parent”.  (see eg Potts v Bims [2007] FamCA 394 at [8] per Moore J, cited with approval in Aldridge v Keaton [2009] 42 FamLR 369 at 394; Donnell, above, at [101]).

5. The Court is required by the Act to apply a presumption when a parenting order is under consideration that it is in the best interests of the relevant child for the child’s parents to have equal shared parental responsibility for that child (s 61DA(1)). This section, too, is confined to “parents”. Here, it is plain that parental responsibility should not be shared (either equally or at all) between J’s mother and father – J’s father has played no part in his life nor, on the evidence, is it likely that he will ever do so.

6. Section 64B defines parenting orders to include orders whereby the Court allocates parental responsibility.  Section 64B(2)(d) contemplates, in terms, the possibility of “two or more” people sharing parental responsibility and also refers to “persons” sharing parental responsibility (as distinct from parents).  Parenting orders, including orders for “parental responsibility” can, then, be made in favour of non-parents as well as parents.  (Donnell at [82]).

7. Section 65DAA, which applies when parents are to share parental responsibility equally, requires, mandatorily, the application of the process defined in that section.  Further, “…. the making of an order can only be considered if the findings mentioned [ie the findings in each of s 65DAA(1) and (2)] are made” and this Court’s power to make parenting orders in those circumstances is “ …. conditioned [on those findings] much as it is where a jurisdictional fact must be proved to exist”.  (MRR v GR (2010) 263 ALR 368 at [13]).

8. However, the section “…. can have no application in circumstances where an order is made for a parent to share parental responsibility with a person who is not a parent”.  (Donnell at [86]). Nor, in my respectful view, can the section have any application in circumstances where a Court, is minded to make an order (pursuant to s 64B) for sole parental responsibility in favour of a non-parent.

9. In this case, counsel for the aunt, Ms Howe, relies upon specific comments in Donnell (eg at [111]). The report writer in that case “did not …. depart from the fundamental proposition … that [the child] should be living with a biological parent”. It is contended on behalf of the aunt that the report writer in this case, Ms D, fell into the same error and, further, that Ms D did not identify any specific research in respect of assertions made about the extent to which immersion in culture is consistent with J’s best interests (cf Donnell, at [332]).

10. I do not accept that submission.  I consider that Ms D carefully weighed the benefits and detriments of the “competing households” and properly took account of the “indigenous issues” relevant to her recommendations.

Anglo-European “norms”

1. Mr Theobald, counsel for the ICL and Ms Howe, counsel for the aunt, make reference to, respectively, the articles by Professor Dewar and Mr Ralph, extracts of each of which appear in Donnell.  Each is important and should be repeated here. I specifically rely upon each (see s 69ZX(3)).

2. First, though, it is also important to the issues in this case to repeat what was said by the Full Court in In ReCP [1997] FLC 92-741 at 83,987-988:

   [Aboriginal] children are born into a world of kin which is so vast they will probably be meeting new kin when they are old men and women. For an Aboriginal child, this network will become one of the two key ways in which their identity as a person is constructed. The other is through relations to country. Both are able to link the child to its ancestors and thus, by implication, to its descendants.

   …

   Disadvantages of not bringing up an Aboriginal child within his or her own community of kin and within at least frequent visiting distance of country with which he or she is identified might include:

   •  the loss of relations with a vast range of kin who will perform a wide variety of roles associated with social relations, emotional and physical support, educative knowledge, economic interactions and spiritual training. This is as true of Aboriginal people from communities in “settled Australia” whose continuities of tradition have in certain cases been greatly disturbed by their colonial histories as well as those in more remote areas;

   •  loss of knowledge which stems from the social interactions mentioned above;

   •  ambiguities in or loss of identity with one’s own kin and country, features I understand as essential to identity from an indigenous point of view, and which are much more specific to certain people and place than is the broader categorisation of “Aboriginal” used by the wider Australian society and which does not necessarily recognise the specificity of indigenous identity…

   …

   It is not at all unusual for Aboriginal children to move freely, even frequently, although the legal system tries to control and restrict this. Such movements, except for infants, are almost always with the willing consent of the child and are frequently initiated by the child who has a right to express their own desires with regard to residential arrangements. Moves can be occasioned by many factors, including the desire for change, to reside with paternal kin for some time, to move away from conflicts — in other words, many of the same reasons adults express as well for moving around. These movements between kin, and often between communities, are seen as important ways in which children acquire their understandings of the ways in which kinship and country relationships are lived out. They are thus not a sign of disruption as they might be interpreted by non-Aboriginal people but are an important factor in socialising children…

3. I also rely upon the information contained in the article by Professor Dewar (a former chair of the Family Law Council) which appeared in (1997) 19 Adelaide Law Review 217 and is referred to by the Full Court in Donnell at [324]:

   In defining kinship, or its conceptions of relationship, Australian family law reflects its Anglo‑European heritage. So, when it comes to constructing legal relationships around children, the law tends to assume a nuclear model: that is, that a child will have two parents for legal purposes, generally those who are its biological mother and father. These are the people who automatically have legal status with respect to the child, a status that they never technically lose. Thus, s61C of the Family Law Act 1975 (Cth) states that each parent of a child has parental responsibility for it, and that this responsibility survives any changes in the relationship between the parents. “Parental responsibility” for the child includes all duties, powers, responsibilities and authority a parent might have in relation to a child. The recent changes to the Family Law Act, which introduced the concept of shared and continuing parental responsibility between biological parents, have, if anything, served further to entrench this nuclear model in the law.  Thus, according to the principles underlying the new Part VII, contained in s60B, children have a right to know and be cared for by both their parents, but not by other significant figures in their lives; and parents (but not others) share duties and responsibilities for the care, welfare and development of their children, and should agree about their children’s future.

   …

   Other departures from the nuclear model can be found in the s68F(2) checklist, which requires a court to take account of a child’s relationships with persons other than its parents in making decisions about the child’s best interests.  Thus, in addition to paragraph (f) already discussed, paragraph (b) refers to “the names of the relationship of the child with each of the child’s parents and with other persons”; paragraph (c)(ii) refers to “the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from … any other child, or other person, with whom he or she has been living”; and paragraph (e), which talks of “the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs”.  Finally, the statement of objects underlying Part VII talks of the child’s right of contact with parents and with others “significant to their care, welfare and development”.  However, each of these provisions has to be seen as a qualification of, or as an exception to, a basically nuclear, two‑parent model of parent‑child relations.

   In general, then, the Family Law Act and the child support regime enshrine particular assumptions about relationships between children and parents.  While these may seem natural to many members of the dominant European culture, they become, in the context of Indigenous cultures, a serious barrier to the sort of increased flexibility to which the [Australian Law Reform Commission] refers.  In the case of support obligations in particular, the current law amounts to a clear breach of the principle of substantive equality, stated to be a cornerstone of multiculturalism, in the sense that the current law “unintentionally act[s] to disadvantage certain groups of Australians”.  Yet it is the supposed naturalness of these assumptions, and the powerful ideology of the nuclear family surrounding them, that renders them invisible to many.  From the point of view of the Indigenous community in particular, this nuclear model doesn’t fit at all well with Indigenous child-rearing structures or practices.

   …

   Although practices vary between Indigenous groups, it seems generally true that conceptions of kinship and of good child‑raising practice are significantly different from the nuclear model.  Kinship relations are constructed in different ways from Western kinship systems, with the term “mother”, for example, often being used to cover a much wider group of people than the biological mother.  Kinship systems amongst many Indigenous groups are classificatory, which means that a much larger proportion of the social group, perhaps all members of the group, are accounted for in terms of kinship.  Western kinship systems, by contrast, consist of a much narrower range of relations.  As Bringing them Home says:  “By privileging parents and relegating the rights of other family members, the Australian family law system conflicts with Aboriginal child‑rearing values”.  In addition, child‑rearing practices often differ markedly:  whereas non‑Indigenous culture tends to emphasise permanence and stability as positives for children, Indigenous culture sees movement of children, either geographically or between or within kinship groups, as beneficial.  As Bringing them Home argues, “by privileging stability of residence, the system similarly entrenches a bias against Aboriginal practice of mobility of children amongst responsible adults and their households”.

1. The Full Court in Donnell went on to cross refer to the Bringing Them Home (1997) Report.  The Full Court says, “as is well known [The Bringing Them Home Report] was the Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families.”  The Full Court then refer to the fact that the report was critical of the way in which some cases involving indigenous children have been dealt with in this Court and quotes from page 486 of that report as follows:

   The Family Court clearly has preferred the biological parent over a disputant extended family member in making custody (now residence) orders, although there is no presumption that that should be the case. Nevertheless, the Court, at least in reported cases, has yet to prefer an Indigenous child’s grandmother, for example, over the child’s natural, non‑Indigenous father or mother. Moreover, section 61C recognises only the parental responsibility of each of the biological parents and fails to recognise the child‑rearing obligations of others.

   By privileging parents and relegating the rights of other family members, the Australian family law system conflicts with Aboriginal child‑rearing values.  In Aboriginal societies child‑rearing responsibilities are shared.

   [In Arnhem Land, NT and Mornington Island, Qld] it was the responsibility for an Aunt or Uncle to grow up the child of their sister or brother.  It is a belief amongst Aboriginal people living in these areas that because an Aunty or an Uncle are not too emotionally involved with the child that they are able to make the best decisions for his education needs and the future role of the child in becoming a responsible member of the Aboriginal family group (Randall 1982 page 342).

2. The article by Mr Ralph who, as the Full Court in Donnell v Dovey observed, was the Director of Court Counselling in this Court’s Darwin Registry, is entitled “The Best Interests of the Aboriginal Child in Family Law Proceedings” and was published in the Australian Journal of Family Law ((1998) 12 Australian Journal of Family Law 140).  Again, I rely upon it and, again, it is in my view important to quote the passage extracted by the Full Court in Donnell in these reasons:

   Family assessment as employed generally by counsellors is stepped in the traditions of western psychology, with its emphasis upon the individual, and based upon modern Anglo‑European notions of social and family organisation.  The prominence of psychological theory and clinical practice based upon the study of small family groups and individual needs runs counter, however, to an effective understanding of the collectivist nature of Aboriginal family life.  Of particular concern is the possibility that counsellors who have limited knowledge or experience in working with Aboriginal families may produce reports that do not adequately address the issue of the child’s cultural identity and consequently the report may fail to attend to vital cultural issues affecting the child’s best interests.  This possible deficit in cross‑cultural understanding is one of the issues that the court’s cultural awareness programme seeks to address both through the appointment of Aboriginal Family Consultants and through training of counsellors in this area.

   In contrast to the counsellor’s view Aboriginal people are likely to argue that children have the ability to effectively attach themselves to many carers in the course of their “growing up”.  In many indigenous cultures multiple, serial attachments are the norm and are not regarded as necessarily harmful to the child’s development and long‑term adjustment.

   The fluid nature of Aboriginal child‑care arrangements and associated parenting practices was recently noted in an anthropologist’s report to the court regarding an Aboriginal child.  The report stated:

   It is not at all unusual for Aboriginal children to move freely, even frequently (between kin and community).  These movements … are seen as important ways in which children acquire their understanding of the ways in which kinship and country relationships are lived out.  They are thus not a sign of disruption as they might be interpreted by non‑Aboriginal people but are an important factor in socialising children.

   The Aboriginal perspective is based upon a collectivist view of family and social life that sees responsibility for the growing up of children invested in many people.  According to this view children come to trust in the capacity and commitment of a multitude of people to care for them and nurture them through childhood and into adulthood.  By this means children come to take their place in Aboriginal society where responsibilities and obligation to family and kin are deeply rooted and pervasive.

   From this perspective the disruption caused to a child’s primary attachment, for example, is out‑weighed by the benefits arising from the child’s exposure to a broader and deeper network of family and kin to whom the child will eventually form strong attachments.  The implicit expectation is that children will grow up with maximum exposure to their heritage and take their place within Aboriginal society.  From the stand‑point of a traditional Aboriginal family living in a rural or remote community this change would ensure the family’s spiritual and ceremonial obligations to the country would be maintained.  In this setting cultural and family considerations are highly important in determining the child’s best interests.  For Aboriginal people a desirable outcome of such deliberations is the preservation and promotion of Aboriginal culture, particularly its transmission to the next generation.

   Consideration of the child’s best interests from an Aboriginal perspective is likely to be influenced by the broader consideration of how Aboriginal culture and family life is to be promoted.  That is, individual and collective needs are interdependent and as such the needs of the individual child do not take precedence over the needs of the collective.  For Aboriginal people, whose culture has been ravaged by colonisation and dispossession, the struggle to preserve and maintain cultural integrity is on‑going and of the utmost importance.  In many instances this may mean that the interests of the individual or child may be a subordinate consideration to that of the best interest of the collective group.  This viewpoint does not sit comfortably though beside the strict adherence of the Family Law Act to the paramount consideration of the child’s best interests.

3. What emerges, in my view, is that the application of the mandatory requirements of the Act applicable to parenting cases involving indigenous children requires the Court to think outside of Anglo-European “norms” in the application of what might otherwise be familiar precepts. At the same time, the Act requires a court to apply to those same children the Considerations that are applicable to indigenous and non-indigenous children alike (s 60CC).

Summary of Issues

1. The matters just discussed can be seen reflected starkly in the central “cultural divide” referred to at the outset of these reasons. 

2. The aunt predominates her Christian/Pentecostal faith ahead of her own Aboriginal identity and the importance of that for J.  The aunt is a member within that religion and “lives it” in the sense that it provides the framework for her values, moral judgments and the cultural milieu within which she has raised, and would continue to raise, J.  Examples emerged during the hearing. One is that the aunt would not countenance J attending a non-Christian school despite the fact that it would mean his attending a different school to his siblings (if all continued to live in E).

3. It is clear that each of the mother and the grandmother identify much more strongly with their Aboriginality and Aboriginal culture.  I am not convinced that the same applies – at least on an intellectual level – to Mr F, but I note that he shares the same cultural heritage as the mother and grandmother.

4. Obviously the difference between the parties just described is central to an issue which the Act mandates is vital to a decision in this case.

5. Equally, the division of care responsibilities among differing members of this family can be seen to have its origins in the compromised upbringing of both the aunt and the grandmother, as well as issues relating to alcohol abuse on the part of the mother and, thus, to issues not unique to indigenous families.  But, it is also related, as it seems to me, to the role – extant in Aboriginal cultures as the earlier quotations make clear – of multiple carers within a family group, the extended notion of family, and the role of extended family in child rearing.  Here, the grandmother has played a very significant role in providing care to all of the children and the aunt has been the predominant carer for J. 

6. Significant conflict has attended the relationship between the grandmother and aunt from time to time. Equally, significant conflict has attended the relationship between the mother and the grandmother (i.e. her mother) from time to time. 

7. As I said during the trial, each of the three women in this case present as intelligent, thoughtful women each of whom have, in their own way, needed to deal with significant issues in their past arising from family violence, alcohol abuse and the like.  Their journey has been a difficult one. 

8. The attitudes that each of them currently reflect (largely) the manner in which each of them have fashioned for themselves a life that best copes with their compromised pasts.  Each of the women has strong views.  As I said during the course of the hearing, none of those views seem to me to be irrational or improper, but they manifest themselves in behaviours such that a conclusion can be reached that neither “side” of the divide is willing to readily facilitate a relationship with the other “side”.  Those strongly held attitudes also affect, in my view, the capacity of each of the women to do so.

9. These issues clearly have resonance in the statutory Considerations to which the Court must have regard to in arriving at a decision about J’s best interests. 

10. For example, the issues just referred to might be seen to be referable to the nature of J’s relationship with his mother and other persons significant to his care welfare and development;  the willingness and ability of the mother to facilitate a close and continuing relationship between the child and other persons who are significant to his care welfare and development;  the willingness and ability of the grandmother to promote an appropriate relationship between J and the person who has been his carer for a large part of his life;  and the effect of any changes to the environment with which J is familiar and the likely impact that that might have on his emotional and psychological health.

11. It will have been seen that reference is made to, for example, “the willingness and ability of the mother to facilitate a close and continuing relationship between the child and other persons who are significant to his care welfare and development”. It will be appreciated that this is not the wording of s 60CC(3)(c); that sub-section confines itself to that willingness and capacity in “parents” and speaks of a facilitating a relationship with the other “parent”.  However, the terms of s 60CC(3)(c) and other sub-paragraphs like it just quoted are, in the circumstances of this case, plainly relevant as Considerations by reason of s 60CC(3)(m) and the expressions are used in that sense.

Family Violence

1. Evidence before the Court raises concerns about the risk of harm to J - in the sense referred to in s 60CC(2) - by reason of the potential that he will be subjected to family violence in the household of the mother. 

2. In particular, concerns are raised about the mother’s partner, Mr F, a witness who did not impress me when giving evidence.  Mr F’s criminal history extends back to 1994.  He has been convicted (in 2005) of obtaining money by deception and (in 2008) of common assault, larceny and damaging property as well as an alcohol driving offence.  A number of Apprehended Violence Orders have been made against him including on 23 May 2008 and 24 June 2009.  It is of very significant concern that the offence of common assault was committed against the mother. Exhibit ICL1 includes a Police Statement by the grandmother that refers to an assault committed by the mother on the grandmother wherein the mother “hit [her] in the back of the head a couple of times …. driving me back, inside the back door.  One I was inside I locked the door.  I saw her kick the back door.  This has broken the door.”

3. The grandmother goes on in that statement (dated 16 June 2007):

   When [the mother] came into the house she started abusing me.  I couldn’t understand her at the time and I didn’t know what she was saying.  I thought she was under the influence of something.  I stood my ground in the kitchen area.  We had the mop handle in between us.  She grabbed it and she swung it at me.  I put my hands up to stop her from hitting me with it.  I grabbed one end of it and we were wrestling for the handle.  While we both had a hold of the handle she was striking me with her closed fist and grabbing my hair.  I was struck on the right hand as a result.  This caused me pain.  I was scared that she might hit me again with the mop handle.

4. This incident occurred when the children were present in the home.  The Police Statement given by the grandmother also refers to Mr F coming “to the front of the house and [that he] started abusing and yelling at me”.

5. The same Exhibit reveals an incident occurring in June 2009 where the mother alleges that Mr F “punched her on the chin”.  A separately tagged item in Exhibit ICL1 (No. 14) refers to the mother being a front seat passenger of a vehicle when Mr F was apprehended for drink driving and where her presence in the vehicle was a breach of an Apprehended Violence Order taken out earlier on her behalf.

6. Also of particular significance is an incident occurring in July 2010, when the grandmother called the police in respect of an incident which (as she perceived it) involved violence towards her daughter.  That incident saw the grandmother intervene actively on the children’s behalf - removing them from the mother’s home and calling the police (despite the fact, it might be noted that her daughter and Mr F, were involved).  It is also to be noted that the grandmother has, in 2006, enlisted police assistance and preferred assault charges against her own daughter.

7. The matters just described cause significant concern about the stability that might be afforded to J in the full time care of his mother, and all the more so in circumstances where she says she intends to form a permanent relationship with Mr F and for them to live in Coffs Harbour ‑ a significant distance from E, where the grandmother is residing ‑ in a household of four young children and a new baby. 

8. Plainly enough, those concerns relate to the Primary Consideration just referred to. But, they also relate to the parenting capacity of the mother (and her prospective live-in partner) as well as the “maturity” of the mother and her partner and the attitudes to the child and the responsibilities of parenthood demonstrated by the mother.  All are important Additional Considerations.

9. As the evidence emerged during the course of the trial, including, in particular, the evidence just described, yet another issue arose that was not contained, as such, in any written material before the Court, and of which none of the parties had notice.  Counsel for the Independent Children’s Lawyer raised in address, for the first time, the making of an order for sole parental responsibility in favour of the grandmother.  That possibility had not been put to any party during their cross-examination.  Accordingly, an opportunity was afforded to the parties to each go back into the witness box such that evidence could be received from them and so that they had an opportunity to comment upon any such proposal. 

10. The proposal was, it is fair to say, embraced by the grandmother.  I consider that the mother reluctantly did so.  By that I mean I perceived her to readily embrace any proposal that would see J returned to his siblings, for him to be removed from the aunt’s care and for there to be a reduction in, or elimination of, restrictions imposed upon her time with him, but retaining a preference for parental responsibility to rest with her.  Unsurprisingly, the aunt, when given the opportunity, opposed that course of action.

11. The evidence (such as it was) was replete with criticisms by one “side” of the other. 

12. I referred earlier to Ms D comments about Mr P in the context of providing information about culture. Mr P is also reported by Ms D as making a number of comments adverse to the aunt. He had supervised and facilitated three visits between the aunt and J.  He described the aunt’s presentation and his dealings with her to Ms D as “abusive and hostile”.

13. Mr P was not a deponent in these proceedings. Nor were arrangements made to receive oral evidence from him.  He was, then not cross-examined. The report of his comments contained within Ms D’s report is the only evidence I have from him. That report gives me the strong impression that he is a person partial to the mother and the grandmother.  I consider that his comments have about them a strong flavour of partiality and, equally, antipathy towards the aunt.

14. I propose in those circumstances to attach no weight to his evidence insofar as it applies to, or purports to describe, the aunt or his interactions with her (noting that the aunt denies the descriptions of her behaviour as given by Mr P to Ms D).  I do, however, propose to attach weight to the evidence of Mr P, unconnected with the aunt and confined to those matters earlier referred to.

The Evidence of Ms D

1. I place particular reliance upon the evidence of Ms D.  First, I reiterate the finding made earlier; I consider that Ms D did not proceed from an assumption in the manner contended by counsel for the mother. 

2. I consider that Ms D observations of J’s prospective carers to be important, primarily because they essentially accord with impressions I gained of each of those people (admittedly, while in the artificial confines of the courtroom).

J’s Potential Carers

1. The aunt was described by Ms D in the following terms:

   [Ms G Nineth] presents as an Aboriginal woman of simple means, who places little emphasis on her Aboriginality, however places a great importance on her religious beliefs.  [The aunt] identifies “the Lord” as her partner and suggested that between [J] and the Lord she has little room for anything else in her life.

2. Ms D made a number of observations of the aunt’s home:

   … [the aunt’s] residence was basic.  I observed little food, [J’s] room was basic, with a bed, side-table and no toys or children’s books.  I asked [the aunt] who resides in the home.  She explained that at present just herself and [J], due to [Mr Nineth] being away studying […] at a bible college […].  It was reported he will be away for the rest of 2010.

3. A number of observations need to be made about this paragraph.  First, it emerged during the course of the trial that the aunt had an additional refrigerator in which stores of food were kept.  Secondly, and I consider significantly, neither the mother nor the grandmother had any specific complaints about the level of basic day to day care afforded to J by the aunt.  I place no weight on the observations of Ms D to the extent that they suggest a failure of basic care.

4. Further observations from Ms D reinforce the importance of the aunt’s faith and its place in what I have conveniently, if perhaps crudely, described as the “cultural divide” between the differing “sides” of this parenting dispute. 

5. There was, during the course of the hearing, an assertion made that another child or children were living in the household of the aunt emanating from a comment in Ms D’s report.  A clear picture did not emerge – for me at least – of the current situation in the aunt’s household.  I found the aunt’s evidence in this respect significantly less than compelling and I remain confused as to precisely who is and is not, ordinary members of the aunt’s household.

1. Ms D comments:

   42.Throughout the interview [the aunt] was very focused on the church and the church community and what plans she is involved in within this community.  I found it difficult to have a conversation with her about anything other than the church and the effects that the church has on her and [J].

   ….

   49.[The aunt] suggested that she wants [J] to have “positive role models”, however, appears to only believe that this can occur in a totally religious setting.  This appears to be the only group of people that she exposes [J] to and she sites [sic] social problems within the Aboriginal community.  [The aunt] stated that she “loves the boy” and wants to give him a future.  However, she appeared fixated on [J] and made no reference to wanting to assist his siblings or her other nephews and nieces with their future.

   ….

   50.[The aunt] stated that she wants to protect [J] and this can only be achieved by “activities in the community”, however, I came to understand that this “community” was not the Aboriginal community but rather the church community.

   51.I questioned [the aunt] with regard to her Aboriginality and she stated that [the mother], Mr [P] and Ms [GS] “are different to me, they are into the spiritual stuff, the dark side, into the traditional, different to me, I am not really into that land rights [sic] stuff, this is my Mother’s land”.

2. The grandmother was described by Ms D as follows:

   52.….. [she] presents as a supportive and caring mother and grandmother, with a deep belief in her culture and family.  [The grandmother] acknowledges that at times she and [the mother] have had disagreements, which have impacted upon the parenting of her grandchildren.  [The grandmother] believes that this is in the past and that she and [the mother] want to move forward.  [The grandmother] stated that her husband died 10 years ago and that her children and grandchildren have been her priority.

3. Of some significance, as it seems to me, given the issues that the mother has earlier experienced with alcohol abuse and the incidents of family violence earlier referred to, is that Ms D records the grandmother as follows:

   56.[The grandmother] states that she became involved with the Court matter as a way of offering the Court another alternative with regard to [J] residing with her.  [The grandmother] explained that at the time of initial Court proceedings she was caring for [A] and [S], [J’s] siblings, for a short period of time.

   [The grandmother] reported that she believes that [the aunt] is keeping [J] as a way of hurting her.  She believes this is due to her having had [the aunt] committed to a mental health facility 10 years ago, against her will, and [the aunt] has not forgiven her for this.

4. I am not persuaded of the asserted motivation attributed to the aunt by the grandmother.  As I have attempted to make clear earlier in these reasons, I consider that the position of the parties (or perhaps more accurately, the “sides”) in this case is much more attributable to what I have called “the cultural divide”.

5. Ms D describes the mother as follows:

   23.…..[She] presented as gentle, polite and an articulate Aboriginal woman.  [The mother] acknowledges her past issues and mistakes and appears to have moved forward with the assistance of counselling.  [The mother’s] residence was comfortable and warm and I had a feeling and sense of children and family.  Her home had a bedroom for [J] (to be shared with his brother, [S]) with clothes, toys and books and many of his favourite things.

   and goes on to say:

   26.[The mother] stated that in 2004 she entered rehabilitation following an incident with her mother, which culminated in her being arrested.  [The mother] advised that she met [Mr L] whilst in rehabilitation.  It was reported that this relationship was brief, approximately two months, and that [J] was a product of this time together …..

   27.[The mother] stated that in 2006 she met her current partner, [Mr F].  [The mother] reported that in 2007 she and Mr [F] had a baby girl, [N], and that she is currently pregnant with a baby due in December 2010.  [The mother] reported that her partner does not have a criminal history, nor does he have a drug or alcohol dependency and is currently employed.  [The mother] reported that Mr [F] has asked her to marry him, however she is unable to commit to this.  Pointing to [J], she stated, “That he is the missing link, I can’t commit to one man when my other man is not in my life”.

6. Consistent with the picture of rehabilitation and improvement said to have occurred in the life of the mother, Ms D records the grandmother saying (in contrast to the previous conflict between them) that “she is very proud of [the mother] and how she is coping with the children [A and S]”.

Views and Siblings

1. In my view, the voices of children should be heard in parenting proceedings about them.  How those voices should be heard in a manner consistent with protecting them from the impact that proceedings might have upon them and otherwise ensuring their emotional wellbeing, and the weight to be accorded to those views, is each, of course, a different matter.

2. It is in my view noteworthy that, in the Reform Act, the legislature chose to replace the expression children’s “wishes” (s 68F(2) of the previous Act) with the expression children’s “views” (s 60CC(3)(a)).  I consider the use by the legislature of the latter term envisages a much broader concept than that embodied by simply asking a child (even a child of mature years) what he or she might desire by way of a specific outcome, or outcomes, to proceedings.

3. In particular, I consider that the “views” of children (particularly when seen in combination with other “Additional Considerations” contained in s 60CC) encompass a range of issues including the psychological foundation for those views, or how any such expressed views might be reflective of, for example, a child’s attachments or other factors impinging upon the child’s emotional and psychological wellbeing.  The factors that might be at play (or have been at play) in forming the views of children also have the potential to say a considerable amount about many of the Additional Considerations relevant to them.

4. Here, even if there was clarity to the “wishes” of J, in the sense of his expressing a preference, his age and level of development and maturity are plainly such that little weight would be accorded to them. 

5. However, in the broader context earlier referred to, observations of which I can be confident can, in my view, provide a significant pointer to J’s degree of attachment and his level of emotional and psychological comfort.  I am confident in relying upon the observations of Ms D in that context and I consider the following observations and opinions of Ms D, which I accept, to be important:

   73.[J] presented to me as two different children.  By this I mean, when I observed [J] with [the aunt] he was sad, sullen and quiet.  [J] did engage with me;  however, in my opinion, he was reserved in his manner and in what was said.  When asked anything he looked to [the aunt] or did not keep eye contact with me.  I observed his home with [the aunt] to be very basic, there appeared to be no toys, no books and his only form of play appeared to be the tree at the front of the home and rocks in the backyard. 

   74.He appeared distant from [the aunt] with no physical contact and little verbal communication.  [The aunt] appeared to have little authority as he mostly ignored her requests ….Whilst I was at the home a young little boy (a cousin) came to “play” which appeared to me to be collecting rocks in the backyard and playing in the tree.

   75.I spoke to [J] at [the aunt’s] residence and he stated that he liked playing with his brothers and sisters and that he misses [Mr Moldow].

6. Ms D goes on to record her observations that found the earlier expressed view that J presented as “two different children”:

   76.[J] with his mother, grandmother and siblings appeared very different.  On arrival at his mother’s home he ran in and gave his grandmother and mother a cuddle.  This followed him going into one of the bedrooms and bringing out some of his toys to show me.  I observed him to be happy, laughing, much, much more talkative and carefree.  He was really easy to engage with, he kept eye contact and he appeared to have no hesitation in making himself at home.  He showed me his room and his toys and chatted about what it would be like to sleep in his room with his brother.

   77.[J] stated he wants to live with his “mum [F]” and his brother and sisters.  Whilst at his mother’s, [J] did not stop eating.  He climbed up and sat on his mother’s lap for a period of time and cuddled up to her.  I observed him to have a close and loving relationship and a strong attachment with his mother.  He accepted boundaries set by his mother without hesitation and asked for assistance when needed.

7. Ms D also refers to statements made by J.  I am, for the reasons earlier identified, circumspect about attaching significant weight to those statements.  Ms D records:

   78.[J] stated that sometimes “mum [G]” [i.e. the aunt] won’t allow him to see his mother or his siblings so [he] runs away, [the mother] confirmed that sometimes he arrives alone and she takes him home as [the aunt] “growls” at him and she does not want him to be in trouble.  When I asked what that means [the mother] stated that the aunt “yells at him or bullies him”.

   79.[J] explained to me that a baby lives with them and that he lives in “the back room of the house at mum [G’s]”.  When I asked [J] where the baby was when I visited his home, he told me that the baby was at Aunt [Z’s].  He was matter of fact in his response, as if this has occurred in the past.

8. The statement just referred to prompted the inquiry conducted in cross-examination at the trial about the members of the aunt’s household to which I have earlier referred. 

9. A significant issue is, as it seems to me, the fact that J is currently separated from his siblings in circumstances where the evidence before me persuades me that it would be beneficial for him to develop and grow a relationship with them and detrimental to him if the relationships do not flourish.  Such a conclusion is, in my view, open irrespective of J’s Aboriginal heritage, but I consider this factor to be all the more important by reason of J being an indigenous boy, and the importance of family and kin earlier referred to.

10. I have already referred to the fact that J expresses a desire to develop that relationship.  Ms D spoke to each of J’s siblings, A and S. The former Ms D described as “an articulate and bright little girl”.  and records her as follows:

    69.[A] stated that she does not like [the aunt] because she is “scary”.  I asked why she is scary.  [A] stated that she yells at the children and described her being angry. Furthermore, [A] stated [the aunt] “flogs” the baby and [J].  I asked [A] to explain to me what that means and she stated and demonstrated [the aunt] hitting the children with an open hand on the back of their heads or on their back.

    70.[A] explained that on one occasion she went to visit [J] at [the aunt’s] home and they were playing “hidey and seek”. [A] explained that [J] was hiding under the covers and she was under the bed.  She described [the aunt] coming into the room and dragging [J] out from under the covers by his shirt and hitting him on the back.  [A] stated this made her “sad”.

    71.[A] reported that she would like her brother living with her family and that she “misses and loves him”.  [A] presented as agitated and jumpy when talking of [the aunt], additionally she appeared sad when I asked her about [J] living with [the aunt] away from the family.

11. The attachment between J and each of his respective carers is of course directly relevant to “the nature of the relationship” which he has with his mother and other persons including his grandmother relevant to his care, welfare and development (s 60CC(3)(b)).

12. I consider that for a boy of this age, at his level of development, the issue of these attachments both to potential carers and also his siblings is an important consideration in this case. In paragraph 86 of her report, Ms D says:

    It is my opinion that [J] has a strong attachment to his mother.  [The mother] appeared child focused and has the best interests of [J] at heart.  Given the history of violence and sexual abuse it is a credit to [the mother] that she has engaged with counselling to address the past, allowing her to become emotionally and physically healthy.

13. By way of comparison Ms D observed:-

    85.Children require care-givers to provide a safe, secure, stable, consistent and loving environment so they thrive and develop to meet their potential.  When parents or care-givers focus on the conflict with the other party/parties rather than the child it can impact the child’s sense of self or their sense of reality and family.  It is my opinion that [the aunt] appeared not to understand this, whereas I felt [the mother] was very aware of how the situation is affecting [A], and to her credit was focused on the here and now and on the facts, rather than on her pain.

14. The passages just quoted, together with Ms D’s opinion expressed within the report that J’s culture is very important to his present and future sense of self and identity, makes the opinion, which I accept, that while in the care of his aunt, that exposure “to his culture has been lacking”.  While acknowledging that “as an adult [the aunt] has the right not to acknowledge her Aboriginality and view “the Lord” as her guidance” Ms D’s opinion (supported in my view by the passages earlier referred to from decisions of the Full Court) is that “religion is a personal choice:  Aboriginality is a way of life and is based on identity”.

15. Each of those matters can be seen to be important to Ms D’s ultimate recommendation that J reside with his mother and siblings.  However, that recommendation is accompanied by a further recommendation that the grandmother have “sole parental responsibility of the child”. 

Summary and Conclusions

1. As will be clear from what has earlier been said, the situation confronted by the court as it evolved during the hearing is different in some important respects to that assessed by Ms D:

   ·The planned live-in relationship of the mother and Mr F in a place remote from E and, thus, the grandmother and aunt were not in contemplation (at least as expressed to Ms D);

   ·It seems clear that Ms D was not made aware of Mr F’s criminal history;

   ·It also seems clear that Ms D was not made aware of the nature or extent of the family violence that had occurred between the mother and Mr F.

2. I find that the mother has minimised the family violence that has occurred between Mr F and her.  In doing so, she presented to Ms D a picture of a relationship much more stable and healthy than that which I consider has been the case historically. I have real concerns about this relationship and its potential to impact adversely upon J.  I find that the relationship between the mother and Mr F has been marked by violence and instability.  I also consider that it has been marked by indecision.  I have real concerns that, in the future, the relationship will not provide the peace and stability which, in my view, is needed for J to have an appropriate nurturing environment.

3. I said earlier that lack of legal representation sometimes provides the opportunity for a court to see and hear things that might otherwise be shrouded in legal representation.  A very good example of that occurred during the trial.  When I expressed my concerns in terms similar to those just expressed to witnesses, including Mr F, (and flagged the possibility of findings in that respect), I noticed the grandmother was nodding her head in animated agreement with what I was saying.  So, too, when I suggested to Mr F that “stress” might not be seen as an appropriate reason for his past violent behaviour and expressed concerns about it repeating, the grandmother rolled her eyes and again animatedly nodded her agreement.

4. The grandmother is, in my judgment, child focussed.  She has not hesitated in the past to intervene appropriately when she perceives a situation as threatening to the children, including J.  She did so despite the potential for there to be, as it were, a conflict of loyalties with her daughter.  Her interventions in the mother’s life have impacted on her relationship with her daughter.  She has been assaulted by her daughter.  Neither has stopped her interventions in this family which have been child focussed and centred on child safety.  I consider that the grandmother’s past behaviours are a very good predictor of her future behaviours.

5. I am not prepared to find, on the evidence before me, that there is an unacceptable risk of abuse of violence in the mother’s prospective household, but I nevertheless remain concerned about it.  I am prepared to accord to the mother (as did Ms D) credit for the plainly difficult task of remedying past mistakes and behaviours and for doing (as the grandmother acknowledged and Ms D observed) a good job of parenting her other children (and, indeed, J during the relatively short amounts of time he has spent with her).  My lingering doubts emanate from concerns about the relationship choices made by the mother and, in that respect, my being less than convinced that Mr F shares the same parenting qualities, or commitment to change in behaviour, exhibited by the mother.

6. If J is to be removed from the predominant care of the aunt, it will represent a significant change for him – a change in parental attitudes and mores and a change in the “cultural environment” in which he will be raised. 

7. I assess the grandmother as being the person most likely to make genuine, and likely continuing, attempts to maintain a relationship between J and the aunt.  I consider that the aunt is extremely unlikely to do so if J was to live with her, unless time occurs in accordance with what she determines should occur and in a manner which she determines.  The mother is in my view intellectually committed to ensuring a relationship between J and the important people in his life, but I doubt her on-going capacity to do so on a practical level at all with the aunt and if previous conflict with her mother was to erupt.  That is, her words are likely to be louder than her actions.

8. I consider J has little, if any, prospect of developing an understanding of his aboriginal heritage and culture (either at an intellectual level or in the experiential manner referred to by Mr P and in the academic references earlier quoted) if he remains in the aunt’s care.  If that occurs it would, in my view, amount to a denial of a profoundly important part of who J is – he would not, to use Ms D’s phrase, be able to live his Aboriginality.  I consider that this is likely to be profoundly detrimental to him.

9. I consider it significantly beneficial to J that he develop a close and loving relationship with his siblings.  The prospect of that occurring, in a fulsome way, is very significantly less, in my view, if he lives with the aunt.

10. As will be obvious from what I have earlier said, I am extremely worried about the observations of Ms D that J presents as “two different children”.  I accept her evidence and the picture it paints; indeed it is a picture consistent with my (admittedly limited) observations of the differing personalities exhibited by the aunt on the one hand and the mother and grandmother on the other.  The picture presented of J with his mother and, indeed, his grandmother is more consistent with what I consider to be a happy, loving and expressive boy giving vent to his personality; in short, it is a picture more consistent with his best interests.

1. Yet, I remain very concerned that, if his day to day care is given to his mother significant conflict and disruption within his nurturing environment may well occur and will be detrimental.  I note the significant advances which the mother has made have occurred when she has been living in close proximity to the grandmother and when there was no live-in relationship with Mr F. 

2. It is axiomatic that the mother can live where she chooses.  In evidence, the grandmother said that if the mother and Mr F move to Coffs Harbour as planned she would “be there a lot of the time” and “if necessary [I] would move there”. I believe her.  Yet, such a result seems to me to put the cart before the horse; the reason she would do so reflects the concerns I have about J living within that environment at this time. If the concerns are such that the grandmother would move there or is needed there, how can J living with the mother there be in his best interests? Yet, I am not persuaded that J remaining where he is in the aunt’s predominant care is in his best interests; he deserves the opportunity to live his Aboriginality; he should be able to develop a full and complete relationship with his mother and with his siblings; he should have the opportunity to express his love for his mother openly and freely and he deserves the opportunity to receive his mother’s nurturing.

3. Yet, the mother has, in the past, not provided him with those things.  She has made poor life choices that have impacted upon him.  I am concerned that this is a pattern that will recur if she, J, two older siblings, a very young child and a new baby, live together a considerable distance from the grandmother – a person who impresses me as a child-focussed, intelligent and reliable carer who has played a very significant nurturing role in the lives of two of J’s siblings.

4. The risk of family violence remains, albeit that I don’t find that risk “unacceptable”.  A greater risk, though, in my view, is the risk of lack of stability and a breakdown in the responsibilities of parenthood.

5. The aunt is, in my view, right to have concerns about Mr F. But her assertions about “drug dealers” and people at the mother and grandmother’s home are, at best, hearsay upon hearsay, assumption, or do not otherwise appear to have a firm factual foundation. I think they say more about the aunt’s world view, or her views of right and wrong, than they do about the reality of risk to J presented by the mother and/or the grandmother.

6. I have determined that J’s best interests dictate that his grandmother should take overall responsibility for making decisions in respect of him.  Those decisions should include where, when and with whom he should live and spend time. 

7. I consider such an order allows a person closely concerned with J’s aboriginal heritage to make decisions about the means by which J can live his Aboriginality.  That will include making decisions about his relationships with family and kin – that is, where, when and with whom he should live and spend time and the nature of the activities best associated with his path to (aboriginal) manhood.

8. I consider such an order also allows a person with a proven track record in nurturing and making child-focussed decisions in very difficult situations to make decisions should situations develop that a mature, child-focussed person would see as presenting a risk to a child.

9. I consider such an order facilitates the best and safest opportunity for J to develop a relationship with his siblings and the best chance for an appropriate relationship between J and his siblings to flourish.  It allows the relationship between J and his mother to find proper expression while, at the same time, allowing some, as it were, oversight of the progress which, it is to be hoped, the mother continues to make in distancing herself from the mistakes of the past.  It also allows a similar degree of oversight in respect of the progress in the relationship between the mother and Mr F.

10. Significantly, as it seems to me, it also allows the grandmother to determine how, when and in what circumstances she should be physically present with J so as to ensure each and all of those things.  I have no doubt that she will do as she said she would.

11. I will, then, dismiss the application of the aunt. For the avoidance of doubt I make it plain that what can be seen to be oral applications of the mother are also dismissed.

12. I will make an order for parental responsibility in favour of the grandmother and will, for the purposes of clarity, make it clear that such an order permits of the decision as to where, when and with whom J is to live and spend time.

13. I have an expectation that the grandmother will facilitate time between J and the aunt. Initially, I will specify time and provide for a graded process as a means of limiting any impact of the adjustments into the grandmother’s care. I also have an expectation that the grandmother will ensure that J be permitted to communicate with the aunt as he might reasonably request and that she will encourage him to do so.

14. I order accordingly.

I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy delivered on 17 December 2010.

Associate: 

Date:  17 December 2010