Offer and Wayne and Anor
[2012] FMCAfam 912
•31 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OFFER & WAYNE & ANOR | [2012] FMCAfam 912 |
| FAMILY LAW – Arrangements for care of two children aged 13 & 12 pending final hearing – children are both Aboriginal children – children previously lived with their mother who is recently deceased – father seeks that two children should live with him in Aboriginal – maternal aunt seeks that the older child should live with her in Adelaide – second respondents seek that the younger child should live with them in (omitted) – both children clandestinely decamped from (omitted) to Adelaide – views of children canvassed at child inclusive mediation attended by aunt and other parties – father did not attend – father identifies as Maori person but has been involved with children’s extended Aboriginal family in (omitted) for many years – children have wide network of relatives based in (omitted) – best interest considerations – nature of interim hearing – entitlement of children to enjoy Aboriginal culture with their relatives – weight to be given to apparent views of children – regard to be had to children’s kinship obligations. |
| Family Law Act 1975, ss.60B; 60CC; 60CD; 60D; 64B; 65C, 68LA |
| Davis v Davis (2007) 38 Fam LR 671 Mulvany & Lane (2009) FLC 93-404 |
| Applicant: | MS OFFER |
| First Respondent: | MR WAYNE |
| Second Respondents: | MR B & MS M |
| Independent Children’s Lawyer: |
| File Number: | ADC 2406 of 2012 |
| Judgment of: | Brown FM |
| Hearing date: | 22 August 2012 |
| Date of Last Submission: | 22 August 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 31 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Horvat |
| Solicitors for the Applicant: | Legal Services Commission of South Australia |
| Counsel for the first Respondents: | Ms Read |
| Solicitors for the first Respondents: | Rachel Story & Associates Lawyers |
| Counsel for the second Respondents: | Ms Dixon |
| Solicitors for the second Respondents: | A K Reeves & Associates |
| Counsel for the Independent Children’s Lawyer | Ms Partridge |
| Solicitors for the Independent Children’s Lawyer | Hume Taylor & Co |
ORDERS
This matter be listed for final hearing before Federal Magistrate Cole in Broken Hill on 6, 7 and 8 March 2013 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.
The applicant file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 6 February 2013.
The respondents file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 20 February 2013.
On or before 6 February 2013 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 30 November 2012.
The Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.
It is requested that the Dispute Resolution Co-ordinator give consideration to the family report herein being compiled by Mr R given it pertains to the best interests of children who are Aboriginal in their background.
UNTIL FURTHER OR OTHER ORDER:
The child X born (omitted) 1998 live with the applicant maternal aunt, Ms Offer and the aunt be permitted to maintain the child’s enrolment at (omitted) College provided that she is responsible for all fees relating to such enrolment.
The child Y born (omitted) 2000 live with the second named respondents Mr B and Ms M from the beginning of the third term of the 2012 school year and they be permitted to enrol the child at (omitted) High School provided they are responsible for all fess relating to such enrolment.
The aforesaid children spend one week of the September school holidays with their father and other family members in (omitted). The week to be agreed between the parties and failing agreement to be the first week of the school holidays commencing on the Saturday subject to the following conditions.
(a)The maternal aunt be responsible for the travel costs of both children to travel to (omitted) and for X to return to Adelaide with Mr B and Ms M be responsible for the costs of the child Y to travel to (omitted) in order to give effect to order 9 hereof.
The aforesaid children spend two weekends during term four of the 2012 school year with their father and other family members in (omitted). The weekends to be agreed between the parties and failing agreement to be the third and seventh weekend of such term subject to the following conditions:
(a)The maternal aunt be responsible for the travel costs of the child X to (omitted) and return to Adelaide;
(b)Mr B and Ms M be responsible for the travel costs of the child Y to (omitted) and return to (omitted).
The aforesaid children spend the first fortnight of the Christmas 2012/2013 school holiday, including Christmas, together with their father and maternal family in (omitted) subject to the following conditions:
(a)The maternal aunt be responsible for the travel costs of the child X to (omitted) and return to Adelaide;
(b)Mr B and Ms M be responsible for the travel costs of the child Y to (omitted) and return to (omitted).
The children spend the middle two weeks of the Christmas 2012/2013 school holiday with the maternal aunt in Adelaide subject to the following conditions:
(a)The maternal aunt be responsible for the travel costs of both children between (omitted) and Adelaide and for the costs of the Y to return to (omitted).
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the children or from permitting any other person to do so.
The parties be restrained and an injunction is hereby granted restraining them from discussing the proceedings in the presence of the children or from permitting any other person to do so.
Further consideration of this matter is adjourned to 10 December 2012 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Offer & Wayne & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2406 of 2012
| MS OFFER |
Applicant
And
| MR WAYNE |
First Respondent
And
| MR B & MS M |
Second Respondents
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Introduction
This case concerns interim arrangements for the care of two children – X born (omitted) 1998 and Y born (omitted) 2000. The children have an Aboriginal background.
The circumstances surrounding this case have created strong emotions and controversy in the children’s family and caused deep divisions in it. I hope those divisions can be healed in time.
The court’s responsibility, at this stage, is to put in place the arrangements which it considers will best serve the interests of X and Y, until there can be a more thorough hearing of all the relevant evidence, from all of the interested persons concerned.
The case has come into court at a point of crisis in the lives of both the children and their wider family, which is primarily based in Western New South Wales around (omitted) and (omitted). However, X and Y have recently come to Adelaide in controversial circumstances.
The crisis in the family stems from the fact that the children’s mother, Ms Offer died suddenly, at the (omitted) Hospital, after suffering a stroke on 21 April 2012. This was a tragic loss, for which I express my condolences to the family.
Initially the only parties to these proceedings were the children’s maternal aunt, Ms Offer “the aunt” and the children’s father, Mr Wayne “the father”. The father lives in (omitted), where he has been employed as a (occupation omitted).
The aunt lives in (omitted), a suburb of Adelaide. She is a university student studying psychology at (omitted) University, where she has attended since January 2011. Originally, she was from (omitted).
More recently other parties have become involved in the proceedings. They are Mr B and Ms M. Mr B and Ms M have lived together for seventeen years. They live in (omitted), where Mr B is employed as a (occupation omitted).
Mr B is the cousin of the children’s deceased mother. He and Ms M have a cordial relationship with the aunt. Mr B does not have an easy relationship with other members of the children’s wider maternal family, in (omitted). Mr B is an Aboriginal person. Ms M is not.
Also very interested in these proceedings, although not formally parties to it, are Mrs Offer, the children’s maternal great grandmother; Mr Offer senior, the children’s maternal grandfather “the grandfather”; and Mr Offer junior, the children’s maternal uncle “the uncle”. They all live in (omitted). The grandfather is a (occupation omitted), whilst the uncle is an (occupation omitted).
Mrs Offer is universally known in (omitted) as “Mrs Offer”. This is a mark of respect. I too will refer to her as Mrs Offer in these reasons for judgment. Mrs Offer is a (omitted) of the (omitted) language group. The children and the aunt and indeed other of the interested parties in this case (apart from the father and Ms M), all belong to this group as a matter of birthright.
Mrs Offer describes her family in (omitted) as being close-knit. She has nine children, forty-seven grandchildren and forty great-grandchildren. She is the matriarch of the family. She is aged in her seventies. She has had a long working career working in important positions, particularly in regards to liaising between members of the Aboriginal community and government organisations.
Mrs Offer holds and has held a number of important positions in the indigenous community, both in (omitted) and the far west of New South Wales. Currently she is chair person of both the local (omitted) and the (omitted).
In her affidavit, she deposes as follows:
“I care strongly about my family, our country and my people. I believe that family issues need to be sorted out and discussed in Aboriginal families. Culturally, it is important to support our people and our country here. Being ‘on’ or ‘in country’ (that means – living on our tribal lands), is culturally very significant to my family, my people and I. It also has special significance at times of grief and loss.”[1]
[1] See affidavit of Mrs Offer filed 7 August 2012
The father and the children’s late mother met in (omitted), when both were in their late teens. The father has a Maori background. He and the mother separated a few years after Y’s birth. Following this separation, the children continued to live with their mother in (omitted). It also seems to be the case that, in this period, Y in particular, spent regular periods of time in (omitted) with Mr B and Ms M.
Both the father and the mother re-partnered following their separation and each has other children. In the mother’s case, they are A aged four years and B aged three years. These children currently live with their father, Mr C. The father has three children from two different relationships. They are C, D and E. The older two children live with their mother. The youngest lives with him and his current partner.
Following the death of the children’s mother, a family meeting was held in (omitted) to discuss arrangements for X and Y. Neither the aunt nor Mr B and Ms M attended the meeting. Mrs Offer says it was very “disrespectful” of Ms Offer not to attend the meeting. Although Mrs Offer has deposed that she still loves Ms Offer, there can be no doubt that there is currently a significant level of mistrust between the two women.
In Mrs Offer’s words, the purpose of the meeting was, in the presence of the whole family, to discuss things and “hopefully put an end to the fighting about who was taking X and Y”. In Mrs Offer’s perspective, this is the culturally appropriate way for such matters to be settled.
At this stage, it was decided that the two children would live predominantly with their father in (omitted). This would have enabled them to regularly interact with their wider family in (omitted) and be grown up by the whole family.
However, this plan has not worked out. There is no consensus in X and Y’s family as to what should happen next. In addition, there is disagreement about what are the actual views of the children themselves, concerning where and with whom they wish to live. This lack of agreement has exposed deep historical rifts between Mr B and Ms M on the one hand and Mrs Offer, the grandfather and the uncle on the other.
On the morning of 23 July 2012, X and Y left (omitted) without consulting their father, Mrs Offer or anyone from the family in (omitted). They came to Adelaide and have been living with their aunt ever since.
Mrs Offer regards this as tantamount to the “kidnap” of the children and believes it has come about as a result of “skulduggery” on the aunt’s part, a person of whom she deeply disapproves. Mrs Offer fears that the aunt has turned the children’s heads, particularly X’s. She is outraged that the children are not able to grieve for their mother, on their country, where they properly belong.
The aunt sees it differently. It is her position that neither child wants to live with the father in (omitted). She asserts that, since the death of their mother, the children’s lives have lacked stability, as they have moved from one relative’s home to another. The aunt has also raised significant concerns regarding the father’s parenting capacity.
The aunt asserts that it would be X’s preference to continue living with her and to continue to attend at (omitted) College, which she has begun to attend on an Indigenous student scholarship. From her perspective, the College is likely to provide an excellent education for X and provide support for her at this difficult point of her life.
So far as Y is concerned, it is the aunt’s position that she would prefer to live with Mr B and Ms M, whom she describes as her “uncle and aunt”. The aunt says that Y has a close relationship with her, which has developed since she was twelve months old, with the acquiescence of her late mother.
X will be fourteen in (omitted). Y is twelve and a half. Given their ages, I would be naïve to think that they do not have preferences and thoughts about their immediate future. However, I must also bear in mind that they are vulnerable and impressionable children, who have recently lost their mother.
The situation is difficult for all concerned. It raises complex legal issues, which are difficult to resolve at this stage, when emotions between the various actors concerned are raw and there is insufficient time to conduct a lengthy hearing, which may resolve some of the controversies arising in the case.
In addition, there has not been sufficient time for there to be a comprehensive and independent examination of the complex family structure in this matter and where precisely X and Y fit into it.
In addition, such a report will also involve an independent and professional examination of the children’s views, including the factors which are influencing those views. For obvious reasons, such a report is essential before there can be a final decision made in the case.
Given the issues in the case, it is likely that such a family report will take around fourteen weeks to complete. It is preferable that such a report be prepared in conjunction with the allocation of a date for final hearing. In the event the conclusions of the report are controversial, its methodology can be subject to scrutiny, along with the evidence of the other interested parties, at the final hearing stage.
Accordingly, at this stage of proceedings, any orders made by the court will necessarily be provisional, pending either final agreement between the parties concerned or the holding of a more exhaustive hearing. Given the inability of the court to make concluded findings of fact in the case, it is difficult for the court to make a decision, at the interim stage, particularly against a background of hastily prepared affidavit material and a crisis in the family concerned.
In making the interim decision, the court is obliged to consider the best interests of X and Y as being the paramount or most important consideration.
One consideration, to which the court must have regard in determining a child’s best interests, is any view expressed by the child concerned [section 60CC(3)(a)]. In addition, the court must have regard to a child’s background, particularly if the child concerned is an Aboriginal child [section 60CC(3)(h)].
It is here that areas of legal controversy arise. Pursuant to section 61F of the Family Law Act 1975 the court must have regard to any kinship obligations, and child-rearing practices of the child’s Aboriginal or Torres Strait Islander culture.
Mrs Offer and those associated with her are affronted at what they perceive to be the cultural insensitivity of how the matter has been handled to date. From the aunt and Mr B’s perspective, they are simply responding to what X and Y have told them.
Because of the inherent difficulties arising in this matter, at an earlier stage of the proceedings, on 2 August 2012, I made an urgent order that X and Y be independently represented in these proceedings. Their representative is Brendan Bowler an experienced family lawyer. Mr Bowler is to be regarded as a party to these proceedings, of equal importance to those who have filed applications in the case.
Pursuant to section 68LA of the Family Law Act 1975 Mr Bowler is required to evaluate all the evidence available in this case and formulate a position which he believes will best serve the interests of the children concerned. It is then his duty to make submissions to the court in support of his view of the case.
The aunt commenced these proceedings on 26 June 2012 and they were made returnable on 23 July 2012, the day on which X and Y left (omitted). At the time the matter was actually called into court, it was uncertain precisely where the children were, other than they were not at school in (omitted).
In response to this crisis, and on the assumption that the children were likely to arrive in Adelaide shortly, as I was told by counsel representing the aunt, I ordered that the parties attend a family dispute resolution conference, with one of the court’s family consultants, Ms C, as soon as was practicable. In the circumstances, I considered it appropriate that X and Y should also attend this conference.
At this very early stage, it seemed to me likely that the views of the children would be seminal, particularly as it seemed to be an extraordinary thing for two children of the ages of X and Y to take such extreme steps. It also seemed to me that such a conference was a proper response to the extreme level of crisis arising in the matter.
The earliest date available for such a conference was 1 August 2012. The aunt, Mr B, Ms M and the two children were able to attend this conference. Regrettably, the father was delayed in (omitted) and was unable to attend. Mrs Offer is disappointed that she was not consulted by Ms C, which she regards as a “complete disrespect to my culture and respect for Aboriginal law”[2]
[2] See Mrs Offer’s affidavit filed 16 August 2012 at paragraph 2
Pursuant to section 60CD(2)(c) of the Family Law Act the court may inform itself of views expressed by a child through any means, which it considers appropriate. In the urgency arising in this case, I considered that the intervention of Ms C was an appropriate mechanism to at least make some preliminary investigation of what were X and Y’s views in the matter and what was influencing those views.
As matters transpired, Ms C’s memorandum to the court has been influential in what has occurred between 23 July 2012 and 22 August 2012, the date of the interim hearing herein. On the basis of Ms C’s advice, I determined that X and Y should remain in Adelaide, in the aunt’s care pending an urgent order being made that the children be independently represented.
The central issue in this case, at present, is whether the children should be returned to the care of their father, which by necessary implication includes the care of their wider extended family or whether X should remain in the care of the aunt in Adelaide and Y be placed in the care of Mr B and Ms M in (omitted).
The case raises difficult issues relating to the separation of siblings and how, whatever is the outcome in the case, at this interim stage, the children should maintain relations with the disparate and conflicted members of their family, who live in (omitted), (omitted) and Adelaide, given the cultural traditions of that family.
The orders sought by each party and the evidence relied upon
a) The aunt – Ms Offer
The aunt relies on the following affidavit material:
i)Three affidavits of herself filed on 26 June 2012; 19 July 2012 and 24 July 2012;
ii)An affidavit of Ms B filed 19 July 2012.
At this stage, pending final hearing, the aunt’s position is that X should continue to live with her and attend (omitted) College. She supports Y moving to (omitted) and living there with Mr B and Ms M. If this occurs, Y would attend (omitted) High School.
In terms of the children spending time with their father and other family members, the aunt proposes that X should return to (omitted) every third weekend. She is willing to pay one half of the fare and proposes that the father pay the remainder. The cost is between $160 and $200 each way.
The aunt also proposes that X should spend all of the forthcoming September school holidays in (omitted), with the intent of the children spending the whole holiday together, one week with their father and other family members in (omitted); and one week with Mr B and Ms M in (omitted).
At this stage, the aunt has not closely considered what arrangements should be made for the end of year school holiday. As previously indicated, the aunt proposes that X should continue at (omitted) College, where her fees will be met by a scholarship. I have been provided with a letter from the College, which indicates the counselling support available to X at the College.
The aunt has also arranged for X to have a course of professional counselling. This counselling is offered by Ms J, a psychologist who practices in (omitted).
The aunt agrees that the case needs to be listed for final hearing, as soon is practicable. She would prefer the hearing to be in Adelaide but is open to it occurring in (omitted). She also agrees that a family report needs to be prepared in conjunction with that hearing.
In terms of the family report, it would be the aunt’s preference that it be prepared by Mr R. Mr R has previously been employed as a family consultant, by the court, but is now in private practice. He has extensive experience in compiling family reports, particularly in the context of Indigenous families.
b) The father – Mr Wayne
The father relies on the following affidavits:
i)Four affidavits of himself filed respectively on 1 August, 3 August, 7 August and 20 August 2012;
ii)Two affidavits of Mrs Offer filed 7 August and 16 August 2012;
iii)An affidavit of Mr Offer (the grandfather) filed 7 August 2012;
iv)An affidavit of Mr Offer junior (the uncle) filed 7 August 2012.
The father has not delineated with any great precision the orders, which he seeks in these proceedings. His response seeks the issue of a recovery order to compel the return of X and Y to (omitted). On a final basis he proposes that both children live with him and have “contact” with their aunt “as agreed by the parties but not on school nights”.
Although Mrs Offer is not a formal party to the proceedings, the import of her affidavit material is that she should be consulted about any arrangements for X and Y and the children should live in (omitted), mainly with their father, but also so that they can interact with their wider family.
c) The other parties – Mr B and Ms M
Mr B and Ms M rely on the following documents:
i)An affidavit of Mr B filed 14 August 2012.
In their response document filed 14 August 2012, Mr B and Ms M seek interim and final orders in the same terms. They seek that Y should live with them and they should be solely for her care, welfare and development. They propose that she spend time with her father at times to be agreed between the father and Mr B.
The number of affidavits, which have been filed in a comparatively short period of time, is indicative of the controversy and strength of feelings in these proceedings. As I observed during the interim hearing, many of these affidavits are reactive in nature. They also seem to have been somewhat hurriedly prepared.
d) The Independent Children’s Lawyer
The independent children’s lawyer has not as yet filed any affidavit material. He is only recently appointed. As a consequence he has not, as yet, had an opportunity to speak with X or Y. In addition, he has not inspected any documents, which may be relevant to the children’s best interests – such as school records or information relevant to the parties themselves – but because they come from independent sources may be highly probative.
In these circumstances, the independent children’s lawyer urges a cautious approach, which is not ostensibly opposed to the views of the children as currently expressed.
The family consultant’s memorandum to court dated 1 August 2012
Ms C interviewed the aunt, Mr B and Ms M. Mr Wayne was unable to attend the conference but was interviewed, albeit briefly, by Ms C on the telephone.
Importantly, Ms C was able to interview X and Y. She described them as: “articulate, albeit emotionally overwhelmed by the seeming furore surrounding their respective decisions not to remain living with their father.”
Ms C reported that both children independently told her that their late mother was opposed to them spending significant time with their father, due to her concerns regarding his drug taking lifestyle. In this context, both children reported that their father had not played a significant role in their upbringing.
Y apparently identified Mr B as being the person who had been a father figure for her “from when [she] was a baby.” Y was described by Ms C as appearing frightened at the prospect of having to live with her father in (omitted).
X reported loving her father but not wanting to live with him. She also reported some negative feelings for her father’s partner and her maternal grandfather’s wife.
X acknowledged that she had lived all her life in (omitted) and had lots of family and friends there. However, she believed that she would be able to maintain these relationships by regular visits to (omitted). X was apparently discomforted by the impression that members of her family, in (omitted), spoke disrespectfully of her aunt Ms Offer.
Ms C recorded the following statement from X: “I don’t want my dad to hate me for wanting to live in Adelaide … my mum said to always follow my dreams … I want to be a (omitted)… I don’t have those opportunities in (omitted) … I love my dad but I can’t live with him … I just want to be able to see him in the holidays … I really hope that me and my sister get what we want … I just wish the court won’t put me with my dad.”
Y was described by Ms C as being much less confident than her older sister and being fearful of left in a situation where she might run into her maternal grandfather, whom she believed was in Adelaide for the court proceedings. She described to Ms C ill feeling between her grandparents and Mr B and Ms M. This ill feeling apparently made her apprehensive. Y referred to Mr B and Ms M as “mum and dad”.
Ms C recorded the following verbatim statement of Y:
“I’ve been with them since I was 3 months old…I feel safe with them…I love them…they do stuff with me…I used to call Ms M ‘Mum’…my Mum used to think it was funny…they used to come and get me every Friday and my Mum used to say, ‘Come and get your daughter’”. Y added, “I’ve just lost my Mum…now they are trying to take my other Mum away…I’ve been wanting to stay with them since Mum died”. Y reiterated, “I feel comfortable… safe in (omitted)…Ms Offer is happy for me to stay with them…she says as long as we both feel safe…I feel safe with them”.
The aunt nominated her reason for initiating these proceedings as being her perception that the children were not being listened to by their family in (omitted). She reported a difficult familial situation in (omitted), which was characterised by frequent disputes between the various members of the family. In this context, she reported some concerns centred on family violence and drug taking.
Mr B and Ms M reported a significant care giving role for Y since she was born. They reported “loving her to death”. It was also reported by Ms M that she had noticed Y was becoming increasingly distressed and confused about her situation.
Ms C conceded that any assessment of the family, which she could offer at this stage, was preliminary in nature and did not take account of any cultural issues. However, her impression was that the aunt was genuine in her professed wish to support the two children concerned and help them make appropriate choices as to where they wished to live in future.
Under the heading “future directions” Ms C wrote as follows:
“Whilst it could be argued that separating these two sisters from each other and from other family members in (omitted) such as their father might be contraindicated in such circumstances, both girls clearly articulated their preferences for different residential arrangements, X with the maternal aunt in Adelaide and Y with her “second Mum and Dad”, Mr B and Ms M in (omitted).
The girls’ reasoning seemed sound and well-considered.
Indeed, the writer was impressed with both girls’ efforts to stress the importance of not being forced to live with their father in (omitted).
It is hoped that the girls’ expressed wishes today to live with the aforementioned family members who they each identified as meeting their current needs for comfort and security at this sad time of their lives, will be respected and endorsed by the father (and other extended family members such as the maternal grandfather).”
The legal principles applicable
The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do. However although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.
Part VII is the part of the Family Law Act which deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount or most important consideration [Family Law Act section 60CA].
At the commencement of Part VII is a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
In considering the child’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)] and the views of any child bearing in mind the maturity of the child concerned [section 60CC(3)(a)]. These additional considerations include the Aboriginality of any child concerned [section 60CC(3)(h)], matters to which I have already alluded.
Again, the application of these various considerations must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Again, the application of these various considerations must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
The principle set out in section 60B emphasise a child’s entitlement to know and enjoy his or her culture. This is a theme, which is taken up by section 60D(3), which deals specifically with Aboriginal children. Such children have a right to maintain a connection with Aboriginal culture and to have the necessary support, encouragement and opportunity to explore that culture and develop a positive appreciation of it.
These are themes, which are in turn, given greater emphasis by section 60CC(3)(h) & section 60CC(6). The legislation recognises that Aboriginal children have unique needs and particular difficulties, as a result of the treatment of Indigenous people throughout the history of European occupation of Australia and up to the present time.[3] This history is one of dispossession and discrimination.
[3] See Davis v Davis (2007) 38 Fam LR 671 at 689
The Full Court of the Family Court[4] has identified a number of recurrent themes, which are relevant to Aboriginal children, because of their unique position in Australian society. Courts such as this one are directed to bear these themes in mind, when making any order in respect of an Aboriginal child.
[4] See B & R and the Separate Representative (1995) FLC 92-636 at 82,398
These themes have been taken up by the legislature in its recent amendments to the applicable legislation brought about by the Family Law Amendment (Shared Parental Responsibility) Act 2006. These themes can be summarised as follows:
·A child whose ancestry is either wholly or partially Indigenous will be regarded as “black” by the cultural mainstream in Australia regardless of the child’s own personal identification or particular upbringing.
·Australia remains a country where racism, particularly against Aboriginal people remains prevalent. As such, Aboriginal children are likely to be exposed to racism from an early age.
·The removal of an Aboriginal child, from his or her family of origin, into a Euro-centric environment is very often devastating to the child concerned, particularly if it is coupled with a separation from the child’s family of origin and culture.
·The greatest protection, for an Aboriginal child, from the corrosive affects of racism or prejudice is to be part of a community which has to deal with such discrimination regularly.
·If an Aboriginal child has access to strong role models, who share his or her racial makeup, this is likely to provide the greatest protection from exposure to racism, either institutionalised or otherwise.
·Aboriginal children, who are removed from their family of origin, often suffer an acute identity crisis in adolescence, particularly if they are brought up in ignorance of their culture or in circumstances which deny their Aboriginality.
·A denial of cultural identity may result in a significant loss of self esteem, which can last well into adult life with possibly highly debilitating circumstances.
The current legislative provisions, dealing with Indigenous children, are consistent with article 30 of the United Nations Convention on the Rights of the Child, which affirms the right of Indigenous people to “enjoy” their own culture and to speak their own language.
In the context of its definition of what is meant for an Aboriginal child to “enjoy” his or her culture, the legislation [section 60CC(6)] speaks of an entitlement to maintain a connection to that culture. In Brown & Ferguson[5] Moore J said as follows:
“As I see it, the requirement to maintain a connection to [Aboriginal] lifestyle, culture and traditions involves an active view of the child’s need to participate in the lifestyle, culture and traditions of the community to which they belong. This need, in my opinion, goes beyond a child being simply provided with information and knowledge about their heritage but encompasses and active experience of lifestyle, culture and traditions.”
[5] Brown & Ferguson [1998] FamCA 239 at pp 29-30
The court is required to have regard to the kinship obligations and child-rearing practices, arising from the circumstances of any Aboriginal child involved in the proceedings before it [section 61F].
This section is consistent with other amendments made to the legislation, which are designed to facilitate greater involvement of extended Indigenous family members in the lives of any children concerned.[6]
[6] See explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 78
The children’s right to enjoy and maintain their culture are one consideration in addition to many others. The act requires these cultural rights be afforded real weight and significance. They must however be properly balanced with all the other rights which the children have pursuant to section 60B and other relevant issues which impact upon their welfare, both now and in the future.[7]
[7] See Davis v Davis (2007) 38 Fam LR 671 at 694 [93] per Young J
The fundamental task for the court is to determine, bearing in mind these goals and principles, what is the best outcome for any child concerned, both now and in the future. Necessarily different but equally important concepts must be weighed and accessed against each other to achieve the best outcome for any child concerned.
The Family Law Act is primarily a code for regulating arrangements regarding the care of children between the parents of any child concerned. However, a parenting order need not be confined to an order made in regards to a child’s parents alone.
It is an order which deals with such issues as the persons with whom a child should live; spend time and communicate with; and the persons, who should have responsibility for making decisions, both significant and otherwise, about a child and the degree of consultation necessary to implement such decisions [section 64B(2)].
As the expression implies, obviously parenting orders are most usually made in favour of the parents of the child concerned but clearly can also include other people, who are significant to the child concerned, in the sense of that child’s care, welfare and development.
Pursuant to section 65C of the Act, a child’s parents; the child him or herself; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order. Accordingly, the aunt and Mr B and Ms M are not prevented from seeking orders in these proceedings pursuant to the applicable legislation. Nor does Mr Wayne have primacy over their applications because of his position as the children’s surviving parent.
The fact of parenthood is an important and significant factor in considering which of the parties’ proposals is likely to best advance a child’s welfare. However, there is no presumption in favour of a parent over any other relative or individual, when a parenting order is made.[8]
[8] See Rice v Miller (1993) FLC 92-415
Rather, the best interest of any child concerned is the essential element of any decision making process concerning that child and if this results in a child living with an aunt or some other relative, in preference to a parent, then this is the outcome that should be ordered.[9]
[9] See Davis v Davis (2007) 38 FamLR 671 at 697 [114]
In the case of Goode & Goode[10], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one. The court is first required to identify the competing proposals of the parties and any issues in dispute. It is then required to consider the relevant section 60CC factors and, if possible, bearing in mind the truncated nature of an interim hearing, make any relevant findings of fact available.
[10] Goode & Goode (2006) FLC 93-286
In this particular case, there are many disputes of fact. In addition, in my view, there is considerable uncertainty concerning one of the central evidentiary matters in this case, namely how precisely X and Y came to be living in Adelaide.
An interim hearing, such as this one, does not provide a forum for the resolution of disputed issues of fact. The appropriate means by which such disputes are resolved is through cross examination at the final hearing stage.
The evidence
a) The aunt
The aunt has deposed that she was in (omitted) at the time of the mother’s untimely death. It is her case that both X and Y were initially cared for and lived with Mr B and Ms M. However, after a short period of time, X began to live with other of her relatives in (omitted), but not with any degree of consistency.
In these circumstances, the aunt asserts that, it was agreed between her and the father that X would come to Adelaide to live with her. X arrived in Adelaide on 19 May 2012. Ms Offer asserts that she appeared to be run down, at this stage, and was suffering from eczema and cold sores. The aunt arranged for her enrolment at (omitted) College. She refutes any suggestion that it had been earlier agreed that X would return to (omitted), to live with her father, after a period of a fortnight in Adelaide.
The aunt is twenty nine years of age and has two children from a previous relationship. They are F born (omitted) 2006 and G born (omitted) 2009. The father of these children does not identify as an indigenous person. At present the aunt shares her home with her cousin, Ms R, who is twenty one. Ms R will move out if X lives with the aunt. I have no reason to consider that the aunt’s home provides anything other than appropriate accommodation for X.
The aunt has provided the court with a letter from (omitted) College. It indicates that he College authorities have provided X and Y with counselling and are generally aware of their situation. Contact has been made, on behalf of the children, with the (omitted) Team at Catholic Education SA. The Deputy Principal of the College reports as follows:
“In addition to the formal counselling support accessed by X and Y both girls have required extensive informal support from a broad network of staff within the school including the Deputy Principal…X and Y have often felt overwhelmed, distressed and anxious as school and have required access to an environment in which they feel safe and supported.”
The aunt is critical of the father in respect of his past drug use. She alleges he has used amphetamines, marijuana and drinks alcohol to excess. It is also her position that the relationship between the father and the children’s late mother was one characterised by family violence. She asserts that he served a term of imprisonment in respect of crime of violence committed against the children’s mother. Necessarily, it is her position that the father represents an inappropriate role model for the children.
Ms Offer also believes that Mr Wayne, due to his employment as a (omitted), moves from station to station and is only intermittently in (omitted). As such, she is concerned that, if the children are placed in the father’s care, they will be moved between the homes of other relatives, whilst he is away and this will be destabilising for them.
The aunt has also raised concerns regarding the children’s paternal grandfather, alleging that he has a serious criminal history regarding sexual assaults on children. She wishes an injunction be made restraining the father bringing the children into contact with the person concerned.
However the gravamen of her case depends on what she asserts are the respective wishes of X and Y, which she would characterise as being rational and understandable generally. It her position that the children have made it clear to all concerned that they do not appreciate the discord which has surrounded arrangements for their care, following their mother’s death.
The aunt commenced these proceedings on 26 June 2012. At this stage only X had been living with her. However, she had made arrangements for the child to return to (omitted) to spend time with her family and children over the mid year school holiday. The intent of her application was to put in place a regime to secure the return of both children to Adelaide. It is, I think, a mark of her bona fides that she was willing to facilitate X’s holiday in (omitted).
As previously indicated, her application was given a first return date before the court of 23 July 2012. This date was approximately one week after the end of the South Australian mid year school holiday. It was also the date on which the children left (omitted).
As previously indicated, it is far from clear to me precisely how the children left (omitted). The aunt’s case is that she was contacted by X on the preceding weekend by telephone and the child clearly indicated to her that she was desperate to return to Adelaide as soon as possible. Accordingly, the aunt booked an early morning flight for X on 23 July, which she did not take.
During the course of the morning in court, which the father and his solicitor attended via telephone, it became clear that both children had left (omitted). The aunt asserts that at 11.42 am, on that day, she received a text message from X in the following terms:
“Me and Y are together. We left (omitted). We don’t want to be with Pop and Dad because we are scared. We don’t want court to put us with Dad we are coming to Adelaide so we can be with you. We will ring you when we get there, please don’t tell anyone because we don’t want anyone to know.”
At this stage, no one could inform me how the children had actually left (omitted) – whether they were travelling alone; had caught a bus or were hitchhiking; or whether some adult was involved in the process. In addition, I did not know if the police had been informed and the children were being treated as missing. In those circumstances, I adjourned the case until the next day.
Ms Offer deposes that later that afternoon she received a telephone call from a Ms W, who is a friend of hers. Ms W has not provided a formal affidavit in these proceedings, although a statutory declaration completed by her has been attached to an affidavit of the aunt. In the telephone call in question, Ms W apparently told the aunt she was in (omitted) with the children and she would arrange to deliver them to Ms Offer at (omitted) later in the evening.
In her statutory declaration, Ms W, who apparently lives in (omitted), says she was contacted by her daughter who was concerned about X. Ms W collected X from a bus shelter. She had her suitcase with her and said she wanted to go to Adelaide so she could speak for herself. X contacted Y by telephone. How Ms W collected Y is not clear to me, but self-apparently she did.
In all these circumstances, Ms W has written that she considered “due to X being so upset and fearful of both her father and grandfather I thought the most appropriate outcome would be to start heading towards Adelaide…” Needless to say, the father considers this action to be an unwarranted intrusion into the family’s affairs and he questions both Ms W’s bona fides and judgement.
a) The father
The father was born on (omitted) 1978. It is his position that he has a comfortable three bedroom home in (omitted) which would provide both X and Y with their own room. He also deposes that he has stopped working in the (omitted) stations and is now based in (omitted) permanently.
It is Mr Wayne’s position that he has “essentially had sole custody” of the children, since their mother’s death. This statement is somewhat at odds with other statements made by Mr Wayne in his affidavit material. He also asserts that, prior to the mother’s death, he was extensively involved in caring for the children and provided for them financially.
Mr Wayne portrays the aunt as something of an outsider within the maternal family. Whilst he was on good terms with both the mother and her relatives. He deposes as follows:
“My relationship with Ms Offer’s family during this time was still good. I lived out on a station with Ms Offer’s father and Ms Offer’s grandmother, Mrs Offer. Mrs Offer is a respected Elder in (omitted) and head of the (omitted) which covers this area. Everyone looks up to Mrs Offer. She has a lot to do with the children and has had a lot to do with raising them as well. Mr Offer has always been there for the children. The children always have had their Aunties and Uncles and cousins around them while they were growing up. It is a big but a close family in (omitted). Ms Offer wasn’t really as involved with the family.”[11]
[11] See affidavit of Mr Wayne filed 3 August 2012
It is the father’s position that he and the children’s family in (omitted) with the central grounding which X and Y require to adjust to their mother’s death. The underpinning of the father’s case is that he does not believe that either child really knows what she wants at this stage. He doubts that X does in fact want to remain living in Adelaide with her aunt.
The tone of Mr Wayne’s affidavit material is that he regards Ms Offer as an unreliable and manipulative person. As such, he does not consider her to be a suitable role model for the two children. He refutes any suggestion that he has made any inappropriate threats to the aunt, either in person or via facebook. He deposes that he has had no contact with the paternal grandfather for many years and has no idea as to his current location.
The father places significant emphasis on the rich nature of the children’s Aboriginal background and culture, which is available to them in (omitted). He also points to the children’s younger half-siblings, on both their father and mother’s side, who also reside in (omitted). As previously indicated, Mr Wayne is Maori by background. He also wishes to be able to teach the children about this aspect of their cultural heritage.
Mr Wayne disputes any suggestion that Y was brought up by Mr B and Ms M. At best, he asserts they babysat Y on an irregular basis. Mr Wayne also denies that he has any current drug use issues.
The father regards Ms C’s report to the court as unbiased and incomplete. As such, he submits that the court should place no reliance on it. He is upset that no attempt was made to check issues raised with Ms C by the aunt, Mr B and Ms M with him.
In his most recent affidavit, Mr Wayne says as follows:
“I just don’t understand why the girls would have such a problem with staying with me. Or even feeling safe with me. There is and was no reason why they would feel this way. It is so hurtful. I feel that things are being said to them and put into their heads which are just not true. We always got on fine. Since Ms Offer’s death, I was not given a chance to look after those girls. They were always sleeping over at someone else’s house or wanting someone to sleep over. They did not like rules.”[12]
[12] See paragraph 11 of Mr Wayne’s affidavit filed 20 August 2012
At this point, I am unable to flesh out precisely what Mr Wayne means with this statement. It confirms my initial impression that both children, particularly X, are strong willed persons. It also suggests that perhaps they are not currently simpatico with their father at present.
Needless to say, Mr Wayne is deeply suspicious of Ms W’s involvement with the children going to Adelaide. He asserts that she dishonestly posed as a psychiatrist in order to trick either the school authorities or Y into leaving school on 23 July 2012. In addition, Mr Wayne has nothing good to say about Mr B and Ms M.[13]
[13] See paragraph 19 of Mr Wayne’s affidavit filed 1 August 2012
The grandfather deposes as to his close relationship with X and Y. In the past, he has regularly gone fishing and camping with them at his station, which is seventy kilometres outside of (omitted). The grandfather was at the family meeting. He reports the meeting’s outcome as follows:
“After Ms Offer’s death, we then had a family meeting a few days later to discuss the girls. The boys in Ms Offer’s new family were OK because they were with Mr C, Ms Offer’s new partner. We discussed that the girls should stay with Mr Wayne as he was their rightful father. If they didn’t settle in there, they were going to stay with me. The two girls were at the meeting. They were happy with what was decided and agreed with it. We all agreed as a family to tell Mr Wayne to keep X and Y in line, that they were to go to school and all of those things.
But M never had a chance. Someone was always picking them up and taking them somewhere. The girls would also be on their phones texting people. They would text people saying that ‘they didn’t like it here’ but had only been there for five minutes. The girls weren’t giving the new arrangements a chance.” [14]
[14] See affidavit of Mr Offer senior filed 7 August 2012
The grandfather believes that the aunt has been disrespectful by retaining the children. He says as follows:
“In Aboriginal law, I am the Elder. She should be respecting that and our ways.”
The uncle deposes that he had a conversation with the mother, shortly prior to her death, in which she indicated her wish for X and Y to come into the care of their father and help him raise their younger brothers. The uncle deposes to a close relationship between the mother and father following their separation. It is his position that he trusts Mr Wayne.
Mrs Offer has a poor view of Mr B and Ms M. Initially, counsel for the father indicated that Mrs Offer regarded it as being “taboo” for Y to live with Mr B and Ms M. I was uncertain as to the significance of this submission. I was later told that Ms M had previously been married to one of Mrs Offer’s sons and had left him for Mr B. It seems that this occurrence precipitated extreme emotion, which remains to this day.
Accordingly, it does not seem to be the case that her opposition to Y living with Mr B and Ms M is based solely on cultural grounds. Undoubtedly however, Mrs Offer strongly disapproves of Mr B and Ms M. She describes them as having been very disrespectful of her family. She asserts that they “made Y call them mum and dad.” It is also her position that her late daughter had real concerns about their intentions towards Y at the time of her death.
Mrs Offer alleges that Ms M has criminal convictions for fraud. She further points out that Ms M does not identify as an Aboriginal person, and as such, it is inappropriate for Y to be placed in her care. Mrs Offer’s perspective, it is deeply offensive that Y would be encouraged to refer to another person, as her mother, following the death of her own mother. I can appreciate why this is an extremely sensitive topic.
Mrs Offer’s position can be summarised from the following paragraphs in her most recent affidavit:
“Mr Wayne has not been given the chance to be the girl’s father. He needs to be given that chance and they need to learn respect for their father. They don’t like rules being made for them. Ms Offer, Mr B and Ms M need to step back to let them live their life. There are enough family in (omitted) to step in and help if any help was needed. But in the first instance, Mr Wayne needs to be given a chance. He has moved to a bigger house for the girls’ sake and he needs to be given the opportunity. As any man, he should be given the right to live his family. I have never seen anything like it to allow someone to come and take a man’s children away like that. What they are doing is wrong.
We have done nothing but we are being treated like criminals. We are not the ones who stole the children from their own school. There is a lot of rubbish that is being put into the kid’s heads.”[15]
[15] See Mrs Offer’s affidavit filed 16 August 2012
Mrs Offer asserts that the “grown ups have been putting things in the girl’s heads”. More importantly she asserts that neither X nor Y are of an age to be able to appreciate how their best interests are to be served in the longer term. From her perspective those interests will be advanced if the children return to (omitted), where they have lived for all of their lives to date and they are placed in the care of their father.
Assessing the best interests of the children – section 60CC factors
This does not appear to be a case which centres on issues to do with family violence, neglect or abuse. Rather, it is one based on a consideration of how best the children’s relationship with their family can be maintained, against a background of conflict and complex cultural considerations.
The other of the primary considerations requires the court to give significant weight to the benefits which are likely to come to a child of having a meaningful relationship with parents. In the sad circumstances of this case, it is a significant consideration that X and Y now have only one surviving parent. It is also significant that the objects of part VII of the Family Law Act place an obligation on the court to ensure that children have the benefit of parental involvement in their lives.
A child’s parents are invariably central to how a child derives a sense of his or her personal identity, as he or she grows into maturity. Parents are a source of unconditional love and approval for the child concerned. In addition parents provide children with knowledge and information about their wider family and forebears.
Importantly parents endow their children with warmth and approval and, as such, children feel a sense that they are unique and special to their parents. For these central and self apparent reasons, children benefit from having a meaningful relationship with parents. Considerations of this type must be intensified when the child or children concerned has only one surviving parent.
However, as I have previously indicated, although the fact of parenthood is an important and significant factor, in a child’s life, there is no presumption that the court should make a parenting order in favour of a parent in priority to any other relative or individual. The best interests of the child concerned remain paramount.
The case comes into court at a difficult stage in the lives of both X and Y. Necessarily, they must be struggling to adjust to the untimely death of their mother. As such, I must approach them as vulnerable children. In this context, the plea of the independent children’s lawyer to approach the case with caution has much to recommend it.
As I have previously indicated, I am not yet in a position to have a complete picture of precisely how and why X and Y came to leave (omitted), on 23 July 2012 and what part Ms W and indeed the aunt played in this contentious event. The father and the other family in (omitted) see the malign influence of the aunt in it, whereas she portrays herself as an honest broker.
However, wherever the truth lies, it seems to be the case that the children were willing participants in leaving (omitted), in the manner in which they did. As such, at first blush, it seems something of a misstatement to assert that the children were kidnapped. Certainly they do not appear to have been forced to leave (omitted), against their will, although I concede that it is possible that their feelings may have been subject to manipulation.
In this context, it is difficult for me to ascertain, with certainty, whether X and Y are to be regarded as capricious children, who have left (omitted) as a naughty prank, which has been precipitated by an older person, who ought to know better or whether their departure is to be regarded as a cry for help, on their part and, as such, the unequivocal statement of their views in the matter.
The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[16]
[16] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56
Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in any particular case. Nor is he or she required to express an explicit wish as to which parent or other significant person he or she wants to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[17]
[17] See H v W (1995) FLC 92-598 at 81,944
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[18]
[18] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724
Although I cannot positively characterise what was the exact motivation for the children in leaving (omitted), in my view, it is a significant thing for children of the ages of X and Y to take part in such a course of action. At first blush, it does indicate some level of discomfort, on their part, in respect of the existing arrangements for their care in (omitted), regardless or not of the possible influence of some adult in the venture.
Mr Wayne complains that when the children were in (omitted) they were constantly staying with friends or had friends to sleep over. He asserts that the children did not obey his rules. These complaints, on his part, do not suggest a naturally occurring and empathetic relationship between him and the children.
Importantly, in this case, I also have the report of Ms C. I acknowledge that her report is preliminary in nature and did not involve any extensive input from Mr Wayne or wider members of the children’s family in (omitted). However, the fact remains that X and Y apparently spoke candidly, with an independent person, about their perceptions and views in the case.
X is nearly fourteen years of age. Y is over twelve and a half. Ms C regarded both children as being articulate. As such, it seems more likely than not that the children each have sufficient maturity to be able to express a preference in this case. X, in particular, is on the cusp of maturity.
At an early stage of proceedings, given the circumstances surrounding the children’s departure from (omitted), I deemed it expedient to at least make an attempt to canvas what were the children’s views in this matter. Both children must have been aware of why they were being taken to see Ms C – it was so that the court would have some appreciation of what were their thoughts about the matter, in what were obviously emotive and difficult circumstances.
Having undertaken this process of soliciting the children’s views, I am concerned at how both children, but particularly X, will perceive the court’s processes, if their views, after having been apparently canvassed by it with some precision, are subsequently effectively ignored. I do not think that such an outcome would be in keeping with the ethos behind the provisions contained in section 60CC(3)(a).
In my view, at this early stage, pending a more exhaustive hearing of all relevant evidence, it would be imprudent of the court to ignore what these mature children have said to Ms C. To my mind, there is no compelling evidence to indicate that either child has been the subject of any direct or covert manipulation in the actual interview process with Ms C.
Rather, in difficult circumstances, it seems that both children have seized upon the opportunity to tell an independent person, associated with the court, what they would each like to happen, at least in the short term. In these circumstances, I think that I would be naïve to consider anything other than that both children are well aware that I am the ultimate decision maker, in this case, and that Ms C will report back to me. As such, it would seem to be the case that the children have spoken to Ms C with a view to being heard.
At this stage, X’s apparent preference to remain living with her Aunt Ms Offer and Y’s apparent preference to go and live with Mr B and Ms M cannot be regarded as being irrational notions, so far as either child is concerned. Clearly, X knows her aunt well and Y knows Mr B and Ms M. In each case the persons concerned are relatives of the children, who have known them from earliest childhood.
Children, like other individuals, have preferences. Given Mr Wayne’s perception that the children do not like the rules of his household, which suggests at least the possibility of some friction between him and the girls, the preferences which X and Y are reported to have expressed to Ms C do not appear to me to be outlandish. I appreciate however that I have not as yet heard extensive evidence about the nature of Mr Wayne’s relationship with the children. I also note that the evidence regarding his involvement in their lives, prior to their mother’s death, remains highly controversial.
If the views of X are Y, as reported to Ms C about their father and grandfather are correct, I have grave reservations concerning the capacity of the children’s family, in (omitted), to provide for their emotional needs. In particular, the children are likely to consider that their opinions are of no moment and must yield to those of their elders.
This may make them resentful and perhaps difficult to manage. At this juncture, there are some indications that both children, but particularly X, are somewhat headstrong by temperament. An allegation Mrs Offer levels at the children’s Ms Offer. Certainly, it was an unusual step for the children to leave (omitted), in all probability knowing what a storm this action would precipitate.
However, it is undoubtedly the case that (omitted) is the centre for both X and Y of a complex network of family relationships. This network includes the children’s grandparents and importantly their younger half siblings, who derive from subsequent relationships of each of their parents. I acknowledge that these relationships are important for both children. X and Y are likely to have some responsibility to bring up these siblings.
Although it is not specifically put in such terms, the gist of the father’s case (supported by Mrs Offer) is that Aboriginal children such as X and Y are liable to be parented collectively by their wider family, who share responsibility for them. As such, it is not appropriate for the children to live outside of (omitted).
Mr Wayne is adamant that the children should not be separated from each other. As such, he argues that it adds weight to his position that the two children should live with him in (omitted). Necessarily, it is Ms Offer’s position that the different views of the children, influenced by their distinct experiences to date, should be the influential factor at this stage.
I agree that the relationship between siblings is one of the most important of all human relationships. It also seems self apparent the X and Y are close to one another emotionally. Given that the children left (omitted) in tandem with one another, it is my preliminary view that they have provided emotional support to one another in what are very difficult circumstances. Accordingly any decision resulting in the children living in separate household must necessarily be one of some moment.
However, given Ms C’s view that what the children said to her had been closely considered by each, it seems that both X and Y have, at the very least, a rudimentary understanding of what it will mean to live in separate households. In any event, this seems to have been their position for a sizeable portion of the second term this year – X was in Adelaide and Y was in either (omitted) or (omitted).
It would seem to be the case that both children’s attendance at school has been disrupted of late. X is apparently content to remain at (omitted) College. I have no reason to consider anything other than that this school will provide adequately for her educational needs.
The situation is more uncertain so far as Y is concerned. She was attending (omitted) High School. More recently, she has had a term at (omitted) College. Her apparent preference, supported by Mr B and Ms M, is to attend at (omitted) High School. I have not been provided with any extensive information about this school, other than that Y has previously attended it and has some friends there.
If X remains living in Adelaide, Ms Offer has made a comprehensive proposal as to how she (X) may maintain her relationship with her father. It is proposed that she would see him every three weeks or so and for extended periods in school holidays. Given the distance between Adelaide and (omitted), the proposal can be criticised as being unduly ambitious because of the degree of expense involved.
In this regard, Ms Offer proposes that Mr Wayne should contribute to X’s regular costs of air travel between Adelaide and (omitted). This would be a sum of up to $200.00 every three weeks or so. Although I have not been provided with extensive evidence regarding Mr Wayne’s financial circumstances, I have some reservations, particularly given the fraught emotional circumstances currently prevailing, that he would willing contribute such a sum.
However, notwithstanding this difficulty, in my view, it will be possible for X to maintain a meaningful level of relationship with her father (and indeed with other members of her wider family in (omitted)) if she remains living in Adelaide, with her aunt, pending final hearing. The outcome proposed by Ms Offer will not result in the severing of this important relationship.
I am well aware of the evidence of Mrs Offer. In particular, her evidence that it is contrary to Aboriginal law that the two children be away from their country, at this time of grieving and that this court should flout the authority of the relevant Elders of the community. I have no desire to be disrespectful of either Mrs Offer or Mr Offer senior.
I must have regard to the provisions of section 60CC(3)(h) and section 60CC(6) of the Family Law Act. There is no doubt that X and Y are to be regarded as Aboriginal children for the purposes of these two sections. As such, they have an entitlement to enjoy that culture with other people, who share it.
This is not a case, where it is proposed that the children concerned will be placed with a person who is completely extraneous to their cultural frame of reference. The applicant in these proceedings is the children’s aunt. She identifies as an Aboriginal person. She comes from the same community, in (omitted), as do X and Y.
It seems to be the case that Mr B is more distantly related to the children and Ms M not at all. However, Mr B is a maternal relative of the children. Importantly he identifies as an Aboriginal personal and is obviously so, in a physical sense, as Ms C reports. It is all the case that, notwithstanding her lack of biological relationship with Y, Ms M knows her well and enjoys a warm relationship with her.
In these circumstances, it does not appear to be the case that the proposals of either the aunt or Mr B will result in an abrogation of the children’s entitlement to enjoy the culture from which they spring or will result in the expurgation of their Aboriginal sense of identity. Essentially, it cannot be said that either child will be placed with a cultural stranger or in a foreign environment, if orders are made which coincide with the views apparently expressed by them to Ms C.
I appreciate that Mr Wayne has a Maori background. In his affidavit material, he has emphasised the importance of this background both to him and potentially to the two children. However, it would seem to be the case that the children have grown up in (omitted), where there is a significant indigenous population. Certainly, their maternal family all strongly identify as Aboriginal people.
At this stage, it would seem to me more likely than not, that both children have a firmly fixed sense of cultural identity, as a result of having grown up in (omitted), where they have spent time with their older maternal relatives, including Mrs Offer and Mr Offer senior. In these circumstances, I think it unlikely that this sense of cultural identity will be placed in serious jeopardy, pending final hearing, no matter what is the outcome of these interim proceedings.
I am also of the view that, if the court gives effect to the apparent views of the children, such an outcome will not significantly interfere with the children’s level of relationship with their wider family in (omitted), including with their younger half siblings.
I am at pains to point out to all concerned that this is an interim hearing. Necessarily, what results from it is provisional in nature and may be subject to revision, at the later hearing stage, when more evidence is likely to be at hand and what evidence there is can be thoroughly tested.
I will fix the case for final hearing, in Broken Hill in the first part of 2013. Given the significance of country, to all concerned, but particularly Mrs Offer and Mr Offer senior, it appears appropriate that the final hearing should occur in Broken Hill.
In conjunction with that final hearing, I will order that a family report be prepared. I will request that the Regional Coordinator Child Dispute Services SA/NT, Mr T give consideration as to whether sufficient resources are available within the court to enable Mr R to prepare the necessary report. However that is not a decision which falls to me alone.
At the end of the day, at the this stage of the proceedings, it is the responsibility of the court to determine which outcome it considers will best serve the interests of X and Y. In this, as occurs in many cases, there is some degree of conflict in the application of the various considerations arising under section 60CC. I alluded to this conflict in the introduction to these lengthy reasons for judgment.
The significance to be given to each section 60CC factor will vary, from case to case, depending on the circumstances of the case concerned. In this regard, I bear in mind what was said by the Full Court in Mulvany & Lane as follows:
“It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.”[19]
[19] Mulvany & Lane (2009) FLC 93-404 per Finn, May & Thackray JJ at [76] – [77]
In my view, given the ages of the children concerned, the views of X and Y, as expressed to Ms C, must be given pre-eminent significance, by the court, at this stage. In my assessment, the views of the children are the main determinative factor at this stage, notwithstanding the strong claims relating to their Aboriginal background, which centre on (omitted).
Accordingly, I have reached the view that the best interests of the children will be served if X continues to live predominantly with her aunt in Adelaide and Y lives with Mr B and Ms M in (omitted).
I do not think that this outcome will result in the children being estranged from either their father or wider maternal family in (omitted). These important relationships can be maintained through a process of X and Y regularly visiting (omitted). I accept that (omitted) is their “home town” and will always be important to them.
However, notwithstanding the importance of (omitted) and the extended family, which is based there for the children, I have come to the view that it may be emotionally deleterious for both X and Y to compel them to return to the town against their apparent wishes. The children’s vulnerable status dictates that the court should move cautiously, at this juncture.
The appropriate time for Y to move to (omitted) and start living with Mr B and Ms M is at the start of the fourth term of the school year. In both New South Wales and South Australia, this term will commence on 8 October 2012 and will be preceded by a two week holiday. I will order that X and Y spend between 27 September and 4 October in (omitted) with the father. The aunt should book and pay for the children’s necessary airflights to (omitted) and in X’s case back to Adelaide.
I hope this period of time will enable the children to spend some enjoyable time with their father and wider family without any recrimination. I will make an injunction restraining each of the parties from discussing the proceedings with the children or permitting any person so to do. More importantly, I will restrain each of the parties from denigrating or abusing any of the other parties in the presence or hearing of the children.
During the fourth term, I will order that X spend two weekends of it in (omitted), so that she can reconnect with her sister and other family members. Given that I will order that the aunt assume the cost of this travel, this seems a more workable proposal than every three weekends. In the event that the parties are unable to agree on the weekends in question, I will order that they be third and seventh weekends of the term.
The end of year school holiday is approximately six weeks in duration. The important celebration of Christmas falls in the second week of the holiday. Difficult logistical considerations arise in respect of how the children should spend the holiday period with each of the interested parties concerned.
I am minded that X and Y should spend the first fortnight of the holiday, including Christmas, together with their father and maternal family in (omitted). Thereafter the children should spend two weeks together with their aunt in Adelaide, after which Y can return to (omitted) and X can remain in Adelaide.
The final hearing will be scheduled to take place in (omitted) on 6, 7 and 8 March 2013. The court’s circuit to Broken Hill is the responsibility of Federal Magistrate Cole. I will arrange for the matter to come back to the court prior to the trial date and once the family report has been released to see if it is appropriate for the parties to be referred to some community based form of mediation or family dispute resolution. I trust the fixing of the matter in Broken Hill will not create funding or logistical difficulties for the independent children’s lawyer.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 31 August 2012
0
2
1