Oscar and Acres and Anor

[2007] FamCA 1104

FAMILY COURT OF AUSTRALIA

OSCAR & ACRES AND ANOR [2007] FamCA 1104

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Best interests – Cultural issues 

Family Law Act 1975 (Cth)

APPLICANT: Mr Oscar

RESPONDENT:	Ms Acres
INTERVENOR:	Mrs Stace

FILE NUMBER: PAF 1081 of 2003

DATE DELIVERED: 11 July 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Lismore

JUDGMENT OF: Barry J

HEARING DATE: 13 – 16 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Priestly of Counsel

SOLICITOR FOR THE APPLICANT: Parker & Kissane

COUNSEL FOR THE RESPONDENT: Mr Brian Kelly, Solicitor

SOLICITOR FOR THE RESPONDENT:

Boyd Olsen Lawyers

COUNSEL FOR THE INTERVENOR:

SOLICITOR FOR THE INTERVENOR:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Julian-Armitage of Counsel

Toowoomba Aboriginal Legal Service

Mr Stephen Tester

Orders

1. The child, S born … November 1999, live with the Father.

2. The Father be responsible for the short term decisions regarding the day to day care, welfare and development of the said child whilst the child is in his care.

3. The Mother be responsible for the short term decisions regarding the day to day care, welfare and development of the said child whilst the child is in her care.

4. The Mother, the Father and the Intervenor be jointly responsible for the decisions regarding the long term care, welfare and development of the said child.

5. The Mother spend time with the said child as may be agreed in writing with the Father.

6. Regardless of any time the child may spend with the Mother pursuant to paragraph 5 hereof, conditional on the child residing each evening of holiday periods at the home of the Intervenor, Mrs Stace, the Mother have contact for the following periods:

   (a)The whole of the Easter and September New South Wales school holiday periods each year;

   (b)For the first half of the New South Wales June/July school holiday periods in each year;

   (c)For the first half of the New South Wales Christmas school holidays in years ending with an odd number and for the second half of the New South Wales Christmas school holidays in years ending with an even number.

7. Changeover at the commencement and conclusion of all holiday periods referred to in paragraphs (5) and (6) hereof shall occur at such time and place as the parties may agree in writing but in the event the parties are unable to agree such changeover is to occur at the police station at W. 

8. The Intervenor is to spend time with the child at times arranged with the Mother whilst the child is spending time with his Mother pursuant to the terms of paragraphs (5) and (6) hereof.

9. The Mother be at liberty to telephone the child between 6.00 pm and 6.30 pm (New South Wales time) each Tuesday and Thursday with the Mother to initiate the calls and the Father to ensure the child is available to take the calls.

10. Neither party to denigrate the other within the presence of or within the hearing of the child nor are they to allow any other person to do so.

11. The Mother pay the sum of $500 by way of witness expenses to Ms B.

12. The Independent Children’s Lawyer is discharged.

13. Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, 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 Oscar & Acres and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT LISMORE

FILE NUMBER: PAF1081/2003

MR OSCAR

Applicant

And

MR ACRES

Respondent

And

MRS STACE
Intervenor Maternal Grandmother

REASONS FOR JUDGMENT

Parties

1. Mr Oscar – Applicant Father – caucasian – resides in C in Northern New South Wales at his mother’s residence with the child, S (the child) born in November 1999.

2. Ms Acres – Respondent Mother – aboriginal – resides in M in South East Queensland with Mrs Stace the Intervenor and in Brisbane with her partner, Mr D.

3. Mrs Stace (the maternal grandmother) – Intervenor – aboriginal – Ms Acres was her late husband’s niece.  She has been a mother figure to Ms Acres most of her life.  Resides in South East Queensland with five other children including E, Ms Acres’ 16 year old daughter.

4. Independent Children’s Lawyer – Stephen Tester.

Witnesses – Father

1. Paternal grandfather – resides in Northern New South Wales.

Witnesses - Mother

1. Mr M – aboriginal from L reserve at V.  Gave evidence by telephone link up.

2. Mr D – caucasian, Mother’s current partner – resides in Brisbane – employed as a technician.

3. Ms N – de facto partner of Mr M annexes thesis on V “A History of Social Exclusion” which she authored.

4. Ms R Acres – 39 years of age - resides at L reserve, V – sister of the Mother.

5. Mr T Acres – 41 years of age – resides at L reserve, V - brother of Mother.

6. Mr C Acres – 31 years of age – resides at L reserve, V - brother of Mother.

7. Ms K Acres.

8. Mr FS Acres.

9. Mr O.

10. Ms F Stace – 36 years of age - resides at … Street, V – daughter of Mrs Stace (the maternal grandmother).

11. Ms B – 65 years of age - resides in inland New South Wales – elder of the Aboriginal People – author of two books of aboriginal history of the Aboriginal People.

12. I was informed by the legal representative for the Mother that he no longer relied on the affidavit of Mr O.  The other witnesses apart from Mr M and Mr D were not required for cross examination.

13. Ms B attended at Court only to be informed that she was not required for cross examination.  She sought an order for her witness expenses in the sum of $500 to be paid by the Mother.  Such an order was made by consent.

Witnesses – Mrs Stace - Intervenor

1. Professor P, Deputy Director, National Centre for Indigenous Studies, Australian National University annexes a 12 page document entitled “Submission re: Children of Aboriginal/Non-Aboriginal Parentage” written in October 2001 – Professor P was not required for cross examination.

Witnesses – Independent Children’s Lawyer

1. Mr J, psychologist who prepared a family report dated 4 January 2006.

2. Mr H, Family Consultant, Family Court of Australia, Darwin prepared a report which is annexed to his affidavit sworn 2 February 2007.

Orders Sought

1. The Father seeks orders in accordance with his further amended application:

   “1.The child [S], date of birth […] November 1999, live with the Father.

   2.The Father be responsible for the short term decisions regarding the day to day care welfare and development of the said child while the child is in his care.

   3.The Mother be responsible for the short term decisions regarding the day to day care welfare and development of the said child while the child is in her care.

   4.The Father and the Mother be jointly responsible for the decisions regarding the long term care welfare and development of the said child.

   5.The Mother spend time with the said child as agreed between the parties but failing agreement as follows:

   (a)        School Holiday Periods:

   (i)one half of all school holiday periods commencing with the second half in 2006 and the first half in 2007 and alternating each year thereafter;

   (b)       Communication by telephone:

   (i)each Tuesday and Thursday evenings between 6.00 pm and 6.30 pm with the Mother to initiate the calls and the Father to ensure the child is available to take the calls.

   6.The Second Respondent to spend time with the said child at times arranged with the First Respondent whilst the said child is spending time with his Mother (the First Respondent).”

   7.        SPECIFIC ISSUES

   (a)Neither party to denigrate the other in the presence of or within the hearing of the child, nor are they to allow any other person to do the same.”

2. In the course of final submissions Counsel for the Father indicated if the child was to live with the Father, he was prepared to allow the Mother and/or the Intervenor to have contact for the whole of the first and third term school holidays and for one half of the second term school holidays and one half of the Christmas holidays.

Orders Sought by the Mother

1. The Mother filed an amended response dated 13 March 2006.  In that response document she seeks (in summary form) the following orders:

   1.The Father, Mother and the Intervenor have equal shared parental responsibility for the child.

   3.Conditional upon the Mother living at the place of residence of the maternal grandmother (the Intervenor) the child live with the Mother.

   4.Should the Mother relocate the child’s place of residence from the place of residence of the maternal grandmother order 3 be discharged and the child live with the maternal grandmother and spend time with the Mother as agreed between the Mother and the maternal grandmother.

   5.The child spend time with the Father as agreed between the parties but failing agreement as follows:

   a.For all of the end of term 1 and term 3 school holidays each year;

   b.For half of term 2 school holidays;

   c.Half Christmas holidays;

   d.On the middle weekend of each school term from completion of school on Friday until the commencement of school on Monday;

   e.Father’s Day.

   6.Telephone communication.

   The Mother additionally sought a series of other orders of mainly a procedural nature or in a standard form.

2. During the course of the hearing the legal representative for the Mother sought to amend her application to seek an order allowing the Mother to be the primary parent.  Paragraphs 3 and 4 were amended accordingly to read:

   “The child live with the Mother.

   The child spend time with the maternal grandmother as agreed between the Mother and the maternal grandmother.”

Orders Sought by the Intervenor

1. The Intervenor filed a response to an application for final orders dated 20 October 2006.  In that response document she seeks the following orders:

   “1.That the child [S] date of birth […] November 1999 live with the maternal grandmother [Mrs Stace].

   2.That the maternal grandmother be responsible for the short term decisions regarding the day to day care welfare and development of the said child while the child is in her care.

   3.That the father be responsible for the short term decisions regarding the day to day care welfare and development of the said child while the child is in his care.

   4.That the mother be responsible for the short term decisions regarding the day to day welfare and development of the said child while the child is in her care.

   5.That the maternal grandmother, the father and the mother be jointly responsible for the decisions regarding the long term welfare and development of the said child.

   6.That the father spend time with the said child as agreed between the parties but failing agreement as follows:

   (a)        School Holiday periods:

   (i)        one half of all school periods.

   (b)Telephone communication – each Tuesday and Thursday evenings between 6.00 pm and 6.30 pm.  With the father to initiate the calls and the paternal grandmother to ensure that the child is available to take the calls.

   7.That the mother spend time with the said child as agreed between the parties but failing agreement as follows:

   (a)        School holiday periods:

   (i)        the other half of all school holiday periods.

   (b)Telephone communication – each Monday and Wednesday evenings between 6.00 pm and 6.30 pm with the mother to initiate the calls and the maternal grandmother to ensure that the child is available to take the calls.”

Orders Sought by the Independent Children’s Lawyer

1. Initially the Independent Children’s Lawyer favoured orders for the child to remain with the Father.  His assessment was the Court should make orders for the child to live with either the Father or the Intervenor.  In the course of final submissions he adopted a more neutral stance saying his position was, “in the middle”.

Chronology

1. The Father was born in January 1972.

2. The Mother was born in February 1973.

3. The relationship between the Father and the Mother commenced in August 1996.  Separation occurred on 1 March 2002.

4. At the time of separation the Mother took the child with her.  The Father says he issued legal proceedings but because of financial difficulties and other problems he did not attend on certain Court dates.

5. Regardless of what happened in the period from March 2002 until February 2004, the fact remains the child was in his mother’s care.

6. In February 2004 the Father says he received a phone call from the Mother.  She was living on the L Reserve at V with the child in a de facto relationship with Mr O, a white Australian male.  He says the effect of the message was, “please collect [the child]”.  The Father says he travelled with the child’s paternal grandfather from Northern New South Wales to V and upon arrival he noticed that the Mother had a black eye.  Both the Mother and the child returned to the paternal grandfather’s home in Northern New South Wales at that time. 

7. In paragraph 9 of his affidavit of 14 November 2005 the Father deposes as follows:

   “9.Since February 2004 [the child] has resided with me.  The mother only remained for a short period of time and she agreed that [the child] should reside with me.  I said to the mother words to the effect, “As you know this matter is back at Court in Parramatta on 8 April 2004 what do you want to do about it?”  She replied, “I am going to live with [Mr O], [the child] can live with you as long as I can have him for some of the holidays.”  I said, “You will have to write something down so I can show the Judge”.  See annexed hereto and marked “A” copy of draft letter written by [the Mother] to be given to the Judge.”

8. The document annexure “A” contains different handwriting.  The final paragraph reads:

   “[Ms Acres]

   Just writing to use to let use know that [the child] and I are at [C in Northern New South Wales].  We came to [C] on 14 February.  [The Father] and I have been talking about what’s being going on and [the Father] asked me if it alright can [the child] stay with him.  I said yes and [the Father] said I could have him for the school holidays.  I think that’s great.  I am happy with that.

   [Ms Acres].”

9. The Mother denies that the signature on that document is her signature.  I accept I am not a handwriting expert but after 40 years in the law I have had some reasonable experience with the evidence of handwriting experts.  On balance I would be inclined to the view that it is the Mother’s signature on that document notwithstanding her denial in relation to same.  If it is not her signature it is a very clever forgery.  I cannot conceive of any relevant witness in this case who would be able to produce a forgery in such authentic circumstances.

10. In paragraph 11 of the same affidavit the Father says:

    “11.I attended Court at Parramatta on 8 April 2004 unrepresented and I explained the situation to the Judge.  The Judge dismissed all outstanding applications and removed the matter from the pending cases list, see annexed hereto and marked “B” a copy of that order.”

11. Annexure “B” is a formal order dismissing all applications made by the Judicial Registrar (JR Halligan) on that date.  A transcript of those proceedings is exhibit 8.

12. It is the Mother’s case that she was not informed of the Court proceedings at Parramatta and it was a ruse on the Father’s part to deceive her to have any outstanding applications dismissed.  I am unable to make a finding in this regard.  If it be true it would not reflect well on the Father’s conduct at the time.  However, the decision I must make now is what is seen to be in the best interests of the child as at the present time.

13. In paragraph 12 of his affidavit the Father deposes to the fact that the Mother has always been able to have phone contact and face to face contact with the child on a regular basis.  In paragraph 13 he deposes to the fact that from February 2004 until December 2004 the Mother had physical contact on three occasions. 

14. One of those occasions was in September 2004 (the Mother says this incident occurred in June 2004) when she was accompanied by her partner Mr O.  There was an incident at the paternal grandfather’s home when the Mother tried to take the child.  I am satisfied such an incident did occur.  Police records would indicate it was in June 2004.  It certainly lends weight to the Mother’s position that she was not consenting to the child remaining in the Father’s care – at least at that particular point in time.  It is likely the Mother and Mr O planned to take the child from the Father but were frustrated in their attempts to do so.

15. By late 2004, the Mother and Mr O were living in the Newcastle area.  The Father received a letter from the Legal Aid Office, New South Wales, written on behalf of the Mother requesting contact with the child.  Two letters were sent on 25 November and 30 November 2004.

16. Those letters are annexure “D” to the Father’s affidavit.

17. The letter of the 30 November 2004 has been endorsed by the Mother in the following terms:

    “I [Ms Acres] picked [the child] up on 19 December and will be returned on 12 January.

    [Ms Acres] – 19 December 2004.”

18. There seems no doubt that this handwritten note was made by the Mother.  The handwriting and the signature appear very similar to that which appears on annexure “A” of the Father’s trial affidavit. 

19. Notwithstanding her promise to return the child on 12 January, the Mother did not do so and a Recovery Order issued on 3 February 2005.  The child was subsequently returned to the Father.

20. By July 2005 the Mother challenged paternity suggesting the Father was not the father of the child.  Subsequent tests confirmed that he was.

21. In the course of her cross examination the Mother admitted that she knew all along that the Father was the father of the child.  It is a measure of the Mother’s desperation to have the child returned to her care that she would make such claims as a means of winning back her son.  It is also a measure of her lack of credibility.

22. The child has been in the Father’s care now for just over three years.  In that period the child has resided in three different houses and has had three changes of schooling. 

Affidavit of Paternal Grandfather

1. The paternal grandfather gave evidence.  I was impressed with the evidence of the paternal grandfather and see no reason to doubt his testimony.

2. It was part of the Mother’s case that the Father was racist.

3. Regardless of the views of the Mother in that regard I note the following:

   ·    The paternal grandfather lived in a relationship with an aboriginal woman who had four children who are step-siblings to the Father.  Those step-siblings, all now adult, reside on the New South Wales south coast.  The Father visits them from time to time.

   ·    The Father has been in a relationship over a period of years with the Mother and Ms TP who are both of aboriginal descent.

   ·    The Father lived on the L Reserve with the Mother for a period of time.

   ·    The Father gets on well with the maternal grandmother.

   ·    The Father and paternal grandfather had attended various aboriginal events and participated in reconciliation marches.

   ·    The paternal grandmother knitted a vest in the colours of the aboriginal flag for the child and compiled a book headed “Dreamtime Stories” for the child.  These do not seem to be activities in which a racist family would engage.  The vest and the Dreamtime book were produced by the paternal grandfather on the final day of the hearing.  There was no direct evidence that these items were produced by the paternal grandmother however there was no challenge to this at the time.  There was no suggestion that the paternal grandfather be recalled to give evidence to this effect.  I find it likely these items were made for the child by the paternal grandmother.  Such gestures go a long way to contesting any suggestion of racism in the Oscar family.  It is not just the fact that the items were produced but were retained and used.  I note the paternal grandfather and paternal grandmother have been separated for many years.

Witnesses in Mother’s Case – Mother

1. A great deal of evidence in the case came from witnesses from the V area.  A history of the local people was annexed to one of the Mother’s witnesses’ affidavits.  The legal representative for the Mother tendered a number of books written by Ms B.  I had reports from Professor P and Mr H together with the thesis of the V people.  The connection of this matter with the V area is somewhat tenuous.  The Mother says whilst in the V area she was discriminated against because she was always in a relationship with white males (refer paragraph 52 of Mr J’s report).  The Mother says that the Father drank heavily and took drugs and was constantly violent towards her.  I am unable to say to what extent these allegations are correct other than to note the Mother is given to making false allegations when it suits her.  I fully accept that the Mother herself drank heavily.  If the Mother’s allegations that the Father was violent are correct it is curious that she should phone the Father for assistance at the time of obvious domestic violence by Mr O.  In paragraphs 20 and 21 of her affidavit filed 29 December 2005 the Mother makes it sound as if life in V with Mr O was uneventful.  Paragraphs 20 and 21:

   “20.The house at ‘[R]’ was a nice big house and everyone had their own room.

   21.While we lived at ‘[R]’ my Koori friends and family visited daily.  I would also go and visit my friends at [L Reserve] almost daily….”

2. I accept that Mr O was a violent person who regularly engaged in acts of domestic violence towards the Mother and that life with Mr O was anything but tranquil for the child E and the child S.

3. The Mother and/or the maternal grandmother may return to the V area for occasions such as marriages or funerals but I do not expect they would stay there for any extended period of time.  The maternal grandmother’s evidence was that she left the V area because of the extent of alcoholism on the reserve.  The child E left with the maternal grandmother at the time she did even though she was only 11 years of age so she could escape the violence and conflict between her mother and Mr O.

4. I accept the Mother’s evidence as to details of her extended family who live on the L reserve.  I accept the Mother referred to her own mother by her first name and to Mrs Stace as Mum.  Mr J’s report would indicate the Mother is estranged from her own Mother and most of her siblings.

5. In paragraph 24 of her affidavit of 29 December 2005 the Mother deposes:

   “24.In February 2004 I went to [C] so that [the child] could visit his father [Mr Oscar].  [The Father] had contacted me by phone and said, “Can [the child] come to [C] for a holiday?”, I said, “Sure, but I have trouble getting there.”  He said, “We’ll come over and collect you.  You can stay here for a few weeks and then I’ll drive you back home.”  That is the only reason I travelled over there.  When I got over to [C] it was all very different.  [The Father] didn’t drive us back to [V].  He enrolled [the child] in preschool and said, “He’s not going back with you.  He’s staying with me.”

6. To the extent that this version is in conflict with the evidence given by the Father and the paternal grandfather I clearly prefer the account given by the paternal grandfather.  The most likely version of events is that the Father did receive a distress call from the Mother in February 2004 asking him to take the child away from the L reserve.  Whether that was to be permanently or for a temporary period was probably not made clear as between the parents.  The Father and the paternal grandfather arrived at the L reserve to collect the child.  They offered to take the Mother with them and she agreed to travel back to C in Northern New South Wales. 

7. I find it likely that after she had returned to C the Mother did not resume a relationship with the Father (refer paragraph 27 of Mother’s affidavit).

8. The Mother has not maintained links with her aboriginal culture in the V district.  She lives an urban existence at the present time either in M in South East Queensland or in Brisbane.  In her trial affidavit filed 7 March 2007 she says:

   “I am currently living with the Second Respondent, [Mrs Stace].”

9. In paragraphs 5,6 and 7 of that affidavit she deposes:

   “5.I stay most weekends with my friend (who I would now describe as my boyfriend) [Mr D] at his flat at […] in Brisbane.  [Mr D] works during the week and usually drives to [M] to collect me and we go back to Brisbane for the weekend and [Mr D] then drives me back to [M] on Sunday evenings. I sometimes stay at [Mr D’s] place during the week as well.

   6.I intend to continue to live in [M].  I intend to live with Mum for the foreseeable future.  However I would like to get a unit or a house of my own in the area around Mum’s house.

   7.I am no longer in a relationship with [Mr O].  I separated from [Mr O] in about June 2006.”

10. When the maternal grandmother was being cross examined by Counsel for the Father he asked her - of the various occupants in her house who resided in which room?  The maternal grandmother was doing her best to be helpful.  She listed all of the people who lived in the house but did not include the Mother.  When this was pointed out to her she then endeavoured to give explanations such as the Mother sleeps on the floor in her daughter E’s room.  I have to say that the explanations given by the maternal grandmother were singularly unconvincing.  I had the distinct impression that the times the Mother resided in this house were not nearly as frequent as she would have the Court believe.

11. A similar slip up occurred when Mr D gave his evidence.  In the course of cross examination by the Independent Children’s Lawyer he was asked about phone calls made by the Mother to the child when the child was living at G.  He was asked when such phone calls were made, whether they were on weekends or during the week?  He replied, “Normally on a Tuesday or Thursday night she would try and ring him.”

12. When it was pointed out to him that he had previously deposed to the fact that she only resided with him on weekends he replied, “Sometimes she stays – if I have things planned for the week she will stay until the Wednesday or something like that”.  That answer would not cover the fact he had just given evidence that she phoned on Tuesday and Thursday nights.  Later in his evidence he endeavoured to suggest that occasionally he worked in M in South East Queensland and then stays with the Mother at the maternal grandmother’s place.  There is no other corroborative evidence to this effect.  Once again I found Mr D’s evidence in trying to convince the Court that the Mother did not live with him during the week was unconvincing.

13. There were many times during the course of her evidence when the Mother gave answers which would be considered against interest.  She made concessions at various times.  At times it could be observed that her answers were candid and even refreshingly honest.  However there were many aspects of her evidence where I found her credibility wanting.

14. I note the following examples:

    ·In the affidavit filed 29 December 2005 (sworn 21 September 2005) at paragraph 57 the Mother denies, “Any suggestion that [Mr O] and I have a violent relationship”.

    In her final affidavit paragraphs 14 and 15 she deposes:

    “14.There was no physical violence between [Mr O] and I until an incident when we were living in […] at the end of October 2005.  This was after I swore my affidavit on 21 September 2005.  [The child] was not present on that occasion.

    15.During that incident [Mr O] head butted me and I had a small cut on my forehead.  It did not require any stiches or medical attention.  The incident was reported to the police and [Mr O] was charged with assaulting me.”

    This evidence is clearly in conflict.  I have no doubt whatsoever that Mr O regularly engaged in domestic violence.

    ·In paragraph 11 of his report Mr H noted:

    “11.[The Mother] proposes that [the child] either live with her or with [The maternal grandmother].  She presented as happy to accept either outcome, although it would seem that she is not currently in a position to assume the fulltime care of [the child]”

    The Mother denied making any such statement to Mr H during the compilation of his report.  The interview for the report was on 6 December 2006.  I prefer the evidence of Mr H to the extent it is in conflict with the account given by the Mother.

    ·At paragraph 35 of Mr H’s report he notes:

    “35.[The Mother] reported that she would be happy for [the child] to live with [the maternal grandmother].  She did not appear to be actively pursuing an order of the court that [the child] live with her.  When this option was discussed with her she seemed somewhat surprised that this would be considered but stated that she would welcome such a decision.  She indicated that she would most likely continue to live with [the maternal grandmother] if [the child] were to live with her.”

    ·At paragraph 66 of his report Mr H notes:

    “66.In relation to [the Mother’s] involvement in this matter I do not believe that she is in a position to assume the primary care of [the child].  [The Mother] by her own admission has had a troubled past.  Her separation from Mr [O], her dependence upon alcohol and her estrangement from [the maternal grandmother] and other family members are all too recent.  In my opinion she is an emotionally fragile, needy woman who has struggled to achieve sufficient stability in her life to be able to effectively provide for her children.”

    In the course of her cross examination the Mother denied informing Mr H she was not able to look after her child.  I prefer the account given by Mr H in his report.

    ·The Mother denied, in February 2004 when the Father attended at the Reserve that she had a black eye.  I clearly prefer the account given by the Father and the paternal grandfather in that regard.

    ·The Mother promised to return the child at the end of a contact period on 12 January 2005 but clearly broke her word.  I can understand she was sad at the loss of her child but whilst her conduct may be explicable on that account it leads to a situation where the Mother’s word cannot be trusted.

    ·The Mother sought paternity testing in circumstances where she knew it was not necessary.

    ·As previously noted I am sceptical that the signature on annexure “A” is not that of the Mother.

15. For the above reasons I can place little reliance on the credibility of the Mother’s testimony where it is in conflict with the evidence contained in the reports of the report writers or indeed with the evidence of the Father or the paternal grandfather other than in areas to which I make specific reference.

Intervenor’s Case

Evidence of the maternal grandmother

1. The maternal grandmother was granted leave to intervene on 12 July 2006.  In paragraph 2 of her affidavit filed 26 June 2006 in support of her application to intervene she deposes:

   “The reason I am seeking this order is that, upon invitation to do so, I have decided to ask this court to consider me as an appropriate care provider for [the child] born […] November 1999.”

2. It is apparent that the legal representatives for the Mother sensing that the Mother’s erratic behaviour and record of alcoholism was unlikely to produce a successful result for her sought the assistance of the maternal grandmother so that the Court would make an order for the child to reside with the maternal grandmother, but in fact the Mother would share the care with the Intervenor.

3. In paragraphs 12, 13 and 14 of her affidavit the maternal grandmother deposes:

   “12.At some point [the Mother] and [the child] lived together on the reserve at […].  To my knowledge and in my observation [the Father] drank excessively and misused drugs including cannabis (yarndi) and amphetamines.  He was frequently violent; I do not know whether this has changed.

   13.Sadly I am aware that [the Mother] still drinks excessively; I speculate that her present isolation from family and country may be contributing to this.  She would have been better off closer to home; I cannot live her life for her but that is what I would do in her situation.

   14.It is my opinion that her drinking stands in the way of her prospects of being a fulltime mother to [the child].”

4. In paragraph 15 of the same affidavit she deposes:

   “15.I am also aware that [the Father] is a racist.  I can see what will happen if [the child] stays with his father; he will be raised in a culture of alcohol, drug abuse and violence towards women; his aboriginal culture will be totally stifled to the extent that he will be totally alienated from his aboriginality.  He will experience severe identity crisis and live on the edge of both cultures never “belonging” to either.  This is a most unsatisfactory and cruel way to raise boys; we need our men to be strong, loving and protective not violent and abusive.”

   I find it is likely both parents drank alcohol and used drugs whilst at L reserve.  I am unable to comment on the level of violence exhibited by the Father towards the Mother.

5. The maternal grandmother has lived in M in South East Queensland for the past three years.  For the past two years she has leased a four bedroom home from the Queensland Housing Commission.  She is a 59 year old woman who does not take alcohol or drugs.  She has been an approved carer for the Department of Community Services in New South Wales.  She has looked after more than 20 children during her lifetime.  I accept that there can be no criticism of the maternal grandmother as a parent figure.  I have no doubt she could care for the child’s physical needs more than adequately.

6. In her trial affidavit sworn 31 October 2006 she states:

   “[The Mother] has at recent times moved from the Newcastle area to reside in Brisbane.  She has spent a lot of time visiting my residence.”

7. At paragraph 14 of her trial affidavit she states:

   “14.Because of the disproportion of non-aboriginal population to aboriginal population, it is inevitable that [the child] will receive a large influence from the part of him that is not aboriginal.  He will be attending a school where the majority of children will be non-aboriginal, he will be watching television, he will be listening to the radio, he will be listening to the music of the day.  This will be the non-aboriginal input that he will receive.  However, my concern is that if he does not live within his predominately aboriginal household or environment in a sense where he is residing family associations etc., he will not learn sufficient about his aboriginal heritage.  To me this is of utmost importance, if we do not need aboriginal or children of mixed heritage being raised in one aspect of their heritage only to the exclusion of another which in this case the other would be his aboriginal heritage.  He would as indicated always feel that he does not quite belong. He will know that he will have some aboriginal ancestry but he will not learn enough about what it means to be truly aboriginal.  This would be a great tragedy.”

8. At paragraph 21 of her affidavit she deposes:

   “21.[The child] came to stay with us for a number of days commencing on or about 1 October.  There were a number of delays with his father conveying him to [W].  Ultimately, [the Mother] travelled to [W] to pick [the child] up and he stayed at our residence.  While [the child] was with us [the Mother] also stayed with us as well.  It was a very happy time, everybody loved having [the child] along - ”

9. In the report of Mr H when he interviewed the maternal grandmother he observed:

   “[The maternal grandmother] was loath to criticise [the Father] stating that she had no issues with him personally.  She stated that she respected him as a person and acknowledged the support and assistance he had given to her at the time of her husband’s death.  In discussing the issues, however, [the maternal grandmother] expressed some concern that [the Father] did not encourage or support [the child]’s awareness and understanding of his aboriginality.”

   I could not envisage the maternal grandmother making such a statement to Mr H if there had been regular violence by the Father towards the Mother as previously claimed by her but as previously noted I am unable to make a firm finding.

Report of Professor P

1. Professor P is a professor at the Australian National University.  He holds a PHD in indigenous history.  He annexes to his affidavit a document entitled “Submission re: Children of Aboriginal/Non-Aboriginal Parentage” which he prepared in October 2001.

2. In his affidavit he says in paragraphs 5 and 6

   “5.It is my view it is not necessary for me to know of any more specific detail concerning this case; the findings and conclusions expressed by me in my submission, should in my respectful opinion form the guideline or policy to be adopted by this Honourable Court in assessing appropriate placements/living arrangements for children within that category under discussion.

   6.It is my view that the question of aboriginality should rank very highly in criteria to be considered in matters such as this, and in the absence of any overriding welfare issues to the contrary, it is my opinion, based on my expertise that it is very much in the best interests of this child to be placed into an aboriginal environment for a substantial part of each year.”

3. In his report Professor P states at paragraph (b) of Part II under the heading “Are Aboriginal Children Different from Non-Aboriginal Children?”:

   “The thrust of research amongst urban aboriginals in recent decades has been to emphasise difference where previously little difference between indigenous and non-indigenous people was believed to exist.  Today anthropologists realise that urban aborigines, whilst seeming to following similar lifestyles to other Australians, in reality differ profoundly in matters of history, experience, language, kin structure, world view, child rearing practice, attitudes and methods of dispute settling.  A white parent cannot be expected to or understand these differences, still less realise that the part aboriginal child also possesses, and has the right to share, a separate set of relatives with a separate history, experiences, value system and world view.”

4. At Part III paragraph (a) he notes:

   “However it is my belief drawn from more than 20 years experience as a historian of aboriginal Australia, as a counsellor of removed children and as an advisor to the New South Wales Link-Up Organisation, that part-descent aboriginal children raised in a totally non-indigenous household are likely to become much less confident and less secure adults than those raised within an aboriginal environment.  This is so even when an aboriginal child is raised solely by its non-aboriginal real parent.  In the event of a foster or adoptive placement the love for the parent and adoptive siblings can be offset, in the teenage years, by bitterness or regret at having been removed from the natural family. 

   The argument is (sic) favour of being raised within an aboriginal culture are (sic) best expressed by consideration of what often happens when an aboriginal child is raised in a non-aboriginal environment.  Factors are:

   (a)the parents failing to comprehend the depth of antipathy felt by their children from the wider non-aboriginal community;

   (b)the parents own (sometimes unconscious) antipathy towards aboriginality;

   (c)the parents’ inability to offer a support network for their children hurt by discrimination or racist slurs;

   (d)in the case of divided custody, antipathy towards aboriginality as represented by the non-aboriginal partner or the aboriginal side of the family.”

5. At page 10 of his report, he concludes:

   “Other aspects of the case being equal therefore, it is my submission that it is greatly in the child’s interest to be placed with his aboriginal family for a substantial part of each year.  In summary, this is because:

   (i)it is much less likely to be discriminated against within the family domicile;

   (ii)if discrimination occurs outside the home the child will have a network of psychological support from the aboriginal home, family and community which is unavailable in the non-aboriginal community;

   (iii)the child is more likely to grow up as a constructive and well balanced adult if it has a positive self image of itself as aboriginal, and if it is learned how to deal with discrimination and prejudice.”

1. In the penultimate paragraph of his report Professor P notes:

   “It is clearly legitimate, in my view, for Australian Courts to redress the balance of child rearing in favour of the child’s aboriginality in part because the indigenous people have suffered so long from the excesses of white authority in depriving them of their children.  Even today, a Court granting sole custody to a non-aborigine parent or family may have a similar effect as did the seizure of children a century ago.”

2. In the final paragraph he notes:

   “By contrast, a Court order allowing a child to spend a fair proportion of each year within its own culture will help redress the balance of inequality, ensure sound leadership for the next generation of indigenous communities, and will provide the most fertile ground from which to grow a psychologically healthy, balanced and socially constructed aboriginal citizen of Australia.”

Evidence Called by the Independent Children’s Lawyer

Report of Mr J

1. Mr J is a psychologist in private practice in Northern New South Wales.  He prepared a report dated 4 January 2006. 

2. In his report Mr J recommended that the child continue to reside with his father and that the Mother have contact half school holidays and the whole of the school holidays in term 2 together with regular phone contact and contact any time the Mother is in the Northern New South Wales area.

3. Under the heading “Assessment” at paragraph 89 of his report Mr J notes:

   “89.[The child] would seem to be well settled with his father.  On the day of his assessment he was well presented and talked quite openly about his experiences.  There was nothing arising from the assessment of [the child] to suggest he is not being adequately cared for by his father.  He expressed a desire to continue living with his father.

   91.[The Father] presents with anti-social tendencies, is described in terms to suggest he is impulsive and reactive and seems to be hostile and suspicious.  However despite his concerns about [the Mother] he is able to acknowledge some of her positive parenting qualities, and the fact that he does not portray her as, “all bad”,  augers well for the continuation of a supportive role regarding contact should the Court decide that [the child] continue to reside with his father.

   92.[The Mother] quite clearly has a serious alcohol abuse problem.  There is a history of violence with this abuse and there are indications that she is a highly vulnerable and emotionally volatile person.  She does not accept responsibility for her own actions and tends to blame others, including her extended family, for her problems.  Her very negative attitude towards [the father] is a concern regarding her capacity to be supportive of contact should [the child] reside with her.

   94.As noted at the beginning of the report, although aboriginality is a factor, it is not the most significant factor.  The issue is not about aboriginal care versus white care.  Both [the Father] and [the Mother] are the child’s parents and in my view to take [the child]’s aboriginality out of the context of parental capacity would completely miss the point of what has to be determined.  Neither parent presents as ideal, but apart from allegations made by [the Mother] that [the Father] continues to drink, uses intravenous drugs and is a heavy consumer of marijuana no evidence of this was produced.  However there is evidence that alcohol related difficulties continue to present in [the Mother’s] life, as indicated by an alcohol fuelled, violent episode between herself and Mr [O] only a few weeks prior to the assessment.

   95.In terms of [the child]’s aboriginality there are a number of strategies that can ensure maintenance of his cultural awareness should the Court order his continued residence with the father.  The first is by way of regular contact with his mother; the second is through holiday periods with his mother during which time she can promote and arrange contact with his extended family; the third is through his school, as [C] has a significant aboriginal population.  Because of this there are several aboriginal community agencies in [C]  and I believe it would be appropriate for [the Father] to present a plan to the Court as to how he will ensure [the child]’s involvement in the wider aboriginal community [C].  This would represent a fourth means by which [the child]’s cultural awareness is maintained.”

4. Exhibit 11 in the proceedings was the Father’s three page handwritten plan.  It was generally accepted that the plan was extremely limited and totally inadequate from the type of plan envisaged by Mr J. 

5. At paragraph 52 of his report Mr J records a portion of his interview with the Mother:

   “According to [the Mother] she cannot rely on her extended family for support as they are against her for living with white men.  She then proceeded to blame her parents for the poor state of her life, advising she was “given away” at the age of two years and her daughter was “stolen” from her by [the Mother’s] foster mother.  She said she felt hurt and abandoned by her family and betrayed by her daughter [E] who she said told lies to [the Mother’s] foster brother about being hit by [the Mother].  It was [the Mother’s] assertion that these events had caused her to drink a lot, commenting she had not stopped drinking since [the Father] took [the child] from her.  She said her loss has also caused her to think about suicide.”

6. Much has altered since Mr J prepared his report.

7. The report was prepared some fifteen months prior to the hearing.  There is no updating report.  The Mother is no longer with Mr O; the Father is no longer with Ms TP; the Intervenor, the maternal grandmother has intervened in the proceedings.  Mr H has prepared a report and Professor P’s report has been filed.

8. Mr J’s response to all this was to note, “The additional material has certainly complicated the picture.”

9. Of the plan that the Father had been asked to prepare he considered it, “Grossly inadequate.”

10. In the course of cross examination by the legal representative for the Mother, Mr J conceded that his report was, “Essentially a no-goer”, on the basis that so much has changed in the intervening period.  He added, “It would be foolish to say I can hold any firm view.”  This was particularly so as he had not interviewed the maternal grandmother who was now an interested party.

11. Whilst the conclusions Mr J makes may be a ‘no-goer’, I am satisfied there is value in his report in the observations he has made of the parties.  I believe he has accurately assessed the personality profile of both the Father and the Mother.  He has heard the views of the child and recorded those.

12. I have no difficulty in accepting the validity of the observations that Mr J records in his report.

Report of Mr H

1. Mr H is a Family Consultant in Darwin.  He gave evidence to the Court by way of telephone link up.  Approval had been given for him to attend from Darwin to the northern rivers area to prepare a report focused on aboriginal issues.  At paragraphs 12 and 13 under the heading “Issues in Dispute and Issues Identified During Assessment” he notes:

   “12.The central issue in this dispute is [the child]’s aboriginal heritage and the capacity of the Father to promote and support [the child]’s right to enjoy, and participate in his aboriginal culture with others who share that culture.

   13.A further issue is [the child]’s relationship with [the maternal grandmother] and her proposal that [the child] reside with her even though she has had little involvement in his care over the preceding years.”

2. Mr H proceeded to interview the Father, the Mother, the maternal grandmother, Ms TP (the Father’s then partner) and the child.  At paragraphs 46 and 47 of his report when considering issues concerning the child and his various relationships he observes:

   “46.[The child] appears to identify as aboriginal.  He was able to describe the aboriginal flag and he was able to identify simple aboriginal motifs.  He was able to name several members of his aboriginal family who live in V.  He also spoke fondly of his father and his father’s family, including his paternal grandfather.”

   47.[The child] generally appeared relaxed and comfortable in the care of [the Father] and Ms [TP].  He was only seen briefly in the care of his father due to [the Father] departing with [the child] prior to the conclusion of the interviews.”

3. At paragraph 48 he details his observations as to the child’s interaction with his mother:

   “48.[The child] was observed in the care of [the maternal grandmother], [the Mother] and [the child E] during the luncheon break, as well as in the children’s play room.  [The child] was clearly pleased to see his aboriginal family and related to them in a warm and confident manner.  He was excited to be spending time with his mother and related to her in an affectionate and playful manner.  During the observation [the maternal grandmother] tended to take, ‘a back seat’ and allowed [the Mother] to engage freely with [the child].  During the observations [the child] related mostly to [the Mother] and [E] although he also entered into conversation with [the maternal grandmother] at times.  [The Mother] was attentive to his care and was keen to engage [the child] in conversation.  [The Mother] and [E] had many questions for [the child] about family and friends and [the child] was happy to be the focus of their attention.”

4. At paragraph 60 Mr H stresses the importance of cultural issues in this matter:

   “60.The cultural issues in this case are an important consideration for the Court in determining [the child]’s best interests.  However, aboriginal cultural considerations are one factor amongst others that need to be considered.  The nature of [the child]’s relationship with each of the parties is also a relevant and important consideration.”

5. At paragraph 67 he expresses the view:

   “67.[The Mother] is supportive of [the child] living with [the maternal grandmother] and I believe she would defer to [the maternal grandmother’s] authority on issues associated with [the child]’s welfare and development.  [The maternal grandmother] is also confident that [the Mother] would not challenge her role as [the child]’s carer.” 

   This portion of the report was written at a time when the Mother was simply seeking orders that the child live with the Intervenor and that she would then become a member of that household.  On the third day of the trial leave was given for the Mother to apply for an order that the child live with her.  Given the temperament of the Mother I would be far from confident that the Mother would defer to the maternal grandmother’s authority.  I would have concerns for example if the Mother elected to take off with the child what actions the maternal grandmother would take?  Would she apply for a recovery order?  Would she notify the Father?  These issues were not canvassed but I would have concerns that the relationship between the maternal grandmother and the Mother would be as deferential as suggested by Mr H.

6. At paragraphs 68 to 71 of his report Mr H makes a recommendation that the child live with the maternal grandmother and that the child spend time with the Father during school holidays and on other occasions as agreed to by the Father and the maternal grandmother.  The Mother would spend time with the child as agreed to with the maternal grandmother.

7. In the course of cross examination it was suggested to him that there had been numerous changes to the arrangements for both parties since the time of his report.  He indicated none of the changes impacted on the recommendation made in his report.  Mr H denied his report was a single issue report focused on the issue of aboriginality.  He considered it to be an all rounded family report.

Exhibits

1. Exhibit 1 consisted of letters from the child’s schools, the C Public School, the G Public School and the CW Public School.  The first letter dated 13 February 2006 confirms that the child settled well into his 2006 class group.  In 2006 the school had an enrolment of 560 children with approximately 96 of those children (17%) being of aboriginal family heritage.  On the third paragraph of that letter the Principal has noted:

   “Our school is mindful of the importance of indigenous culture to these children and their families.  In response to this need and that of the whole school community to know, understand and respect indigenous culture our school has a number of protocols, curriculum initiatives and activities which are incorporated into school life.”

   Thereafter the Principal lists a whole series of initiatives the school has developed.  He concludes the letter by noting:

   “[The child] progressed well in 2005 receiving one of three class awards at the school presentation day.”

   The letter from the G Public School Principal notes that the school has fourteen students, half of whom have aboriginal family heritage.  He concludes the letter by noting:

   “Initial assessments have indicated that [the child] is a capable and enthusiastic student whose development in English and Maths is age appropriate.”

   The third letter is from the CW Public School dated 2 March 2007.  It simply notes that as part of the aboriginal education at that school the following programs will operate in 2007:

   “Right to Read Program.

   Homework Centre.

   Oral Language.

   [Aboriginal] Language.”

2. On the basis of these reports it would be fair to conclude that the child’s education is progressing reasonably well whilst in the Father’s care.

3. Exhibits 2, 3 and 4 consisted of a series of photographs, some in packets and some framed.  It is the Father’s evidence that framed photos of the Mother were kept on display in his household.  I have no reason to doubt this testimony from the Father.

4. Exhibits 5 and 6 are the Dreamtime stories book put together by the paternal grandmother and the woollen vest knitted by the paternal grandmother.

5. Exhibit 7 consists of a series of certificates awarded to the child as part of his schooling program and a 2007 calendar with a photograph of the child on it.

6. Exhibit 8 is a transcript of the Parramatta Court proceedings on 8 April 2004.  It appears that the Mother had orders in her favour and that the Father had made application at some stage to vary those orders.  He had at some point in time attended at the Local Court at either Dubbo or Walgett and had the proceedings transferred to Parramatta for the 8 April 2004.  Rather than seeking orders in his favour he simply sought that all orders be discharged.  I am unable to make any further observations other than those previously made.

7. Exhibit 9 is two photos on A4 paper produced by the Mother.

8. Exhibit 10 consists of a letter written by the maternal grandmother to the Father. The letter is undated but the maternal grandmother was living in South East Queensland at the relevant time.  On my estimation she has been at her current address for about the last 2.5 years.  It would appear from the context that the letter pre-dates February 2004 as it refers to the child still being in the Mother’s care.  In the letter the maternal grandmother notes:

   “Well [Father’s name] is yuse still keeping in touch with little [child], I hope you are because [Ms F Stace] says he is real bony.  [The Mother] is on the grog drinking and fighting with [Mr O].  She is over the camp drinking and running around with […] boyfriend.  […] and […] is going to give her a bashing when they catch [the Mother] [Father’s name] – I hope you go down and get the little baby boy from her.  Is you taken [the Mother] to Court for little [child] well I hope so - - don’t forget little [child] do something about him please.”

   Where the Intervenor has written such a letter to the Father it is difficult for her to now suggest that the environment in which the chid is living is not an appropriate one as she had been urging the Father to collect the child from the Mother because of her concerns about the Mother’s lifestyle.

9. Exhibit 11 consists of the handwritten documents by the Father as to how he would introduce the child to aboriginal culture. 

   I do not intend to make any further comment about this aspect.

10. Exhibits 12 – 20.  These documents were part of subpoenaed material tendered as a bundle.

11. Exhibit 12 is a police report of an incident in August 2006 where the vendor of a second hand vehicle wanted to repossess the vehicle from the Father because he had not been paid for same.  Other entries in the Father’s police records include anonymous phone calls to the police alleging the Father is involved in drug trafficking.  For the entries for 23 June 2004 it would appear the informant was Mr O.  It is possible the other ‘dob in’ phone calls were also made by either Mr O or the Mother.  I am unable to make any finding on this aspect.

12. There is also a detailed report in this document of the incident of 10 February 2007 when Mr HK, the Father’s step-brother damaged the paternal grandmother’s vehicle and house. 

13. Exhibit 13 is the criminal history of the Father.  He has convictions for breaking and entering and stealing in 1990 together with driving offences and an offence of self-administering a prescribed substance.  It would appear the last conviction was in 1995.

14. Exhibit 14 consists of the records of the Father from the C Hospital.  The records indicate that in May 1993 he presented requesting admission for alcohol withdrawal.  Another entry which appears to have been taken at the same time in 1993 records the history of alcoholism for the past ten years and was in detox one and a half years ago.

15. The Father’s recent hospital records were also available.  They have not been tagged by any other legal representatives nor was my attention drawn to any such documents.

16. Exhibit 15 – Community Health Records.  One of the entries marked for 11 October 2004 records an attendance by the paternal grandmother with the child for the child’s speech.  The record indicates that the child back in those days moved freely between the paternal grandfather’s and paternal grandmother’s houses.

    I am not sure why the Mother was asking for these records to be read as they seem to indicate appropriate attendance by the paternal grandmother attending to the child’s needs.

17. Exhibit 16 involves the documents from the Department of Education being the child’s enrolment form.  For details for the Mother/Guardian, the Father had written ‘not applicable’.  In my experience, this is commonly done by parents.  In this instance it reflects the Mother’s history of alcoholism and her itinerant ways as much as the Father’s antipathy.

    I accept that that reflects poorly on his attitude towards the Mother.

18. Exhibit 17 details the Department of Education attendance records for the child.  In term 2 of kindergarten it would appear that he missed seventeen days and in term 3 fifteen days.

    I would not regard this as being particularly significant.

19. Exhibit 18 involves the police records for the Mother and Mr O.  An incident of 1 November 2005 is reported in detail.  This is the incident where Mr O head butted the Mother causing a gash approximately 2 to 3 centimetres on the forehead just above the left eyebrow.

20. Exhibit 19 – Hunter Area Health.  Details an admission by the Mother on the 13 September 2004 for alcohol dependence.  She was discharged on 15 October 2004.

21. Exhibit 20 is the criminal history of the Mother and Mr O and accompanying police records.  It reports an incident on 2 January 2003 of an altercation between the Intervenor (the maternal grandmother) and the Mother.  There is a further entry of the 19 December 2002 of an incident involving conflict between the Intervenor and the Mother.

22. Exhibit 21 - is a study of the traditional ownership of land by Associate Professor MP and others.

23. Exhibit 22 consisted of two books entitled the … Mob Volume 1 and Volume 2 by Ms B.  Exhibit 22 was tendered on the basis that I would read marked pages in the two books.  No such pages were marked.  I have however scanned the contents of exhibits 21 and 22.

Submissions of the Parties

1. Independent Children’s Lawyer - the Independent Children’s Lawyer prepared written submissions in a Summary of Argument document filed on 9 March 2007.  At paragraphs 7 and 8 of that document he notes:

   “7.In the present case - - the task of the Court can be formulated in this way;

   having regard to the child’s best interest, what arrangements should be put in place for [the child]’s care, welfare and development so that he has a meaningful relationship with both parents, and other people significant to him, while ensuring he is safe from harm, neglect or abuse?

   8.A secondary question in this case is the importance of making orders which allows the child the right to enjoy his aboriginal culture including the right to enjoy that culture with other people who share that culture.”

2. The evidence from Mr H and Professor P would indicate that the Independent Children’s Lawyer in paragraph 8 does not go far enough.  At paragraph 54 of Mr H’s report he notes:

   “54.Reference to the experience of aboriginal children in the circumstances referred to above draws attention though to the traumatic experience of aboriginal experience who were excluded from contact with their aboriginal family and who have been denied the right to participate in their culture.  The deleterious effects of this later in adjustment in adolescence and adult life have been well documented and are referred to in the third and fourth themes stated above.”

3. The evidence would indicate that it is important for the child to be integrated with and fully accepting of his aboriginal culture as far as possible.

4. At paragraph 16 of his written submissions the Independent Children’s Lawyer under the heading “Parental Responsibility” observed:

   “16.It seems from the material that the issue of joint parental responsibility may not be in dispute, however the question in this case is whether the parties are applying for joint and several parenting responsibility under section 61C or whether the parties are applying for orders for shared parental responsibility under section 61DA.”

5. Apart from this reference there are no submissions on this important issue.  All parties sought orders for short and long term care and responsibility to be shared by the parents and the Intervenor.  Whilst I am somewhat sceptical of such an arrangement working I am not minded to make an order contrary to the wishes of the parties.

6. At paragraphs 60 and 61 of his report the Independent Children’s Lawyer notes:

   “60.At paragraphs 57, 58 and 59 [Mr H] considers what is in the opinion of the ICL a crucial question in this case.  That is, whether [the child] can effectively participate in, and enjoy his aboriginal culture by spending time with the Mother’s family during holidays.  The report writer’s answer doubts that this can be achieved due to reluctance on the part of the Father to promote the child’s relationship with the Mother and her family.

   61.It is therefore crucial in this case that the Court considers and makes findings in respect to the Father’s proposals aimed at encouraging [the child]’s participation in his aboriginal culture and his attitude and capacity to facilitate and promote [the child] spending time with his Mother’s family.”

7. As noted earlier, the Independent Children’s Lawyer in the course of his final submissions indicated that his recommendation would be that the competing proposals be between the Intervenor and the Father.  He indicated he had not shifted to the Intervenor’s side but stood, ‘in the middle’.  He submitted that orders should provide for as much communication as possible between the various parties but acknowledged that this would have to be limited to school holidays and long weekends because of the distance between the various households.

Written Submissions of the Father

1. Counsel for the Father commenced his closing submissions by producing an Outline of Argument document dated 15 March 2007.  These submissions, to my mind are succinct, relevant and accurate. 

2. When considering the issue of the primary consideration in the legislation as being, “The benefit to the child of having a meaningful relationship with both of the child’s parents”, he observes:

   “The relationship of the child with the Father is, in this case adversely affected by an order placing the child with [the maternal grandmother].  Further there can be no guarantee that by placing the child with [the maternal grandmother] the relationship with the Mother is necessarily enhanced.  The Mother does not live permanently with [the maternal grandmother]; the Mother seems not overly involved with [E], and who is to say that that will not be the pattern with [the child].  Shortly put, the alternative being put up to [the child] living with his father is one which could well result overall in a lesser relationship with his parents, which of course runs counter to the aim of the Act (section 60B).”

3. When discussing the child’s views he refers to Mr J’s report where the child expressed a preference to remain with his father and notes that Mr H had not interviewed the child with a view to having him express any such wishes.

4. At page 3 of his submissions he notes under the heading of the “Need to Consider the Nature of the Relationship of the Child with Other Persons (Including any Grandparent or Other Relative of the Child)”:

   “[The maternal grandmother] is the person who comes to mind in this regard, but one could fairly ask why by way of comparison to [the paternal grandfather].  There has been very little involvement by [the maternal grandmother] in the life of [the child].  [The maternal grandmother] it could fairly be said has her hands full with a number of children in her care.  [The paternal grandfather] clearly enjoys the relationship he has with [the child] and it can only be thought to be positive for [the child].”

5. I accept the force of the submissions made by Counsel for the Father.

Submissions on Behalf of the Mother

1. The legal representative for the Mother prepared written submissions in a Case Summary document which was produced at the commencement of the hearing.  He also made detailed oral submissions in his closing address.

2. Apart from canvassing much of the evidence in the course of the submissions it was submitted that the Court could make a conditional order providing for the child to live with the Mother on condition that the Mother resided with the maternal grandmother.  I accept that it is within the power of the Court to make such an order but would find such an order could well be unworkable and would in all probability lead to further litigation.  In this regard I refer to the observations I made in relation to Mr H’s observations that the Mother would defer to the maternal grandmother.

3. The legal representative for the Mother submitted that the Court should accept the Mother’s evidence that she won’t drink again.  He suggested if there was any contravention of that the Mother be ordered to an alcohol rehabilitation course and the Mother would consent to such an order and if that occurred the child should be placed in the care of the maternal grandmother.

4. I am not accepting of the basic premise that the Mother will not drink alcohol again.  I am not accepting that it is the Court’s function if a breach be established that the Mother automatically attend an alcohol rehabilitation course.  At all times that remains a matter for her.

Intervenor’s Outline of Argument

1. Written submissions were produced by Counsel for the Intervenor.  She canvasses the evidence in this matter and makes appropriate relevant submissions in support of her client. 

Conclusion

1. I propose to order the child live primarily with his father rather than in the primary care of the maternal grandmother or the Mother.  My reasons for so concluding are as follows:

   Section 60CC is headed “How a Court Determines What is in a Child’s Best Interests”. It divides such considerations into primary considerations (subsection (2)) and additional considerations (subparagraph (3)).  Subparagraph (2) is in the following form:

   “(2)     The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents - -”.

2. I accept the submission of the Independent Children’s Lawyer that the issue involves a determination whether the child should primarily live with the Father or the Intervenor.  The case for the Mother has varied in its presentation as previously noted.  Clearly section 60CC(2)(a) is a section which heavily favours making an order in favour of the Father.

3. On behalf of the Intervenor it was suggested that the best way of ensuring a ‘meaningful relationship with both of the child’s parents’ was to place the child with the Intervenor as she would promote such relationship.  I accept that it is likely the maternal grandmother would be complying with any Court orders for the child to spend time with either of the parents.  However, the converse of this is that the reality is the parents would have to share school holiday periods between them.  I make this conclusion on the basis the Mother would not ordinarily be a member of the Intervenor’s household.  I do not interpret subsection 2(a) as meaning it is preferable to place the child with a non-parent where there is a ‘good enough’ parent available.  I am more than satisfied that the Father would be compliant with Court orders for contact.

4. Cross examination of Mr J by the legal representative of the Mother would indicate that the Mother had contact visits for three weeks in January 2005, fourteen days in April 2005, ten days in July 2005 and in September a period of fourteen days for a total of 59 days.  This is hardly the conduct of a person who is frustrating Court orders for contact.  There was evidence that on a recent occasion where the Mother was permitted to have contact for a period of three weeks, the contact was aborted after a period of approximately nine days as the Mother and the maternal grandmother had to attend a funeral.  Why they could not make arrangements for the child to attend the funeral with them was not made clear.

5. I am satisfied that the letter and the spirit of the law enunciated by Parliament in paragraph 2(a) is best met by placing the child in the primary care of a parent rather than a non-parent provided that parent is able to permit a meaningful relationship with the other parent.

6. I would be more cautious if the child was to be placed primarily in the Mother’s care.  Because of her at times chaotic lifestyle I would be less confident that she would be able to comply with Court orders for contact to the other parent or to the Intervenor.

7. The Father was naturally suspicious and lacking in trust after the Mother failed to return the child in accordance with the agreement in December 2004/January 2005.

8. I propose to put in place orders that the Mother is to spend time with the child whilst living at the maternal grandmother’s home.  This will ensure reliability and predictability in the arrangements.  It would also ensure that Court orders are strictly adhered to.  If the Mother elects not to avail herself of such opportunity to see her son in the Intervenor’s home that is a matter for her.  I would see benefit to the child living in a safe environment such as could be provided by the maternal grandmother if the Mother resided there on a regular basis.  I am far from satisfied this would be the case.

9. I was reasonably impressed with Mr D as a witness and as a person.  He holds a fulltime job.  There is no evidence he has any problem with alcohol or drugs and he has known the Mother since childhood.  I believe he would be a good influence on her.  I gained the impression they have a close relationship together.  The consequence of the close relationship in my view is that the Mother would elect to spend ever increasing periods of time in Brisbane assuming for the moment that she does not already do so.  I do not expect the Mother would want to stay in M in South East Queensland for extended periods of time whilst Mr D is her partner and he is residing and working in the Brisbane area.

10. I have already made my observations that it is unlikely in my view that the Mother would defer to the maternal grandmother in all matters of parenting and parental responsibility.

11. The presentation of the Mother’s case changed.  She initially sought that the child live with her.  When it seemed unlikely she would be successful in this regard the Intervenor was approached to seek orders.  I accept the force of the submission made by Counsel for the Father that such an approach was largely done in the interests of the Mother and not in the interests of the child.  On day three of the four day hearing orders were sought on the application of the legal representative of the Mother that the child live with her and the child would spend time with the Intervenor as agreed.

12. If the Mother was to, for example, have the child in Brisbane, I expect that she would have considerable difficulty in complying with orders to allow the child to spend time with the Father and the Intervenor. 

13. Leaving aside the status quo, an order moving the child from his present environment with his father would involve three options:

    (i)The child living with the maternal grandmother in M.

    (ii)      The child living with the Mother in Brisbane.

    (iii)     The child living with both in M.

    I have already expressed a strong view that I find the third option the least likely.

Option of the Child Living with the Maternal Grandmother

1. The child has had little interaction with the maternal grandmother for the past five years.  If not invited by the lawyers for the Mother to participate in the litigation I am confident she would never have become involved.  I accept the child would be well cared for in the Intervenor’s environment but note that the other occupants apart from the maternal grandmother are all teenage children.  Those children may well spoil the child as opined by the Intervenor but for the most part it would require the child having to adapt to a completely new environment:

   ·A new school – a much larger school with fewer aboriginal children enrolled.

   ·New friends – there is no evidence he has a network of friends his own age in the M environment.

   ·Adjustment to a new fulltime carer with the maternal grandmother and the other occupants.

2. I expect the maternal grandmother would be very busy in her role of caring for a household with five children – six if the child was to be there.

3. I expect the maternal grandmother would do her utmost to inculcate in the child a knowledge and appreciation of aboriginal culture and history but the opportunities for doing this would be somewhat limited.  It would have the benefit as referred to by Professor P and Mr H of the child being in an aboriginal environment where he could feel safe from pressures faced by aboriginal children in the general urban environment.

4. He would be sharing a room with one of the other children who would be about six years older than him.

5. On my understanding the rooms are occupied by children J and E, a child D would share with the child, there is a spare room – presumably kept available for times when there are visitors such as the Mother and in a double garage at the rear of the house, children L and G, both teenagers reside.

6. There would be an obvious benefit in the maternal grandmother’s residence of being reunited with his half-sister E who is fifteen years of age.  Other than the Mother’s word of a close relationship between E and the child there is no evidence to indicate how long E will continue to remain a member of the maternal grandmother’s household.

7. In short, I accept the force of the submission by Counsel for the Father that to take the child out of the safe, stable environment of C in Northern New South Wales and place him in the M environment in South East Queensland involves a gamble with a seven year old child’s future.  The gamble is not justified simply on the basis of the furtherance of the child’s aboriginal identity.

8. I would not countenance the option of placing the child with the Mother.  I would have to be satisfied she has had a dramatic change in lifestyle.  I am not satisfied her lifestyle is sufficiently stable particularly where she has sought to mislead the Court in so many different aspects.  Mr H at paragraph 66 of his report described the Mother as:

   “An emotionally fragile, needy woman who has struggled to achieve sufficient stability in her life to be able to effectively provide for her children.”

9. I do not accept that a conditional order placing the child in the Mother’s care as long as she remained in the M environment would be a satisfactory outcome for the reasons previously stated.

10. The report writers make similar observations of the Father being an anxious and intense individual who presented as defensive and wary.  I accept the Father does feel threatened by the ongoing litigation.  He suspects a ruse by the Mother in involving the Intervenor in his cause.  When the child came into his care in February 2004 whether the Mother gave permission or not, I assess he was determined not to allow the child to return to what he perceived to be the alcohol fuelled violent environment in which the Mother then lived.

Criticisms of Father – Detox Centre – Recent Incident with Brother Mr HK

1. For any criticisms that may be made of the Father’s household he has provided a generally stable environment.  I make this statement with full appreciation of the fact that he has lived with his son in three different households in the space of three years and the child has attended three different schools.

2. Above all else I am confident the Father will promote the child’s aboriginal heritage or at the very least would not do anything to subvert it.  The Father is not a well educated person and he is not a sophisticated man.  At the same time I accept he is not racist.  At paragraph 60 of the Independent Children’s Lawyer’s submissions he cast doubts on the ability of the Father to promote the child’s relationship with the Mother and her family.  I have no such doubts.  There is good will on the part of the paternal grandmother and the paternal grandfather towards the child’s aboriginality.  As long as the Father could be assured that the child would be safe I expect he would readily comply with Court orders.  If the Mother is required to spend time at the maternal grandmother’s household for contact periods I am confident the Father would be reassured.

Section 60CC

Subsection 2(b) the Need to Protect the Child from Physical or Psychological Harm from Being Subjected to, or Exposed to, Abuse, Neglect or Family Violence.

1. I find it unlikely the child will be subjected to harm within the terms of this subsection in either the Father’s household or the Intervenor’s household.

2. Much was made of an incident in February this year involving the Father’s step-brother Mr HK.  The Father and his mother have taken out Apprehended Violence Orders against this person.  The child is unlikely to be involved in violence in either household.  I am prepared to consider that this incident was a one off incident.

3. I would be less confident of the child being protected from the harm described in the subsection if the child was placed in the Mother’s care.  I expect there would be little risk if the Mother lived on a permanent basis with the maternal grandmother.  I expect there would be little risk of harm to the child if the Mother continued to reside in a permanent relationship with Mr D.  However, having regard to the Mother’s chaotic past I could not be confident that she would remain with the child in either of these environments if the child was placed in her care.

Paragraph Subsection 3 – Additional Considerations

1. Any views expressed by the child – previously canvassed.

2. The nature of the relationship of the child with:

   (i)                  each of the child’s parents; and

   (ii)                  other persons (including any grandparent or other relative   of the child).

   The evidence indicates the child has a good relationship with his Father and the paternal grandfather.  The paternal grandmother was not called as a witness.  There may be many reasons for this including the close involvement in the litigation of the paternal grandfather.  The Father only moved to reside in his mother’s residence in relatively recent times.

1. I would not be overly critical of the failure to call the paternal grandmother.  There has been no adverse criticism of her role in the child’s life.  On the contrary the evidence available would indicate she has been a positive influence.  I have referred to the report in the medical files of her taking the child for a speech pathology assessment.  I have also referred to the fact she has knitted a garment in the colours of the aboriginal flag.  I was particularly impressed with her efforts on preparing the Dreamtime story book.

2. The evidence as found in the report of Mr H would indicate the child is comfortable with the Mother, his half-sister E and the Intervenor. 

3. In relation to this subsection I note the submissions by Counsel for the Father of the commitment of the paternal grandfather to the child.  I expect he has a much closer relationship and bond with the child than the Intervenor.  I am not being critical of the Intervenor it is just that the paternal grandfather has had greater opportunity for the development of such a relationship.

The Willingness and Ability of Each of the Child’s Parents to Facilitate and Encourage a Close and Continuing Relationship Between the Child and the Other Parent

1. In the giving of evidence the Father was able to make some positive comments about the Mother.  For her part the Mother found it very difficult to make any such positive comments about the Father.  The Intervenor and the Father were able to make favourable comments about their respective households.

2. Notwithstanding the level of hostility between the parents, I had the distinct impression all parties were prepared to act in the best interests of the child.

3. I believe the Father will facilitate a close and continuing relationship between the child and his mother and between the child and the Intervenor.  I would be less confident the Mother would be able to do the same because of her entrenched anger combined with her at times chaotic ways.

The Likely Effect of any Changes in the Child’s Circumstances

1. I expect the child would be devastated if removed from the C environment.  It would involve a dramatic upheaval in his life and should only take place if there were convincing reasons so to do.

The Practical Difficulty and Expense of a Child Spending Time With and Communicating with a Parent

1. The distance between C and M is approximately 250 kilometres.  The evidence would indicate it is a three hour drive.  The distance between M and Brisbane is approximately 100 kilometres and takes approximately one hour and fifteen minutes by vehicle.  Because of the distances involved the child would only be able to spend time in the other household on school holidays.  The parties are agreed on mutual terms for time spent including the whole of the Easter and spring school holidays.  The Intervenor and the Father are prepared to share the cost of transport.  They are agreed the changeover should occur at W a town approximately half way between C and M.  On many occasions it is preferable for one party to do the whole of the driving in collecting the child and the other party be responsible for returning the child.  However, the parties prefer to have a changeover at a neutral venue.  I can only observe the changeover at W has worked in the past.  It was not raised as an issue at any time during the course of the proceedings before me.

The Maturity, Sex, Lifestyle and Background of the Child

1. Not relevant.

Aboriginal Culture – Section 60CC(3)

“If the child is an aboriginal child:

(a)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

(b)the likely impact any proposed parenting order under this part              will have on that right.”

1. The child’s ability to be inculcated in aboriginal history, culture and community is likely to be fostered in a number of ways:

   ·During school holidays when spending time with the Mother and the Intervenor.

   ·Through the education system. C in Northern New South Wales has a significant aboriginal population and I was informed that the CW Public High School has a high level of aboriginal students enrolled. It is one of the few schools, in my experience, where an aboriginal language is actually taught as part of the curriculum.

   ·In the Father’s household I would accept nothing would be done to alienate the child from his aboriginal heritage.

   In the context of this case this factor (subsection (h)) is important and has been given considerable weight in the balancing exercise which must be undertaken.  However, it is not sufficient to gamble on removing a child from an environment he has been in for the past three years where he is well settled.

The Attitude to the Child and to the Responsibilities of Parenthood Demonstrated by Each of the Child’s Parents

1. Previously canvassed.  I accept that each parent has been found wanting on occasions.

Any Family Violence Involving the Child or a Member of the Child’s Family

1. There has been violence in the past between the parties.  I would not expect violence to figure in the environment of either the Father’s or the Intervenor’s households.  There was the incident involving the step-brother of the Father in February this year.  That does appear to have been a one off incident.

Any Family Violence Order that Applies to a Child or a Member of the Child’s Family

1. No such orders have been taken out.

Order Least Likely to Lead to the Institution of Further Proceedings

1. I believe an order placing the child in the care of the Mother conditional on her living with the Intervenor would be an order likely to lead to the institution of further proceedings because of the possibility of conflict between the Intervenor and the Mother on parenting strategies.

I certify that the preceding one hundred and eighty-six (186) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate

Date:  11 July 2007