Rhodda and Rolfe and Anor

[2015] FCCA 1689

FEDERAL CIRCUIT COURT OF AUSTRALIA

RHODDA & ROLFE & ANOR [2015] FCCA 1689

Catchwords:
FAMILY LAW – Interim arrangements for child aged five years of age – maternal great aunt seeks to spend time with the child – high conflict – child has an Indigenous background – matters to be considered – supervised time – nature of interim hearing – need for family report – best interests.

Legislation:

Family Law Act 1975, ss.11E; 11F; 60CA; 60B; 60CC; 64B; 65C

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Bright v Bright (1995) FLC 92-570

Applicant: MS RHODDA

First Respondent: MS ROLFE

Second Respondent: MR BOYCE

File Number: DNC 598 of 2014

Judgment of: Judge Brown

Hearing date: 16 June 2015

Date of Last Submission: 16 June 2015

Delivered at: Adelaide

Delivered on: 19 June 2015

REPRESENTATION

Counsel for the Applicant: Mr Bond

Solicitors for the Applicant: Northern Territory Legal Aid Commission

Counsel for the First Respondent: Mr Story

Solicitors for the First Respondent: Story & Associates

ORDERS

Until further or other order:

1. The child X born (omitted) 2010 (herein after referred to as “the child”) live with the mother.

2. The mother and great aunt enrol and complete all necessary induction procedures to ascertain their suitability to take part in the supervised contact program offered by CatholicCare Children’s Contact Service no later than 26 June 2015.

3. Subject to satisfaction of order one hereof the great aunt spend time with the child on such occasions as the Director of CatholicCare Children’s Contact Service or his/her nominee can accommodate the parties subject to the following conditions:

   (a)There be no more than one (1) session per week, which is not to exceed two (2) hours in duration;

   (b)Each period is to be subject to the supervision of Director of the centre or his/her nominee;

   (c)The visits are to be at the expense of the great aunt; and

   (d)After the conclusion of six (6) visits the maternal great aunt is to obtain a report from the Director of the centre regarding the child’s reaction to the visits.

4. The parties are restrained from, and an injunction is granted restraining the parties from:

   (a)Using physical discipline against the child;

   (b)Denigrating each other or any member of their family or persons of significance within the hearing or presence of the child;

   (c)Consuming illicit substances or alcohol to excess whilst the child is in their respective care or allowing other persons to consume illicit substances or alcohol to excess in the presence of the child; and

   (d)Smoking in the presence of the child or allowing other persons to smoke in the presence of the child.

5. A copy of the orders made herein, together with the relevant court documents, be personally served upon the father.

6. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit 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 21 August 2015.

7. The family assessment to deal with the following matters:

   (a)to include interviews with the parties, the child and relevant family members;

   (b)observed interaction between the child and the parties;

   (c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   (d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

   (e)any other matters that the family assessor considers important to the welfare or best interests of the said child.

8. 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 Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

9. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

10. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference

NOTING:

A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

1. Further consideration of the matter be adjourned to 28 August 2015 at 9.30 am in Darwin.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

DNC 598 of 2014

MS RHODDA

Applicant

And

MS ROLFE

First Respondent

MR BOYCE

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment relate to care arrangements for a young child, X born (omitted) 2010, particularly the time he should spend with his maternal great aunt. 

2. X is a child who has an Aboriginal background.  He lives with his mother, Ms Rolfe, in (omitted), a suburb of Darwin.

3. X’s father is Mr Boyce.  Mr Boyce also lives in suburban Darwin, but chooses not to interact with X.  It is the mother’s case that Mr Boyce has significant issues to do with substance and alcohol abuse.

4. The applicant in these proceedings is Ms Rhodda.  She is X’s maternal great aunt.  She too lives in (omitted) and, in her affidavit, describes herself as X’s grandmother in “Aboriginal culture”.

5. Ms Rhodda commenced these proceedings on 11 December 2014.  She wishes the court to make orders, which would enable her to spend time with X, initially at a Children’s Contact Centre in Darwin and thereafter, once a week, during the day.  In this respect, she proposes each Sunday from 9.00am to 5.00pm.

6. She acknowledges that she has not seen X for a significant period of time and her relationship with Ms Rolfe is not a good one.  In these circumstances, she concedes that she must proceed slowly in reinstating her relationship with X.

7. For several reasons, the proceedings have not had a smooth progress and it is only recently (4 June 2015) that the mother has responded to the Application.  It is her case that X will not benefit, in any way whatsoever, from spending time with his great aunt, whom she asserts he barely knows.  She wishes that the Application be dismissed.

8. In these reasons for judgment, for the sake of convenience and because the parties share a common surname, I will refer to the applicant, Ms Rhodda, as “the aunt” and to Ms Rolfe, as “the mother”.

Background

1. In many ways this is a sad and perplexing case.  It is always sad when blood relatives fall out.  The aunt was born in Darwin on (omitted) 1971.  However, she lived in Sydney for nearly 20 years, where she studied (course omitted) and had employment. 

2. The mother was born in Darwin on (omitted) 1993.  Sadly, her mother – the aunt’s sister and X’s maternal grandmother – passed away in (omitted) 2011.  

3. The aunt returned to Darwin for the funeral, where she met X, who was aged about 1 year of age at the time.  She also resumed her relationship with the mother, whom she had not seen for some years.

4. At this stage, the aunt decided to abandon her life in Sydney and return to Darwin.  Ordinarily, one would expect the mother and aunt, linked by ties of blood, to enjoy a close relationship.  The parties disagree about many things, but sadly it is abundantly clear that there is no love lost whatsoever between them and that this poor and mistrustful relationship is unlikely to be improved any time soon.

5. It has not always been so.  The aunt and X spent some time with the aunt, while she was packing up her home in Sydney.  Thereafter, the three shared accommodation, in Darwin, at least for a few weeks, although they disagree about precisely how long.

6. The parties also have very different views as to what happened during this period.  The aunt asserts that she was responsible for all household duties, including looking after X.  She describes the mother as being neglectful of X and more interested in pursuing her social life. 

7. The aunt describes the situation, in her affidavit, in the following terms:

   “… At this time my relationship with X was becoming closer, as he was spending most of his time with me, not Ms Rolfe.  I suspect that Ms Rolfe began to get jealous that X and I were becoming closer …  Her aggression towards me increased … 5 months after … I decided to move out, because I was sick of living with her abusing me all the time.”[1]

   [1]     See aunt’s affidavit filed 11 December 2014 at paragraph 10.

8. The mother has a very different view.  In her recently filed affidavit, she asserts her view that there is “something wrong” with the aunt.  By necessary implication, the mother asserts that the aunt became obsessed with X and this caused her to overstep the mark as to what was a reasonable role for a great aunt to take in the life and care of a child of X’s age.  The mother denies that the aunt did the majority of housework or looked after X. 

9. In addition, the mother categorically refutes any suggestion that she unduly socialised or consumed alcohol to excess, during this period and effectively used the aunt as a babysitter.  It is her position that she took X to all his immunisations, check-ups, and has always been the major carer in his life.

10. The mother provides the following account, in respect of when she and the aunt shared accommodation together, with X:

    “… When Ms Rhodda moved in with X and I … she became too much for me to handle.  She would eat all the food that I would buy for me and X.  She would ask me for money nearly every day for smokes and petrol. … Sometimes it actually got physical because I said no to her for taking X.”[2]

    [2]     See mother’s affidavit filed 4 June 2015 at paragraph 15.

11. It is common ground that the mother sought a domestic violence order, against the aunt, in September of 2013.  The Northern Territory Police were not involved with this application, which was instigated privately by the mother. 

12. The matter ultimately came before the Court of Summary Jurisdiction, in Darwin, on 15 October 2013.  It was resolved by the aunt undertaking to the Court that, for a period of 12 months, she would not contact or approach the mother or harass, threaten or verbally abuse her.  This undertaking was made without any admission as to liability on her part.

13. The aunt asserts that she agreed to providing the undertaking because her lawyer advised her that it would be preferable to her being subject to a formal domestic order, which might have implications for her employment.  However, it is her case that there was no proper basis for the making of the order.

14. To the contrary, the aunt asserts that after she and the mother stopped living together, she would see X on a daily basis.  It is her case that she was very much a safety net for X, because the mother was frequently drinking during much of 2013.  She portrays herself as having an active and positive role in X’s life, taking him swimming and to the park regularly.

15. The aunt concedes that there was an incident between the parties, in September 2015, prior to the making of the domestic violence order.  She asserts that the mother asked her to come over to look after X, so that she could go out drinking.  There was some disagreement as to where the aunt would take X.

16. Ultimately the aunt says the mother changed her mind about going out and decided to stay home.  Therefore the aunt was not required in respect of X’s care.  In this context, the aunt asserts she said to the mother words to the effect of, “ok, but clean up your place otherwise welfare will come”.  It is the aunt’s case that this comment caused the mother to lose her temper, where upon she picked up an extension cord, which she used to whip the aunt on the back of her head.

17. The mother’s position is that it is the aunt, who has been violent towards her, as well as bad mouthing her in her family and the wider Aboriginal community in Darwin.  She asserts that she felt powerless to prevent the aunt coming around to home, day after day, to harass about X.  She felt fearful that the aunt was trying to take X away from her.

18. The aunt concedes that she has made notifications to the Department of Children and Families about the mother’s treatment of X.  These include notifications of alleged physical abuse of X and the exposure of the child to uses of alcohol and marijuana.  The mother refutes the factual bases of these notifications.

19. This is an interim hearing.  As such I am not in a position to resolve the very many factual issues, which the case throws up.  However, in my estimation, the case is likely to be categorised by powerful emotional currents on both sides.

20. The mother believes, rightly or wrongly, that the aunt has an agenda to replace her as X’s principle provider of care and will do so by whatever means are at her disposal, including making allegations that she is an unfit or compromised parent.  In these circumstances, she can see nothing positive, either for herself or X, of being involved with the aunt.

21. The aunt portrays herself as a loving relative of X, who is important to him because of the passing of his maternal grandmother.  As such, she asserts that she has a useful role to play in X’s life, particularly as his mother has, on her case, had issues arising from being a sole parent.

22. Accordingly, each party mistrusts the motives of the other.  X is at the centre of these strong emotional currents, to which he has not contributed in any way.  It is his interests, which are paramount, not those of his mother or great aunt.

23. As this background demonstrates, the respective positions of the parties are polarised in the extreme.  However, it is common ground between the parties that X has not interacted with the aunt since September/October 2013, a period approaching two years or about 40% of X’s life to date.

24. Besides X, the mother has one other child.  She is Y born (omitted) 2014.  Y’s father is Mr C.  Y lives with her mother and spends time, with her father, regularly.  It is the mother’s case that she, X and Y are a happy and well settled family unit, which the aunt is trying to disrupt.

25. The proceedings have generated a great deal of heat.  At this early stage of proceedings, I do not have any thorough inquiry into how X’s interests can best be served in the form of a comprehensive family report.  I am going to order that such a report be prepared.

26. Prior to the advent of that report, I must determine what time, if any, X should spend with the aunt.  She contends that time at a children’s contact centre, subject to professional supervision, will be completely safe and secure for X and will also provide the court with some insight into what sort of relationship the two have and how capably she can manage X’s needs.

27. The mother’s position is that it would be premature for the court to permit any time to occur between X and the aunt until such time as the family report is to hand.  This is because, on her case, the relationship between the parties is so volatile and difficult and, as such, it is difficult for the court to ascertain what benefits X is likely to derive from interacting, on a limited basis, with a relative, whom she asserts, he hardly knows.

28. It is the aunt’s case that she experienced extreme difficulty in serving her application on the mother.  On her case, this followed a process of the mother being unwilling to engage in family mediation with her.  Ultimately, on 19 March 2015, Judge Coates made a Commonwealth Information order, requirement Centrelink to provide information as to the whereabouts of X to the Court.

29. This information was provided and the mother was able to be served.  However this process took some time.  The irony of the case being that, as events have ultimately unfolded, both mother and aunt are living in reasonable proximity, to one another, in Darwin.

30. The case came on before me, whilst I was on circuit to Darwin, on 18 May 2015.  The mother had not filed any answering material and strenuously resisted any orders being made for X to spend time with the aunt. 

31. In these circumstances, and due to the fact that there is currently no resident judge in Darwin, I elected to adjourn the proceedings until 16 June 2015 and deal with them by telephone on that date.  The mother was given until 1 June to file her answering material.

32. In the meantime, I elected to refer the parties to a family consultant pursuant to the provisions of s.11F of the Family Law Act 1975 (Cth). Pursuant to 11E the Court may request advice, from a family consultant, as to the needs of any family coming before it.

33. On 10 June 2015, I received a memorandum from Family Consultant Ms G, who had met with both the aunt and the mother the previous day.  Ms G reported that she had not been able to assist the parties to reach any agreement in respect of X.  In her memorandum, Ms G tactfully summarised the parties history with one another as follows:

    “Ms Rhodda [sic] and Ms Rolfe agreed in 2012 when they commenced having regular contact that their relationship was positive.  It appeared from mid to late 2012 their relationship soured which culminated in Ms Rolfe applying for a DVO protecting X and her and as a result Ms Rhodda [sic] making an undertaking in October 2013 not to contact them for 12 months.  Parties made allegations and counter-allegations of jealously erupting between them, controlling behaviour and bad mouthing by one another.”

34. Ms G reported that the aunt impressed as having a very negative attitude towards the mother, repeatedly referring to her as toxic.  In contrast, Ms G regarded the mother as being more reflective in regards to her animosity towards the aunt.  The mother apparently stating to Ms G that she thought her anger towards the aunt needed to subside before the child spent any time with her.

35. To Ms G, the mother denied any maltreatment of X.  She acknowledged that her relationship with Mr Boyce had been marked by family violence and she also admitted that she had left X, in the care of his father, in the past, when he (Mr Boyce) had been under the influence of alcohol and marijuana. 

36. In this context, the mother asserted that she had ceased to consume alcohol since the start of 2015.  She denied ever having consumed illicit drugs.  No concerns were raised about the aunt’s use of alcohol or illicit drugs.  Although, in the mother’s affidavit material, she is critical of the fact that the aunt uses cigarettes and allegedly has exposed X, in the past, to their smoke.

37. Ms G made no recommendations as to the immediate conduct of the matter other than that a family assessment might assist.  She recommended that the mother was likely to benefit from undertaking a parenting course.

1. Of some significance, on the submission of Mr Story, counsel for the mother, Ms G was of the view that the mother was currently able to provide X with adequate care and protection and was capable of making decisions which are in X’s best interest regarding the family members with whom he spends time.

2. Mr Bond, counsel for the aunt, points to the fact that Ms G conceded that her involvement with the family was limited.  Obviously, this is the case.  However, it is Mr Story’s submission that Ms G has tacitly indicated the view that the Court should respect the mother’s current decision in respect of X spending time with his aunt.

The legal considerations applicable

1. The various factual issues in dispute between the parties cannot be resolved in the context of these interim proceedings, which take place in an abbreviated form.  At this stage, neither party has been cross-examined by the lawyer for the other.  As such, the Court, at this stage, cannot resolve the serious and worrying controversies arising in the case. 

2. Notwithstanding these evidentiary difficulties, the Court must still make a decision and put in place the orders, which it thinks will best regulate the situation, so far as X is concerned.  In this context, the parties need to bear in the mind that the orders, which the Court makes at this stage, are provisional in nature and will stand only until the Court makes other interim orders or finalises the matter, after hearing all relevant evidence, including in the form of a family report or the parties themselves otherwise agree on a satisfactory arrangement for X.  This is not the final hearing of the case. 

3. The same legal principles apply at both the interim and the final hearing stage.  The difference being that interim hearings do not determine long term arrangements for children.  That is the function of final hearings. 

4. In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].

5. Underpinning much of the mother’s case is the tacit assumption that she, as X’s parent, is in a superior position to the aunt, who has a more distant sanguineous relationship to him.  In addition, in a case such as this one, involving an Indigenous child, there may be other complex issues regarding familial relationships and the extended parenting of children, which have not, as yet, been thoroughly explored.

6. The Family Law Act 1975 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. 

7. 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)].

8. 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. 

9. 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 applicant has legislative authority to seek the orders, which she does. 

10. 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 section 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.”

11. 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).”

12. By necessary implication, it is the aunt’s case that she is a person significant to X’s care, welfare and development, as a consequence of her love for him and the relationship between the two, which is made more significant by the passing of X’s maternal grandmother.  In this context, she emphasises X’s entitlement to enjoy his shared culture with her.

13. Precisely what culture X, the aunt and his mother share and how the three can enjoy that culture together are not issues which the parties have delineated in their current affidavit material.  I anticipate that these are issues which will be examined in any family assessment report undertaken.

14. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.

15. Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:

    (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

    (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 

16. Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another.  They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned. 

17. However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

18. Obviously, the aunt is not one of X’s parents.  Accordingly, the first primary consideration has no application to the present matter.  Both parties assert that the other has behaved violently towards X or behaved violently in his presence, so he has been exposed to family violence.

19. As is clear, one of the emphases in both the Family Law Act and the cases of each of the parties, is on protecting a child, who has been exposed to family violence or abuse in the past or who may be in the future. 

20. Fundamentally, this task requires the court to assess the risk to a child, in both physical and psychological terms, of interacting with a parent, who has behaved in a violent way previously.  As such, the task is both retrospective and prospective. 

21. It is also, very often, a difficult task to discharge at the interim stage, when evidence has frequently been quickly gathered and, as such, is often incomplete.  In addition, at the interim stage, there is a limited opportunity to test such evidence.

22. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. 

23. In this particular case, the following sub-sections of section 60CC(3) are likely to be relevant: (b) – nature of child’s relationship with other persons, including relatives; (e) – practical difficulties relating to contact; (f) – parental capacity; (g) – X’s level of maturity and background; (h) – Aboriginality; (k) – family violence orders.

24. 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.

25. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[3] 

    [3]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

26. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[4] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[5] 

    [4]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [5]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

27. The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.

Consideration

1. To Ms G, both the mother and the aunt acknowledged that there had been episodes of violence between them previously.  The extent of this violence is unclear to me but both parties agree that they have yelled at one another on the past.  The aunt asserts that it has been more physical than this on least one occasion.  At present, it is clear to me that there is no trust whatsoever between the mother and aunt and they have no capacity to consensually implement any arrangement in respect of X.

2. This is a central consideration in the case.  It is not likely to be helpful to X if he is exposed to the parties’ acrimonious relationship or if there is a resumption of any shouting match between them.  Whatever interaction there is, between the aunt and the mother in future, the court must ensure that it occurs in a safe and controlled environment, for X’s sake.

3. As a consequence of the Family Violence Order made in October 2013, the parties have not directly interacted with one another for some time.  It was Ms G’s impression that the aunt remains highly antagonistic towards the mother, whilst the mother’s anger towards the aunt, although still extreme, has the potential to subside.

4. The aunt’s position appears to be that she wishes to be significantly involved in X’s life because this will enable her to look out for him and ensure that he is properly parented.  She asserts that, in the past, there have been some significant deficits in the mother’s parenting of X.

5. Whether this is so or not is impossible for me to determine, at this stage.  However, Ms G, in her face to face interaction with the mother, was not concerned about the mother’s parental capacity and assessed her as being able to make responsible and appropriate decisions in respect of X.  It is significant that the mother denies any illicit drug use and confirms that she has not consumed alcohol since the start of 2015.

6. However, the manner in which the aunt has posited her case is likely to make the mother both highly defensive in respect of her parenting, and hostile to the aunt, who has been critical of her.  In such circumstances, it is readily explicable that the mother should be so opposed to the aunt spending time with X, particularly given that there has been involvement from the Department of Families and Children or at least notification from the aunt to the Department. 

7. It seems unlikely that this difficult and conflicted dynamic between the parties will resolve in the foreseeable future.  It is a major factor which militates against the court making any ambitious or experimental order, in respect of X spending time with his aunt.  In my view, the risk of X being exposed to some form of confrontation, between his mother and great aunt, is extreme.

8. Prior to September 2013, it seems more likely than not that X spent reasonably significant periods of time in the care of the aunt.  What memories he has of this time is uncertain.  It is now approaching two years since X can have last seen his great aunt, which is a very long time indeed for a five year old child.

9. In this context, it is difficult to assess the nature of any relationship, which X has with the aunt.  From the mother’s perspective, it is not likely to be helpful, in any emotional sense, for X to interact with a person, for brief periods of time, in an institutional setting, whom he does not know. 

10. I agree that X’s memories of the great aunt are likely to be remote but it is not impossible that he has some recollection of her and that this is a positive one for him.  This is an issue which will be examined in the family report, which I agree is essential to progress this matter.

11. In an objective sense, X will be completely safe, if he spends time with his great aunt, subject to the supervision of the children’s contact centre in Darwin.  In addition, such a centre will provide a facility for X to be exchanged between the parties, without the need for them to come into direct contact with each other, so avoiding X being exposed to their conflicted relationship.

12. One significant aspect of these proceedings (and indeed many proceedings concerning arrangements for children, particularly in conflicted circumstances) is that they have taken a significant period of time to come to this point and are likely to take even longer to be concluded. 

13. From the aunt’s perspective, considerations of time are crucial.  No doubt, she feels frustrated by the slow progress of her case thus far, which has required her to go to some lengths to have the mother engaged in the proceedings.  The memorandum of Ms G indicates that prospects of the parties reaching some consensual arrangement in respect of the aunt interacting with X are remote.

14. In these circumstances, the aunt contends that there is an urgent need for the court to put in place mechanisms which will, at the least, preserve whatever relationship exists between her and X.  In this sense, she contends that any potential drawbacks of supervised time, particularly uncertainty about where such a process will lead, are greatly outweighed by the likely benefits of preserving X’s relationship with her.

15. The aunt’s case is that she is a significant for X because she loves him and shares ties of blood with him.  Relatives, particularly grandparents, potentially have an important role in the lives of children.

16. They are a source of family history.  As such, besides love and approval, they can offer children a sense of where they fit in within a wider, extended family.  In this context, the comments of Treyvaud J in Bright v Bright,[6] seems to me to be relevant, although the case pre-dates the applicable legislation.  His Honour said as follows:

    “…it is very important for children’s proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child.  It is very important for a child to understand that he or she is a part a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.

    In deciding this dispute between the grandparents, on the one hand, and the parents, on the other hand, I am required by law to treat the welfare of the child E as the paramount consideration.  I have pointed out that as a matter of general principle children develop better when they recognise that they have a place not only in the home in which they live but in the wider family.”

    [6]  See Bright v Bright (1995) FLC 92-570 at page 81,658

17. Sadly, X has lost the opportunity to know his maternal grandmother.  He seems to have a limited relationship with his father, although this may change in time.  It may be the case that the aunt can fill a grandmotherly role for X.  Certainly, this seems to be the basis of her case.  However, I acknowledge that this issue is far from clear at the present time and highly controversial from the mother’s perspective, as she can see no good in her aunt whatsoever. 

18. As a consequence of her love for X, based on their shared relationship, the aunt is potentially very significant to X.  It seems to me to be improbable that the aunt has instituted these proceedings because she wishes to irate the mother or for some other ulterior motive.  Rather it would appear, more likely than not, that the aunt is motivated by her feeling of affection for X for embarking upon these difficult and stressful proceedings.

19. The aunt describes herself as being X’s grandmother in an Aboriginal sense.  The relevant literature speaks of the sense of identity Aboriginal children derive from being from being parented, in a collective manner, by extend family members, cutting across generations.  On this basis, the aunt contends that it is likely to be important, to X, that she plays a significant role in his future parenting.

20. In his submissions to the court, Mr Bond requested that earnest consideration be given to the family report being compiled by Mr R, who is an experience family consultant, practicing in Darwin, who has an extensive background of working with indigenous families.  Mr R has written widely on Indigenous parenting practices and compiled many family reports in respect of Indigenous families.

21. Who ultimately prepares the family report, in this matter, is a matter for the Director of Child Dispute Services.  However, I agree that considerations relating to family, culture and indigenous identity are central to this case.

22. In practicable terms, there should be no great difficulty in the parties enrolling at the Darwin Children’s Contact Service and travelling there in order to facilitate X spending time with the aunt, as both live in suburban Darwin.  In addition, the facilities at the contact service are child focussed and there will be activities in which X and the aunt can engage in together.

23. For reasons already delineated, what happens after this process has concluded is more problematic.  Necessarily supervised contact is a stop gap measure as it is rarely a permanent solution to the management of a child’s relationship with a significant person.  In addition this is not a case where there are allegations of serious abuse, which require rigorous supervision to provide a proper level of protection to the child concerned.

24. Rather supervision is likely to be useful to provide a safe and neutral location in which to re-introduce X to his aunt, against a background of significant adult conflict, which will avoid the parties concerned having to interact with one another.  In the short term, it will also provide an independent mechanism in which to gauge the level of relationship between X and his aunt, relatively quickly, in a safe and child focussed environment.

1. I have grave concerns that the parties themselves, at this stage or in the reasonably foreseeable future, will be able manage any handover independently.  It also may be the case that it is difficult or inappropriate to use some other public facility, such as a police station or a restaurant, to exchange X. However those are issues for a future time.

2. As indicated early, in my view, the process of X becoming reengaged with his aunt must be cautiously approached.  However, I have come to the view that it would not be appropriate to keep this process in abeyance for any extended period of time.  I agree with the aunt that a great deal of time has elapsed, since she last interacted with X and therefore there are likely to be risks, in terms of the durability of X’s relationship with her, if some steps are not taken urgently to support it.

3. In my view, after having considered these various factors closely, I have come to the conclusion they favour the court creating a regime whereby X interacts with his aunt in controlled and safe circumstances.  The main rationale of this decision is that the benefits, which X may derive from having a relationship with his aunt, are currently inchoate. 

4. Potentially, however, those benefits may be significant.  The aunt is an important relative on X’s maternal side.  As such, given the fluxion of time and the fact that it is more likely than not that, between late 2011 and mid-2013, the aunt was involved in X’s care, in my view, it behoves the court to put in place some measures to support this relationship, provided it can be done safely, sooner rather than later.

5. There remains the significant issue of family violence.  Family violence is endemic in all levels of Australian society, including amongst indigenous Australians.  The aunt was the subject of a family violence order. 

6. However, in exercising the court’s responsibility pursuant to section 60CC(3)(k), I note that the order was made without the court concerned making any findings of fact and the aunt deigning liability. In these circumstances, it seems unlikely that X will be exposed to any further episodes of family violence, if he interacts with his aunt at a children’s contact centre.

7. In my view, the most appropriate step through which to secure X’s best interests, in the short to medium term, is to inaugurate a process of supervised time between him and the great aunt, whilst at the same time commissioning a more detailed assessment of the dynamic of the family and X’s role and relationships in it, in the form of a family report, which is likely to be to hand in mid to late August of this year.

8. In my view, it would be premature to proceed to anything beyond such supervised time at this point because of the difficulties implicit in the case, particularly the extreme antagonism between the parties.  The family report is likely to take around fourteen weeks to complete.

9. I will make orders restraining each of the parties denigrating the other in the presence or hearing of the child or permitting any other person doing so.  This is to underline to the parties that the dispute between is their dispute not X’s, I will also make the orders sought regarding drug use, smoking and physical discipline. It is not practicable, at this point, for there to be an order for telephone communication.

10. At present there is no resident judge in Darwin.  Accordingly, it is difficult to fix the matter for final hearing.  I am also aware that there are likely to be many calls on the service of the Darwin based children’s contact centre.  I will list the matter for further directions on a date following the release of the family report.

11. I will make an interim order recognising the status quo that X live with his mother, but I do not propose to make an order in respect of parental responsibility until Mr Boyce has been served with the mother’s application and been given an opportunity to take part in the proceedings.

12. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgement.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:  19 June 2015