Ricketts and Crowe

[2017] FCCA 718

FEDERAL CIRCUIT COURT OF AUSTRALIA

RICKETTS & CROWE [2017] FCCA 718

Catchwords:
FAMILY LAW – Child aged six years – child has Aboriginal background – child placed by mother with non-biologically related carer when an infant – proceedings commenced by carer involving mother and maternal grandmother – matter proceeded to final hearing – final hearing involved family report and the independent representation of child – court placed child in care of maternal grandmother – final order significantly influenced by child’s Aboriginality and desirability of child growing up within family of biological origin notwithstanding difficulty of removing child from long standing carer – orders not subject to appeal – carer seeks further orders on basis maternal grandmother is neglecting child and subjecting him to abuse – allegations of abuse strenuously denied – time spending arrangements completely broken down – grandmother seeks dismissal of former carer’s application on the basis of rule in Rice & Asplund – change of circumstances – matters to be considered – best interests.

Legislation:

Family Law Act 1975, s.60CC(3)(h)

Cases cited:
N & S and the Separate Representative (1996) FLC 92-655
Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16
CDJ v VAJ (1998) FLC 92-828
In the Marriage of McEnearney (1980) FLC 90-866
Bennett & Bennett (1991) FLC 92-191
King & Finneran (2001) FLC 93-079
Walter & Walter [2016] FamCAFC 56
Marsden & Winch (2009) 42 Fam LR 1

Applicant: MS RICKETTS

Respondent: MS CROWE

File Number: ADC 3042 of 2013

Judgment of: Judge Brown

Hearing date: 4 April 2017

Date of Last Submission: 4 April 2017

Delivered at: Adelaide

Delivered on: 13 April 2017

REPRESENTATION

Counsel for the Applicant: Ms Heeley

Solicitors for the Applicant: Far West Community Legal Centre

Counsel for the Respondent: Ms Brown

Solicitors for the Respondent: Osborne Legal

ORDERS

1. Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be re-appointed to represent the interests of the child X born (omitted) 2012 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Steve O’Connor at the Legal Aid Commission of New South Wales within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

2. Immediately upon re-appointment by the said Legal Aid Commission of New South Wales or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

3. Ms Ricketts file and serve an application setting out all interim and final orders she is seeking by no later than close of business on 12 May 2017.

4. Ms Crowe is to file and serve a Response and Affidavit in support to that application by no later than close of business on 26 May 2017.

5. Further consideration of this matter is adjourned for an interim hearing in respect of all allegation and time spending issues in Broken Hill on 8 June 2017 at 10:00am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3042 of 2013

MS RICKETTS

Applicant

And

MS CROWE

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern care arrangements for a six year old Aboriginal child.  He is X born (omitted) 2012.  The case started in August of 2013, when X was about fifteen months old.  Since that time, the various individuals concerned in the case have filed between them somewhere in excess of 100 documents. 

2. As will become clear, it is a case of great complexity and significant emotional potency.  The case has, however, proceeded to a trial in which the parties’ respective cases were each thoroughly canvassed, following which a decision has been made.  This decision has not been subject to appeal.  Accordingly, its authority is not subject to challenge. 

3. At this stage, the preliminary issue for the court is whether since the decision was handed down, there have arisen new issues of such significance that it is justified to reopen the painful controversy created by the case possibly to the detriment of X. 

4. On 24 September 2015, following a four day trial held in Broken Hill, Judge Kelly ordered that, as from 8 January 2016, X should live with his maternal grandmother, Ms Crowe, who was also to be solely responsible for making parental decisions in respect of X.  Ms Crowe lives in (omitted).

5. The other party in the September 2015 trial was Ms Ricketts.  She currently lives in (omitted), although previously she lived in (omitted).  Approximately 200km lie between (omitted) and (omitted), which are both in far western New South Wales.

6. Ms Ricketts is forty-six years old.  She designates herself as X’s aunt and describes herself as an Aboriginal woman of the (omitted) nation.  X’s mother is Ms S.  His father is Mr B. 

7. Neither Ms Ricketts nor Mr B has played any significant part of the proceedings.  Essentially, the proceedings have been between Ms Crowe and Ms S.  In addition, because of the inherent complexity of the situation, X has been independently represented in the case.

8. The mother, Ms S has three other children besides X.  They are A born (omitted) 2007; B born (omitted) 2011 and C born (omitted) 2008.  Mr B is the father of A and B.  Mr C is C’s father.  He has not taken any part in these proceedings.

9. Accordingly, A and B are full siblings to X, whilst C is a half-sibling.  Ms Ricketts seeks orders only in respect of X.  A, C and B remain subject to an order that they live with the maternal grandmother.  Judge Kelly made the order on 24 September 2015 confirming this arrangement concurrently with her order which was directed towards X transitioning into his grandmother’s care so that he would live in the same household as his siblings. 

10. Shortly before X was born, Ms S approached Ms Ricketts in (omitted) and indicated to her that she (Ms S) felt overwhelmed at the prospect of caring for her soon to be born child given she was not coping well with B, who was in her care at the time.  As a consequence, on 4 July 2012, Ms S executed a statutory declaration which purported to place X in the full guardianship of Ms Ricketts. 

11. In her first affidavit, Ms Ricketts describes herself and her relationship, with X, in the following terms:

    “I am the carer and part of the Aboriginal family of X … I am part of the extended Aboriginal family (“mob”) of X’s mother … we are related through the (omitted) side of our family … I have been X’s primary carer since X was approximately six weeks of age.”[1]

    [1]  See Ms Ricketts’ affidavit filed 19 August 2013 at paragraphs 2-4

12. Ms S responded to Ms Ricketts’ application in June of 2014, almost a year after the case had begun.  In the meantime, the court had made an order for X to live with Ms Ricketts on an undefended basis.  It subsequently became apparent that Ms S had herself been incarcerated as a consequence of being convicted of assaulting a police officer.

13. When Ms S responded to Ms Ricketts’ application, it was her position that X was not related to Ms Ricketts either “biologically or through the Aboriginal kinship system”.[2]  Ms S did however concede that she placed X in Ms Ricketts’ care, shortly after he was born, because she was going “through a difficult period” at the time.  In her response, Ms S sought the gradual return of X to her care over a period of approximately six months.

    [2]  See affidavit of Ms S filed 12 June 2014

14. Mr B was in prison when Ms S placed X in Ms Ricketts’ care.  He was serving a lengthy sentence arising from family violence charges relating to Ms S.  It was Ms Ricketts’ position that X was at significant risk of coming to harm if placed in Ms S’s care because of the violent nature of the relationship between his parents and their significant substance abuse issues.

15. Ms Crowe became involved in the case in August of 2014, when she sought to be joined as a party.  She deposed that she had had the care of C since the time of his birth and of A, since he was 10½ months old.  She also indicated that B had come into her care when Ms S was imprisoned.  Accordingly, in mid-2014, it was Ms Crowe’s case that she was caring for three of X’s siblings.  

16. In her application, Ms Crowe sought an order that would see X living with her and she having sole parental responsibility for him.  Underpinning her position was the assumption that the four siblings should live in the same household because of their shared background. 

17. In her affidavit, Ms Crowe deposed that, since her release from prison, Ms S had not been able to overcome her alcohol problem and had been violent towards her.  As a consequence, she asserted that Ms S was not in position to care for any of her children, including X.

18. In her affidavit, Ms Crowe also identified herself as a (omitted) woman.  She indicated that she had lived in (omitted) for all of her life and had very strong family ties in the district.  She confirmed that she had been aware that Ms S had placed X with Ms Ricketts because she was having trouble coping both with him and B.

19. However, at the time of this placement, she asserted that Ms Ricketts was in a relationship with Mr C, who was her (Ms Crowe’s) nephew and therefore a blood relative of hers and X’s. 

20. The relationship between Ms Ricketts and Mr C ended in difficult circumstances in July of 2013.  This seems to be one of the factors leading to Ms Ricketts moving from (omitted) to (omitted), which she did in early 2014, taking X with her.

21. Ms Crowe deposed as follows, in respect of her concerns that X was not where he should be:

    “Mr C is my nephew.  So Ms S was placing X with family.  However, Mr C and Ms Ricketts had broken up and now Ms Ricketts is living with another man who’s no relative to us.  I am very worried about X not growing up with family.  Ms Ricketts is no blood relative of his.  Family is very important to Aboriginal people and X should be with family.”[3]

    [3]  See Ms Crowe’s affidavit filed 7 August 2014 at paragraph 17 - 18

22. It is apparent from the various affidavits filed by both Ms Ricketts and Ms Crowe that the two do not have an easy relationship with one another.  Both have significant criticisms of the other’s domestic arrangements, particularly in terms of being subjected to family violence from their former respective partners.  In addition, from Ms Crowe’s perspective, the incident of X moving to (omitted) made it very difficult for X to maintain relationships with his kith and kin in (omitted). 

23. This extremely difficult situation led to the appointment of an independent children’s lawyer and the order of a family report, which was compiled by Mr S, a psychologist with extensive experience in Indigenous parenting practices.  Mr S’s report was released in April of 2015, some five months before the trial before Judge Kelly.

24. Prior to the trial, X continued to live with Ms Ricketts in (omitted).  In addition orders were made for him to spend regular defined periods of time with his maternal grandmother and siblings in (omitted).  The logistical issues arising from the distance between (omitted) and (omitted) seem to have been perennial throughout the case.

25. Mr S summarised Ms Ricketts’ background and necessarily her relationship to X in the following terms:

    “Ms Ricketts identifies as an Aboriginal woman of the (omitted) nation. She reported that her family comes from around the (omitted) region and that both her parents were members of the stolen generation who were removed from their family soon after birth. She reported that as a result of this she knows little of her Aboriginal background and culture. As a result of this connection to the (omitted) people Ms Ricketts describes herself as “a distant relative” of the (omitted) family and as having a connection to X by way of kinship.”[4]

    [4]  See Family Report dated 21 April 2015 at paragraph 17

26. In interview, Mr S described Ms Ricketts as being deeply offended by any questioning of her Aboriginal identity.  She did, however, concede that she could only be considered to be “very distantly related to” Ms Crowe and so to X.

27. Mr S was able to travel to New South Wales to complete his report and so observe X with both Ms Ricketts and Ms Crowe, Ms S and his siblings, which he did in April of 2015.  Mr S described X in positive terms as a happy and confident child, who was developing appropriately. 

28. Significantly, he was observed to interact with Ms Ricketts in a confident and warm manner.  This led Mr S to the conclusion that X had a secure attachment to Ms Ricketts.  This was hardly surprising given that it is undisputed that she has been his primary provider of care since shortly after his birth.

29. Mr S also observed X to be comfortable with his maternal grandmother, mother and siblings.  He noted, however, that there was ample reason for concern about Ms S’s parenting capacity.  In this context, to Mr S, Ms S described the then prevailing situation of X living with Ms Ricketts as being “just wrong”.

30. On any view, a very complex situation confronted Judge Kelly, when the parties’ competing applications came on for final hearing.  The major issues for the court’s determination centering on the following matters:

    ·X had a secure attachment to Ms Ricketts, developed over the first three years of his life.  As such, the implications of removing him from his carer would need to be carefully considered;

    ·However, if X continued to live in (omitted) with Ms Ricketts, his on-going relationship with his biological family particularly his grandmother, mother and siblings, based in (omitted), was likely to be problematic, given not only logistical considerations but also the longstanding animosity between Ms Crowe and her family, on the one hand and Ms Ricketts, on the other;

    ·Given that X is to be regarded as an Aboriginal child, what was the best means of ensuring that his right to enjoy his cultural background was supported, particularly in the context of enjoying that culture with others who shared it with him.[5]

    [5]  See Family Law Act 1975 at section 60CC(3)(h)

31. In general terms, the tension in the case which confronted Judge Kelly and which required her resolution, arose as a consequence of two largely irreconcilable considerations, which can be summarised as follows:

    ·X’s primary carer was a person who was a biological stranger to him, but to remove him from this arrangement would necessarily be traumatic not only for X, but also for Ms Ricketts;

    ·In an Aboriginal context, it was likely to be the case that X was currently being cared for by a person who was culturally inappropriate to provide such care.  In addition, this arrangement was almost certainly going to result in the child being separated from appropriate cultural role models, particularly in the form of his immediate biological relatives and, as such, was likely to have significant implications for X’s long term development and sense of cultural identity.

32. There can be no doubting the magnitude and complexity of the decision, which confronted Judge Kelly and which she was required to make.  Overlaying this complexity was the fact that each party had made significant criticisms of the parenting capacity of the other and the quality of the home environment each was able to provide to X.  In addition, necessarily, Judge Kelly’s adjudication required her to confront sensitive issues relating to cultural issues and affiliation.

33. Mr S opined, as follows, in respect of the issue of X’s right to enjoy the Aboriginal culture to which he belonged:

    “X's connection to his Aboriginal culture is likely to be strengthened through greater exposure to his maternal family. Although Ms Ricketts identifies, and is recognised by others, as Aboriginal her ability to directly support and promote X's acquisition of cultural knowledge and identity is perhaps less than that of the maternal family given Ms Ricketts’ own family history and her sense of disconnection from her own culture. The maternal family is able to provide X with direct knowledge of his culture and family based upon cultural knowledge, traditions and customs passed down within the maternal family.”[6]

    [6] See Family Report (ibid) at paragraph 76 (ix)

34. Overlaying this complex central issue – the balancing of X’s current level of stability with the potential for problems of identity to arise for him later because he was not placed appropriately in a cultural and familial sense – were protective concerns, which can be summarised as follows:

    ·Ms Ricketts had recently been convicted in respect of animal cruelty charges;

    ·Ms S’s capacity to parent was likely to remain problematic due to alcohol issues and a propensity to violence.  As such her involvement with X would be a difficult and stressful management issue for Ms Crowe;

    ·Ms Crowe lived a stressful life involving caring for many children.  As such, she was at risk herself of problem drinking and gambling;

    ·Both Ms Ricketts and Ms Crowe had previously been involved with violent partners.

35. Mr S felt unable to provide a clear and unqualified recommendation to the court in respect of the future placement of X, due to the complexity of the matter.  However, he militated in favour of the child being placed in the care of his maternal grandmother, provided the evidence available to the court did not reveal any child protective concerns in respect of Ms Crowe.  In making this recommendation, he was strongly influenced by the desirability of X growing up within a family congruent with his own cultural background and which included his siblings.

The first decision of Judge Kelly

1. Judge Kelly found that Ms Crowe’s household had been the venue for a great deal of family conflict and violence, since at least 1999.  In particular, Ms Crowe had been the victim of serious family violence from her former partner and had herself behaved violently, particularly after having consumed alcohol.  In this context, Judge Kelly observed that she could not “ignore the ongoing risk that X and his brothers could be exposed to ongoing alcohol abuse and family violence in the maternal grandmother’s home.” 

2. Judge Kelly also noted that Ms Ricketts had been the victim of serious family violence from a number of her former partners.  She noted however that Ms Ricketts did not drink, although each of her previous partners had done so.  Accordingly, Judge Kelly found that each of the parties had been the victim of significant family violence in the past.

3. In this context, Judge Kelly accepted that it was a significant risk factor for X to be exposed to violent male role models.  The danger being that this might lead to X himself becoming a violent person on reaching maturity, particularly in how he interacted with women.  However, given Ms Crowe had ceased her relationship with her former husband, Judge Kelly considered that the risk of family violence in the maternal grandmother’s home was, at the date of judgment, “dramatically reduced”. 

4. In her judgment, Judge Kelly concluded as follows:

   “This is not simply a matter of weighing up the risk to X in being exposed to family violence in either household, or the importance for X in maintaining his links to culture.  At the end of the day, there are risk factors for X in either household.  X has also been exposed to family violence in Ms Ricketts’ care through her relationships with Mr C and Mr L.  Whether she is living in a de facto relationship with Mr L or not, they continue to have a close friendship and are still very involved in each other’s lives. 

   Mr S focused on the sibling relationship between X and his three brothers.  The Independent Children's Lawyer agreed that this was a very important factor.  If X remains in Ms Ricketts’ care then he remains a relative outsider within his sibling group as he grows up.  This may convey a very negative message to X.  He may wonder why he is the only brother living apart.  He may wonder why he is different, why he is not good enough.  This has the potential to undermine his self-esteem and his sense of belonging. This is a compelling factor in my decision. 

   The maternal family owe a great debt to Ms Ricketts.  She provided a stable and secure home base for X while he was young and vulnerable and when the maternal grandmother was unable to take on the care of another child.  But it is now time to look at the bigger picture for X as he is growing up.  

   After much deliberation I conclude that X should move to live with his maternal grandmother in the not too distant future.  Moving to the maternal grandmother’s care will give X back his place within the family, growing up with his three brothers, who are all so close in age to him.  Combined with that is the opportunity for X to grow up with a greater immersion in his culture and to acquire this knowledge and learning at the right time, in the right place and from the right people within his family and within the (omitted) community. 

   There are risks with this outcome, but I accept the maternal grandmother’s evidence that the future risk of family violence is much less and that her use of alcohol has minimal impact on her parenting capacity.  There are risks for X if he remains with Ms Ricketts as well.  I again refer to Mr S’s evidence and his report in terms of the impact that the dislocation from culture can have on a child’s self-esteem, particularly an Aboriginal child’s self-esteem. This in turn can have implications for the child’s emotional and psychological welfare as they grow up.”[7]

   [7]  See Ricketts & Crowe [2015] FCCA 3629 at paragraphs 98-102

1. Her Honour’s orders envisaged X living with Ms Crowe, as well as with A, C and B.  Ms Crowe was conferred with sole parental responsibility for X.  It was further ordered that X should spend time with Ms Ricketts each third weekend from Friday lunchtime until Sunday afternoon, as well as for regular periods in school holidays.  Ms Ricketts was to collect X from Ms Crowe at the (omitted) post office with Ms Ricketts to return him to Ms Crowe at the (omitted) bus stop.

The 2016 proceedings

1. The matter returned to court in July of 2016, on Ms Crowe’s application.  She alleged that Ms Ricketts had failed to return X to her care in July of 2016.  On this basis, she sought a recovery order in respect of X. 

2. Ms Ricketts responded by deposing that she had declined to return X because of serious concerns relating to his welfare.  She indicated a background of Ms Crowe not complying with orders in respect of X’s time with her and of Ms Crowe referring to her in extremely derogatory terms. 

3. It was her evidence that X had been exposed to family violence in (omitted), which violence had involved the maternal grandmother.  Ms Ricketts was further concerned that Ms Crowe was drinking to excess and inflicting extreme corporal punishment on X and his siblings.  Ms Ricketts also alleged that Ms Crowe had re-formed a relationship, with Mr D, her previous husband and he was a dangerous and antisocial person.

4. Essentially, Ms Ricketts asserted that X was at risk of coming to serious physical and psychological harm if he returned to (omitted) and the maternal grandmother’s care.  In addition, Ms Ricketts alleged that Ms Crowe was intent on destroying X’s relationship with her, which was contrary both to X’s best interests and the earlier determination of the court. 

5. It was also her position that X himself had indicated a preference to remain in (omitted) and a fear of returning to (omitted).  In support of her case that X had been assaulted whilst in the care of his maternal grandmother, Ms Ricketts provided photographs, which she asserted demonstrated scaring and bruising on the child. 

6. Ms Crowe denied that she had assaulted X or subjected him to any abuse or neglect.  In this context, she relied on a report from Dr M, dated 28 July 2016, which indicated that X was regularly seen at the (omitted) Health Clinic and was observed to be a happy and healthy child who was well cared for by his grandmother.  No signs of abuse or neglect had been found.

7. These issues were determined by Judge Kelly, in Broken Hill, on 18 August 2016.  Her Honour was not assisted by any independent children’s lawyer, as the appointment had been discharged on 16 November 2015.   I understand that oral evidence was taken from the parties.

8. It would also appear to be the case that documents had been subpoenaed, by the parties, from New South Wales Police and from the Department of Family & Community Services (NSW).  I have not been provided with any of the documents so subpoenaed.

9. On 18 August 2016, Judge Kelly made the following orders:

   “1.    Ms Ricketts deliver up the child X born (omitted) 2012 to the maternal grandmother Ms Crowe at 12.00noon on Friday 19 August 2016 with handover to take place in front of the (omitted) Police Station.

   2.     X’s weekend time in the care of Ms Ricketts resume on the weekend commencing Friday 16 September 2016.

   3.     The Application in a Case filed 13 July 2016 is dismissed as finalised.”

10. I have not been provided with a transcript of the reasons of Judge Kelly, in support of these orders or any other written reasons for judgment.  I note however, it is the submission of Ms Heeley, counsel for Ms Ricketts that Judge Kelly spoke sternly to Ms Crowe and reminded her of her obligations, under the orders, to facilitate time between X and Ms Ricketts.

The current proceedings

1. On 28 December 2016, Ms Ricketts filed an application in a case.  This does not seem to me to be an appropriate mechanism for what is effectively a fresh application for further final orders in respect of X.  In my view, the proceedings should have been commenced with a fresh application, given there were then no proceedings on foot. 

2. Be that as it may, in this application, Ms Ricketts seeks the following orders:

   ·An order for the delivery up of X to Ms Ricketts and failing such delivery, the issue of a recovery order;

   ·An order that X live with her in (omitted) and she have sole parental responsibility for him;

   ·In procedural terms, Ms Ricketts seeks the commission of a family report.

3. In her affidavit in support, Ms Ricketts reiterated the matters alleged in support of her position in the August of 2016 proceedings, particularly her observations of scaring and bruising on X’s face, which she believed had been inflicted by Ms Crowe, with a thong.  Necessarily, the orders sought have both an interim and final aspect.  This confirms my view that it was not appropriate to file an application in a case.  Necessarily, the use of this mechanism tends to encourage the view that family law proceedings never conclude, which is far from being the case.

4. In addition, Ms Ricketts deposed that X had disclosed to her that he had been spending time with Ms Crowe’s former partner, Mr D, in breach of one of the final orders of September 2015, which restrained Ms Crowe from bringing any of the children concerned into contact with him.  In this context, Ms Ricketts placed significant emphasis on Judge Kelly’s finding that Mr D had previously been found guilty of child sex abuse and had been placed on the sex offenders register. 

5. Significantly, Ms Ricketts also deposed that she had not spent time with X, since the child’s return to Ms Crowe, pursuant to the order of 18 August 2016.  In this context, she had instructed her solicitor to write to Ms Crowe’s solicitor seeking explanation and make-up time but had received no response.  Her solicitor wrote in the following terms:

   “We must say that we are astonished that Ms Crowe has breached the current orders in such flagrant fashion, despite her undertakings to the court, and the admonitions of Judge Kelly.”

6. In addition, Ms Ricketts deposed that she had been told by many people in (omitted) that Ms Crowe was drinking to excess and was therefore not in a position to care for any of the children placed in her care, including X.  Apart from the photographs of X’s alleged injuries, there was no other independent forensic evidence, in the form of a medical report or a disclosure to a police officer or welfare worker that X had been assaulted.

7. In addition to her own affidavit material, Ms Ricketts relies on the affidavits of a number of others.  These include X’s father, Mr B; Ms R, an Aboriginal woman who lives in (omitted); Ms J, also a resident of (omitted) and also Aboriginal; and Ms C, X’s paternal aunt. 

8. Mr B confirms that he is still in custody, but due for release in September of this year.  He deposes that Ms Ricketts had previously brought X into visit him, when he was in prison.  He believes that she is more capable of facilitating a relationship between X and him than is the maternal grandmother.  As such, he is supportive of Ms Ricketts’ application.  In this context, it is necessary to point out that Mr B has had limited engagement with X and did not take part in the proceedings before Judge Kelly.

9. Ms R deposes that she has been living at a unit in the women’s safe house in (omitted).  She deposes that X, C, A and B have been living at the safe house with their aunt, rather than their grandmother.  Ms R further refutes any suggestion that Ms Crowe and Mr D have not been in the company with one another since the orders of September 2015.  She asserts that she saw the two together on Harmony Day in April of 2016.  Presumably, this incident pre-dates the decision of Judge Kelly in July of 2015. 

10. Ms J deposes that she has frequently seen Ms Crowe severely intoxicated.  She also believes that Mr D has been associating with the children.  In this regard, she has seen a photograph of them with the children at the football together.  She further asserts that Ms S and Ms Crowe have had a serious physical altercation with one another. 

11. Mr B supports her brother and indicates her wish that X should return to live with Ms Ricketts because she is a very good woman … and would be a good mum for X.  She also believes that Ms Ricketts would bring X to see Mr B, and the rest of our family.  More recently, Ms Ricketts has deposed that she has been told that C has gone to live in (omitted) with his Uncle Mr B and A is going to school in (omitted).  On this basis, it is her contention that one of the central factors influencing Judge Kelly’s determination, namely the reunification of X with his siblings, no longer has any currency. 

12. Ms Crowe responded to the application in a case on 20 March 2017.  She seeks the dismissal of the application.  It is her position that Ms Ricketts has not advanced any reliable evidence to justify a change in X’s living arrangements.  She further denied that she had directed any emotional or physical abuse towards X or any of his siblings.  In support of this submission, she pointed to the fact that she had had no involvement with police, community services or the education authorities since X came into her care. 

13. Ms Crowe denied that X and his siblings had been living at the (omitted) safe house with her daughter.  Rather, she asserted that they had taken shelter there during the heat of summer when her air conditioner had broken down.  Accordingly, she disputed Ms J’s evidence.

14. Ms Crowe denied that she was currently in the grip of any alcohol addiction.  In support of this assertion, she relied on a report from her general medical practitioner, who had undertaken a liver function test, which was normal.  It is her case that Ms Ricketts is unable to accept the September 2015 judgment of Judge Kelly and wishes to re-agitate the various matters which Her Honour determined.

15. Ms Crowe also provided a copy of X’s end of year pre-school report for 2016, which was positive regarding X’s progress and emotional wellbeing.  Ms Crowe’s position, in support of her application that Ms Ricketts’ application be dismissed, was summarised by her, in the following terms:

    “X is a very healthy and happy boy that deserves stability.  I absolutely adore X along with his brothers.  It is important for X to remain with his biological Aboriginal family as we are very close and it would not be any of their best interests if X was removed.”[8]

    [8]  See affidavit of Ms Crowe filed 20 March 2017

16. In addition and of some significance, contrary to Ms Ricketts’ evidence, it is Ms Crowe’s position that, when X was returned to her care, in August of 2016, he had an unexplained bruise on his face.  As far as I know, this allegation has, as with those of Ms Ricketts, not been subjected to any significant independent investigation.  Necessarily Ms Crowe suggests that this injury occurred whilst X was in Ms Ricketts’ care and therefore her retention of the child was justified.

17. Again, as with Ms Ricketts’ allegation that X has been assaulted with a thong by his maternal grandmother, this allegation of abuse has not been subject to any independent investigation.  Rather each party has made further allegations against the other, which was the pattern of the first round of proceedings.  It is also readily apparent to me that, if anything, the degree of mistrust and dislike between the parties has intensified rather than diminished. 

The applicable legal principles

1. During the proceedings determined by Judge Kelly, each of the parties made significant allegations that the other’s care of X represented a significant and unacceptable degree of risk for X.  These matters were investigated by Judge Kelly and findings made in respect of them.  Essentially, Judge Kelly determined that no aspect of Ms Crowe’s care of X was likely to represent a degree of risk to X’s welfare that was unacceptable for the court to take.

2. However, the central feature of Judge Kelly’s judgment is her finding that X’s best interests would be served, if he was raised in an environment based on his biological family, particularly given its Indigenous component.  I accept that Ms Ricketts is unlikely to ever accept the validity of this finding. 

3. However, the fact remains that the judgment itself was not subject to appeal.  Accordingly, in my view, the currency of this central finding remains in force.  As such, I should not easily look behind it or substitute my own judgment in regards to it, for that of Judge Kelly, who heard all the relevant evidence concerned.  In summary, Judge Kelly determined that X’s circumstances dictated that he should be raised within his Indigenous family, rather than by a well-meaning carer.

4. The issue remaining therefore is whether the concerns raised by Ms Ricketts justify the reopening of the entirety of the proceedings, including those which turn on issues relating to X's Aboriginality.  In this context, it is to be noted that X has been in the ostensible care of his maternal grandmother for a period in excess of a year. 

5. Accordingly, a reversion to Ms Ricketts’ care would represent a very significant change of circumstances for X, whose life to date cannot be characterised as having been stable.  In addition, the fresh application arises in circumstances where Ms Crowe vociferously refutes Ms Ricketts’ claim of Aboriginality.  These are difficult and necessarily sensitive issues.

6. The allegations raised, by both parties, since late 2016 are extremely serious in nature, and if true, must have implications for X’s welfare.  However, at this stage, none of these allegations has been subject to any exhaustive or independent scrutiny.  They remain allegations arising in bitterly contested and polarising proceedings, before the court, albeit after an earlier final hearing, which included a detailed family report. 

7. In these circumstances, the court is placed in an invidious position, being well aware of the possible serious and adverse consequences, for X, if it makes a wrong call in respect of the material before it.  On the one hand, the central issue in the case was determined by Judge Kelly.  Supported by Mr S, she considered that X’s long term best interests would be served if he returned to the care of his extended Aboriginal family, based in (omitted), rather than remaining in the care of a person who was biologically a stranger to him. 

8. On the other hand, if what Ms Ricketts asserts is true – that is Ms Crowe’s life is out of control because of alcohol abuse and this has led her to physically assault X and expose him to potentially dangerous individuals – it is horrifying to contemplate X remaining in the care of such a compromised carer. 

9. It is equally upsetting to contemplate these bitterly contested proceedings being reopened on the basis of spurious allegations, which may ultimately prove to result from some form of misunderstanding or mistake, as to what has befallen X, both in (omitted) and (omitted), which has not been able to be resolved because of the longstanding communication difficulties between the parties and the deep seated animosity between them.  It also conceivably possible that the case arises because of the malice the parties feel for one another.

10. As Fogarty J said in N&S and the Separate Representative a case dealing with allegations of sexual abuse:

    “…courts must be aware that not all allegations of sexual abuse are true.  False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings.  Ambiguous events often have an innocent explanation.”[9]

    [9]  See Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W (supra) at [95]

11. In this context, the proceedings create a dilemma for the court, which is impossible to resolve satisfactorily at this interim stage because the evidence available to the court is necessarily untested and limited in nature.  Allegations of abuse can usually only be satisfactorily resolved at the final hearing stage.

12. In addition, although this case raises significant issues to do with the protection of X from harm, the reality is that the state based authorities, charged with the statutory responsibility for determining whether X is a child in need of the state’s protection, are not likely to take any steps to investigate any of the notifications made to them.  This is notwithstanding the fact that notices of risk, filed on behalf of each of the parties, have been provided to the department concerned, which has also been invited to intervene in these proceedings – an invitation which has been unanswered. 

13. Notwithstanding the evidentiary difficulties arising at the interim stage, the court must still nonetheless make a decision and put in place the orders, which it considers will best regulate the situation, so far as X is concerned, according to the relevant principles contained in the Family Law Act 1975.

14. In this context, it is clear that the court is required to consider child protection issues in its decision making processes, and should not defer its responsibility in this regard because of deficiencies in the evidence before it or, more importantly, because it is not in a position to resolve definitively controversies arising between the parties, including in respect of potential child abuse issues. 

15. In Deiter & Deiter[10] the Full Court said as follows:

    “The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”

    [10]  See Deiter & Deiter [2011] FamCAFC 82 at [61]

16. In SS v AH[11] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:

    “Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

    [11]  See SS v AH [2010] FamCAFC 13 at [100]

17. In Eaby & Speelman[12] the Full Court endorsed this approach as enabling “the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.”  In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution, at the interim stage.  This is the position in the matter currently before the court.

    [12]  See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]

18. I will return to these evidentiary issues, in due course, after outlining the principles which apply to an application to dismiss further proceedings after a family court case has been finalised at an earlier stage.  This is Ms Crowe’s position.

19. In all matters concerning parenting orders, the best interests of the child concerned is the paramount consideration.  As the circumstances of the parties change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances. 

1. However, some degree of change is a necessary corollary of life and should not of itself allow parenting orders to be easily revisited.  Otherwise to allow further applications, on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation. 

2. For that reason, a court will not readily re-open a case concerning parenting orders recently made.  There needs to have been a substantial change in circumstances before a court will do so.  This is the basis of the rule in Rice & Asplund. [13]

   [13]  See Rice & Asplund (1979) FLC 90-725

3. The primary purpose of the rule is to prevent “endless litigation”[14] and is based on three main pillars.  Firstly, finality of litigation avoids expense to the public occasioned by “subsequent hearings and the imposition of them on court time”[15].

   [14]  See Rice & Asplund (supra) per Evatt CJ at 78,905

   [15]  See SPS & PLS [2008] FamCAFC 16 at paragraph 56

4. Secondly, the imposition of the rule avoids the potential “evil” of one judicial officer substituting his or her “opinion of what is in the best interests of a child” for that of another judicial officer on the basis of the same factual circumstances.[16] 

   [16] Ibid at paragraph 58

5. Human nature being what it is, it is inevitable that some litigants will want their cases reheard in the hope that a different adjudicator will reach different conclusions about the evidence led.  The rule negates this potential outcome.

6. Thirdly and most importantly, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements.  Litigation is not helpful to children. 

7. It is desirable that arrangements for their care be stable and so final.  For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[17]

   [17]  See CDJ v VAJ (1998) FLC 92-828 at 85,449

8. Judge Kelly was well aware of the controversy surrounding her decision in September of 2015.  She categorised the case as being finely balanced and difficult turning, as it did, on concerns relating to X’s then emotional security as balanced against longer term issues relating to how he would perceive his Aboriginal identity in the future.  In my view, it is not likely to be desirable for this difficult issue, which was not subject to appeal, to be re-litigated.

9. In addition, given that the decision was made and has been implemented, so far as X is concerned, it is not likely to be helpful to him that it be dramatically re-visited, once again, particularly on the basis of uncertain or imprecise allegations. 

10. In this context, it has been said that the court should not condone a “perennial football match between parents, who … seek to canvass again and again the question of custody of a child …”[18]  As I say, it seems unlikely that Ms Ricketts will ever accept the validity of Judge Kelly’s decision regarding the benefit of X being cared for in his family of biological and ethnic origin.  This, however, is not sufficient justification to allow the matter to be re-litigated once again.

    [18]  See In the Marriage of McEnearney (1980) FLC 90-866 at 75,499 approved in SPS & PLS (supra) per Warnick J at paragraph 57

11. It is clear from authority that a court, such as this one, has a discretion to determine whether there has been a sufficient change of circumstances, to justify the reopening of the parenting issues in respect of a child, which have earlier been determined, as either a discrete or preliminary issue, or after a full and exhaustive hearing of all the available evidence.[19]

    [19]  See Bennett & Bennett (1991) FLC 92-191 at 78,262

12. However, as Warnick J pointed out in SPS, it may defeat the essential utility of the rule if it is applied after a final hearing has occurred rather than at a preliminary stage.  If the rule is enjoined after all the evidence has been canvassed, there will be no saving of public resources and no protection afforded to the children concerned from the potentially deleterious consequences of litigation.[20] 

    [20]  See SPS & PLS (supra) at paragraph 59-60

13. Given that the court will often be called upon to apply the principal expressed in Rice & Asplund at a preliminary stage, without any full exploration of the parties’ concerned evidence, care must be taken with its application at such a stage.  It is not a rule which is to be applied formulaically.  Rather, the court must examine the evidence available and determine whether, at its highest and without determining its veracity, such evidence demonstrates a sufficient change of circumstance to justify the court embarking upon a full and exhaustive hearing. 

14. Warnick J put it as follows:

    “…when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing.  Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”[21]

    [21] Ibid at paragraph 81

15. It will frequently be the case that there is much controversy between the parties concerned as to whether there has been a change of circumstances of such moment as to justify the court re-opening proceedings.  This issue must be determined within the matrix of Part VII of the Family Law Act 1975.  The question essentially being whether it is likely to be in the children’s best interests to allow further litigation.  In making this assessment, the court must hold in the balance the potentially adverse consequences to the children concerned of allowing them to be the subject of further litigation. 

16. In arriving at its decision, the court must look to the following matters:

    ·the importance or seriousness of the issues raised, both individually and where necessary collectively;

    ·the impact that the issues are likely to have on the best interests of the children concerned;

    ·whether the issues raised relate to change alone or new issues, which render it necessary to revisit the earlier decision.

17. The test is a strong one.  The change or fresh circumstances must be of such significance that, once the court has become aware of it, it is left in “no doubt” that it is necessary to re-litigate the parenting issue in dispute between the parties. 

18. That is not to say, upon becoming aware of the change of circumstances, the court reaches the conclusion that there must inevitably be a change in orders previously made.  That would be putting the test too strongly.  Rather, the change of circumstances must be such that there is a “real likelihood” of a change. [22] 

    [22]  See King & Finneran (2001) FLC 93-079 at 88,367

19. In SPS it was said that the “essential question” for the court to pose itself concerned the “sufficiency” of the new events, which were said to precipitate the need for a new inquiry.  In answering this question, Warnick J indicated it was necessary to put the events into the context of the broader circumstances pertaining to arrangements for that child and measure the significance of those events against the significance of the steps, which might follow from them.[23]

    [23] Ibid at paragraph 84

20. In all these circumstances, I accept that what I must consider, at this stage, is whether the interests of X not being the subject of further litigation is a more powerful consideration, so far as his welfare is concerned, than to allow Ms Ricketts’ application to continue.  This issue primarily turns on whether Ms Ricketts has demonstrated a sufficient change of circumstances to justify her application going forward. 

21. The difficulty with this is that the change of circumstances, on which she relies, is very similar to concerns which she has previously raised.  In addition, she is not currently in a position in my view, to provide strongly probative evidence in support of her various assertions, which are vigorously refuted by Ms Crowe.  However, as previously indicated, this is the common staple of many interim applications coming before the court, which raise significant welfare concerns in respect of the child concerned.

22. In Walter & Walter[24] the court in its discussion of this issue noted with approval the reasons of the Full Court in Marsden & Winch:[25]

    “Nevertheless, there are significant changes that occur which do require a court to reconsider decisions previously made.  Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made?  The court must look at:

    (1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.

    (2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

    (3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself.  Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.”

    [24]  See Walter & Walter [2016] FamCAFC 56

    [25]  See Marsden & Winch (2009) 42 Fam LR 1

23. Further, May, Ainslie-Wallace & Murphy JJ went on to say:

    “Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.”[26]

    [26] Ibid at 51

Conclusions

1. The significant change, on which Ms Ricketts relies to re-open the proceedings, has two main aspects.  Firstly, the allegations of abuse being occasioned to X, as a consequence of Ms Crowe’s resumption of drinking.  Secondly, the total failure of Ms Crowe to provide X to her as envisaged by the orders of September 2015.  Do these circumstances justify the re-opening of every aspect pertaining to X’s care?

2. In respect of the second factor, there is no doubt that X has not spent any time with Ms Ricketts for a significant period of time.  This is not in keeping with Judge Kelly’s determination as to how his interests would be best served, particularly given that it was uncontroversial that Ms Ricketts had been a significant feature of X’s life and development from its earliest stages.

3. In my view, this factor alone justifies the re-opening of the proceedings and precludes against their dismissal at this stage.  Notwithstanding any potential criticisms of Ms Ricketts for the form in which she has chosen to re-commence the proceedings, the court is duty bound to investigate whether it is objectively reasonable (and therefore excusable) for Ms Crowe to have withheld X from Ms Ricketts.

4. At the interim stage, in applying the rule in Rice & Asplund, the court must accept the evidence of the proponent for fresh proceedings at its highest, notwithstanding any reservations which may arise relating to the emotional dynamic of the parties concerned particularly long-standing issues of hostility between them and any prior history of allegations of abuse or neglect which have previously found to be unsubstantiated.

5. In this context, the allegations of abuse made by both parties, must be subject to further investigation and cannot be subject to what is tantamount to a summary dismissal if Ms Crowe’s position is accepted.  In my view, it would not be in X’s best interest for these matters not to be investigated, particularly given Judge Kelly’s finding that both households concerned represented some degree of risk for X.

6. In this context, the court must still examine the overall utility arising from the proceedings being re-instituted in their totality.  This is the most troubling aspect of the case and stands at its core.  Judge Kelly determined that X’s interests would be best served if he lived with his maternal family who share his ethnicity.

7. She reached this conclusion because of provisions within the Family Law Act 1975, which direct the court to consider the right of an Aboriginal child to enjoy his/her culture with those who share it with him/her.  In the present situation, the maternal grandmother is a classic exemplar of such a person so far as X is concerned.  Given the moment of this decision, it is difficult to assess the likelihood that the final order of September 2015 will be changed, particularly given that it was not subject to appeal notwithstanding its obvious and abiding controversy for Ms Ricketts.

8. Ms Heeley submits that there is evidence that two of X’s siblings are no longer living with Ms Crowe.  This may be so.  But, in my view, such a submission grossly over simplifies the complexity arising in the case.  It is Ms Crowe’s position (and indeed that of Ms S) that, if X returns to Ms Ricketts’ primary care, he will be an Aboriginal child who is fundamentally in the wrong place and this will be damaging for his long term sense of identity and development as he grows to maturity.

9. If the allegations of abuse raised by Ms Ricketts are ultimately found to be lacking in substance, in my view, it will be difficult for her to establish there has been any significant change of circumstances, so far as X and his care arrangements are concerned. The situation previously confronting Judge Kelly will essentially be identical to that which is presented to the subsequent court (other than, obviously, X would have been in the care of his maternal grandmother for a significant period of time) and it would not be justifiable for that court to substitute its judgment for that of the initial trial judge, vis-à-vis the considerations arising from section 60CC(3)(h).

10. This is the most troubling aspect of the case.  Judge Kelly determined the issue – rightly so far as Ms Crowe was concerned; wrongly so far as Ms Ricketts was concerned.  If this was the only issue sought to be raised by Ms Ricketts, it would, in my view, be unjustifiable to re-litigate this sole issue and it would be appropriate to dismiss the application by means of the mechanism provided by the rule in Rice & Asplund.  This is particularly so given the potential deleterious emotional consequence for X of him being subject to still more litigation turning on an issue relating to his ethnicity. 

11. In such a scenario – the dismissal of the case – the only remaining issue for the court would be one of the enforcement of the time spending regime ordered by Judge Kelly and whether there was any reasonably objective circumstances justifying X being withheld from Ms Ricketts and vice versa.  This issue clearly remains extant and therefore, in my view, requires the further attention of the court.

12. The gist of Ms Crowe’s case is that Ms Ricketts does not and is not likely ever to accept the rationale of Judge Kelly’s judgment.  Therefore she will attempt to chip away at it, through whatever mechanisms are available to her, including the making of spurious allegations of abuse.

13. On the other hand, it is Ms Ricketts’ case that Ms Crowe pulled the wool over Judge Kelly’s eyes and she remains, as she always has been, a compromised carer for X because of the various endemic difficulties in her household.  Therefore, regardless of the fact that it may not be optimal for X to be parented by a biological stranger, it is likely to be the best outcome for him.

14. For all manner of reasons, the court eschews continual proceedings in respect of children.  Litigation is expensive in both financial and emotional terms and does little to encourage a tempered and cooperative parenting relationship between the parties concerned.  In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation and therefore abrupt change. 

15. What happens next in the proceedings will depend on the outcome of the court’s findings in respect of the allegations of abuse.  Both parties need to bear in mind that the principle encapsulated under the rubric of Rice & Asplund can be applied at any stage of the proceedings.  It is fundamentally an exemplar of the paramountcy principle.  In a case like the present one, the court may be called upon to consider, at various stages of the proceedings, whether it is in X’s best interests to allow the proceedings to continue.

16. At this stage, it is not appropriate to apply the rule.  The court is duty bound to investigate the abuse allegations and determine if it is appropriate for the time spending regime to be recommenced and, if so, how is the best means to ensure that it occurs seamlessly and without conflict.  What happens after this process has been completed is necessarily unclear.

17. For these reasons, I propose to re-engage the Independent Children’s Lawyer, in the case, for X and direct that Ms Ricketts file an application in which she specifies both the final and interim orders she seeks.  Thereafter, Ms Crowe is directed to file a response.  I will fix any competing applications for interim hearing, which will be directed towards the allegation and time spending issues in the next circuit of the court to Broken Hill, by which time I hope the Independent Children’s Lawyer will have been appointed.

18. At this juncture, it is premature to order a further family report.  Regrettably I can see no utility in the application of any process of family dispute resolution.

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

I certify that the preceding one hundred and twenty eight (128) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:       13 April 2017