Ricketts and Crowe

FEDERAL CIRCUIT COURT OF AUSTRALIA

RICKETTS & CROWE

[2015] FCCA 3629

Catchwords:
FAMILY LAW – Child – neither parent able to care for child – child’s Aboriginal identity – separation of siblings – parenting capacity of proposed caregivers.

Legislation:

Family Law Act 1975, ss.4AA, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA.

Cases cited:
Verran & Hort & Verran [2009] FMCAfam 1
Donnell & Dovey (2010) FLC 93-428

Applicant:

MS RICKETTS

Respondent:

MS CROWE

File Number:

ADC 3042 of 2013

Judgment of:

Judge Kelly

Hearing date:

14-17 September 2015 in Broken Hill

Date of Last Submission:

24 September 2015

Delivered at:

Adelaide

Delivered on:

24 September 2015

REPRESENTATION

Counsel for the Applicant:

Ms A Horvat

Solicitors for the Applicant:

Far West Community

Counsel for the Respondent:

Ms R Dart

Solicitors for the Respondent:

Mark Whelan Lawyers

Counsel for the Independent Children's Lawyer:

Mr P Gutterres

Solicitors for the Independent Children's Lawyer:

Legal Aid New South Wales

ORDERS

Parenting orders regarding the children A, C and B

All previous parenting orders in relation to the children A born (omitted) 2007, C born (omitted) 2008 and B born (omitted) 2011 are discharged.
The children A, C and B live with the maternal grandmother who shall have sole parental responsibility for their care, welfare and development.
The children spend supervised time with their mother and their respective fathers at such times and upon such conditions as may be agreed between the maternal grandmother and each parent, including supervision, if considered necessary for the children’s safety and welfare.
The children spend time with the Applicant, Ms Ricketts at such times as may be agreed between the Applicant and the maternal grandmother.

Parenting orders regarding X born (omitted) 2012

That all previous parenting orders in relation to X are discharged as and from 8 January 2016 and thereafter the following parenting orders apply.
X live with his maternal grandmother Ms Crowe who shall have sole parental responsibility for his care, welfare and development.
The maternal grandmother consult with the applicant Ms Ricketts and seek her views in relation to major decisions regarding X’s health and education.
X spend time with the Applicant, Ms Ricketts as follows:
(a)on each third weekend from 11.30am Friday until 3.00pm Sunday commencing 22 January 2016;
(b)upon X commencing school on one weekend each month during school terms from 4.00pm Friday until 3.00pm Sunday, or such other times as may be agreed;
(c)on any weekend that Ms Ricketts may be present in (omitted), at times to be agreed between the parties.
(d)commencing in 2016 for one half of each of the April, July and September school holidays as agreed between the parties or in default of agreement for the first half of the school holidays from 11.30am on the first Saturday until 3.00pm on the Sunday one week following;
(e)commencing in 2016 for one half of the Christmas school holiday periods each year at times to be agreed between the parties or in default of agreement:
(i)for the second half of the Christmas school holidays in 2016 and each alternate year thereafter;
(ii)for the first of the Christmas school holidays in 2017 and each alternate year thereafter;
(iii)for the purpose of these orders the school holidays are deemed to commence at 9.00am on the first day after the school term concludes and to conclude on the last day before school resumes;
(iv)any handover during the Christmas school holidays shall occur at 3.00pm on the middle day of the school holiday period.
Pending X commencing school, handovers take place with the Applicant Ms Ricketts collecting X from the maternal grandmother at the (omitted) Post Office at the commencement of X’s time in her care and returning him to the maternal grandmother at the (omitted) bus stop at the conclusion of X’s time in her care.
Upon X commencing school, handovers take place as agreed between the parties subject to any further Order of the Court.
The maternal grandmother and the Applicant facilitate regular telephone communication between X and the other party on at least one (1) occasion each week and on specials occasions, including Christmas Day, X’s birthday and each party’s birthday.
X spend supervised time with his mother and father at times as may be agreed between the maternal grandmother and each parent.

Co-parenting communication

The maternal grandmother and the Applicant will:
(a)ensure that all communication between them in the presence of the children is polite and respectful;
(b)ensure that all communication between them in relation to the children is polite and respectful; and
(c)refrain from discussing any contentious parenting issues in the presence of the children.
The maternal grandmother shall ensure that the Applicant is kept informed of:
(a)any medical problems or illnesses that X may suffer whilst in her care;
(b)any medication or treatment that is prescribed for X;
(c)any social, school, sporting or religious functions which X is to attend;
(d)the maternal grandmother’s residential address; and
(e)details of any other people who may be living in that home with the maternal grandmother and the children.
The Applicant shall ensure that the maternal grandmother is kept informed of:
(a)any medical problems or illnesses that X may suffer whilst in her care;
(b)any medication or treatment that is prescribed for X;
(c)any social, school, sporting or religious functions which X is to attend;
(d)the Applicant’s residential address; and
(e)details of any other people who may be living in that home with the Applicant and the children.
Both parties are welcome to attend any social, school, sporting or religious functions to which parents are usually invited and to receive or obtain copies of X’s school reports and school photographs (at each party’s own expense).
Both party provide the other with their mobile telephone number provided that any such communication by mobile telephone is also conducted in a polite and respectful manner and that the telephone number is not released to any other person without the consent of the relevant party.

Injunctions

All parties, including the mother and each of the children’s fathers, are restrained from:
(a)allowing the children to have any unsupervised contact with Mr A or Mr C;
(b)consuming alcohol to excess in the presence of the children;
(c)abusing, criticising or denigrating the other parties in the presence of the children and from allowing or encouraging any other person to do so;
(d)allowing the children to be exposed to family violence, including verbal or physical abuse between any extended family members; and
(e)criticising the other parties or discussing any issues raised in these proceedings on Facebook or any other social media website.
The maternal grandmother is restrained from;
(a)being intoxicated in the presence of the children; and
(b)bringing the children into contact or allowing the children to reside with Mr D.
The matter is adjourned to 16 November 2015 at 10.00am in Broken Hill with respect to long term handover arrangements.

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 BROKEN HILL

ADC 3042 of 2013

MS RICKETTS

Applicant

And

MS CROWE

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally and I reserved the right to edit and correct these reasons, if required for publication. These published reasons have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to make the orally delivered reasons easy to read.

The proceedings relate to the care arrangements for four young boys: the mother’s three older children, A born (omitted) 2007, C born (omitted) 2008 and B born (omitted) 2011 and her youngest child X, born (omitted) 2012. A, C and B live with the maternal grandmother, Ms Crowe, in (omitted), and X lives with the applicant, Ms Ricketts, in (omitted).
There is no dispute between these parties in relation to the care arrangements for the older three boys, and I will be making parenting orders regarding those children. A and C have been living with their grandmother for some years, B came into her care more recently. I do not intend setting out detailed reasons in relation to the orders I now make regarding A, C and B, but my findings in relation to the maternal grandmother’s capacity to provide care for X apply equally to the three older boys.
The children’s biological parents are formally parties to the proceedings. The mother filed a Response and affidavit in 2014, but she has not taken any active role in litigation beyond that time. She lives in (omitted) near the maternal grandmother and spends time with all of the boys as negotiated with the maternal grandmother, including time with X when he is spending time with his maternal grandmother.
X’s father is presently in custody and has not participated in this Court process. Neither of the children’s parents have participated in these proceedings in any meaningful way, nor does it appear that they are able to assume parental responsibility for any of the children. I am satisfied that it is in the best interests of A, C and B that they live with their maternal grandmother and that she have sole parental responsibility for their care.
The proceedings in relation to X commenced with Ms Ricketts' Initiating Application filed on 19 August 2013, in which she sought to confirm her existing role as X’s primary caregiver. In August 2014, the maternal grandmother commenced proceedings in the Broken Hill Local Court seeking parenting orders regarding the three older boys, and those proceedings were then transferred to this Court. Ms Crowe then filed her Response seeking primary care of X as well as his three older brothers.
The parties remained locked in dispute regarding X’s parenting arrangements and their competing Applications proceeded to trial on 14 September 2015. A great deal of evidence was presented, but I remind the parties that the Court is not required to determine every factual issue in dispute between them. Rather, I will focus my discussion and make findings with respect to those matters that I consider are most relevant to X’s long-term best interests. In a general sense, statements of fact within these reasons should be considered as findings of fact.

Background

X and his three brothers are young Aboriginal boys. Their family are members of the (omitted) nation, the traditional custodians of the land around (omitted) and (omitted). Ms Crowe, the maternal grandmother, has a very strong connection to her lands, her tradition and her culture. The applicant, Ms Ricketts grew up separated from her culture and traditions. Her parents were members of the Stolen Generation, and she was unaware of her Aboriginal heritage until her adulthood. Ms Ricketts has since tried to locate and identify her Aboriginal family, and she believes that she has some distant but significant family connection with the maternal grandmother and X’s extended family. The maternal grandmother disputes that.
There is no doubt that X’s family background is complex but in many ways, in fact, largely uncontroversial. A very helpful genogram was provided by the applicant’s solicitors setting out the interconnected family relationships within which X and his brothers live. The three older boys are very fortunate to be living and growing up with their extended family on country, where they have immediate and direct connection with their culture and their land.
X came into Ms Ricketts’ care in June 2012, at the request of the mother and with the agreement of the maternal grandmother. Ms Crowe was already caring for A and C and was unable to take on the responsibility for an infant child at that time as well. At the time that X came into Ms Ricketts’ care, she was living in a long-term relationship with Mr C, and the maternal grandmother was in a long-term relationship with her partner of many years, Mr D.
Both Ms Ricketts and Ms Crowe were subjected to violence and abuse from their partners during these relationships. Both Mr C and Mr D have struggled with alcohol abuse across the years. The maternal grandmother has also abused alcohol in the past. There has been a substantial history of episodic violence, substance abuse and police attendances at the maternal grandmother’s home, and this history goes back many years now. To her credit, the maternal grandmother appears to have acknowledged and dealt with her own alcohol abuse. Her alcohol consumption appears to be better controlled and does not appear to be affecting her care of the older boys now. I will discuss these matters further in the reasons.
The impact of family violence within the maternal grandmother’s household is a major factor in the Court’s determinations. She experienced repeated abuse and assaults from Mr D across many years, including more recent years when A and C have been in her care. Ms Crowe is often recorded as victim in the police records, but the conflict and violence has involved the extended maternal family at times.
Ms Ricketts was living in (omitted) with Mr C when X was placed in her care. The maternal grandmother says that X was being placed in the care of Mr C and Ms Ricketts, rather than Ms Ricketts alone. This was seen to be an appropriate family placement because Mr C is the maternal grandmother’s nephew.
Mr C and Ms Ricketts no doubt shared responsibility for X’s care, especially when Ms Ricketts was working full time. However I am satisfied that Ms Ricketts assumed the primary parenting responsibility for young X. At the time that X came into Ms Ricketts’ care, she was the person named as his caregiver in the statutory declarations prepared by the mother. X’s medical records show that Ms Ricketts was responsible for his medical appointments.
I further note that the maternal grandmother had a discussion with a worker from the Department of Community Services in relation to X’s placement with Ms Ricketts, not with Mr C and Ms Ricketts. Most significantly, X remained in Ms Ricketts’ care when she separated from Mr C in July 2013, and she has continued to be his primary caregiver since then.
Ms Ricketts and Ms Crowe initially enjoyed a good relationship. Ms Ricketts gave evidence that she respected the maternal grandmother and felt supported by her. Both parties agreed that the maternal grandmother and other members of the maternal family would occasionally help out with babysitting X from time to time. Both parties were living in (omitted) so there was regular incidental contact between the households and between the children.
The applicant separated from Mr C in July 2013 as she needed to protect herself and X from his alcohol abuse and violence. She took out an apprehended violence order (AVO) against Mr C in August 2013.
Around this time the mother informed Ms Ricketts that X’s father was about to be released from custody and that he may try to remove X from Ms Ricketts’ care. This seems to have been the catalyst that prompted Ms Ricketts to file her Initiating Application on 19 August 2013. These factors taken together – the breakdown in Ms Ricketts’ relationship with Mr C, the risk of Mr B becoming involved, the Court proceedings – caused a great deal of strain between the parties. The mother, Ms S, was very angry that Ms Ricketts had filed Court proceedings and an unpleasant incident occurred between her, Ms Ricketts and Mr C in (omitted). There were ongoing problems between the applicant and Mr C, even after she had obtained an AVO against him.
In December 2013, Ms Ricketts started a new relationship with Mr M, also known as Mr M. Mr M is also a member of the maternal grandmother’s extended family, albeit the maternal grandmother gave evidence that she felt the need to “cut him from the family group” as she defines it at this point in time.
Ms Ricketts felt increasingly distressed living in (omitted). She felt threatened by the mother’s behaviour and says that her home was broken into. As a result she decided to move to (omitted) with X. She says that the maternal grandmother did not object to her moving with X at that point in time. The maternal grandmother disputed this, but it is not a major issue.
The maternal grandmother remained living in (omitted) and continued to provide primary care for A and C. She first indicated her interest in these proceedings in February 2014. Interim orders were made for X to spend time with her and his brothers on 18 June 2014 and she eventually filed her Response on 7 August 2014.
In the meantime, the child B came into the maternal grandmother’s care and she then obtained orders in the Local Court confirming her role as primary caregiver to A, C and B.
The relationship between the applicant and the maternal grandmother deteriorated significantly across late 2013 and early 2014. The maternal grandmother disputed Ms Ricketts' Aboriginal identity. In turn, Ms Ricketts says the maternal grandmother was stirring up trouble, and was encouraging Ms S, the child’s mother, to intimidate her and assault her. The maternal grandmother said that Ms Ricketts was not able to provide appropriate care for X and that there was ongoing violence in her home due to her relationship with Mr M. In turn the applicant alleged that X was not safe in the maternal grandmother’s care due to her alcohol abuse and the ongoing violence within and around her home environment. And so it went on; accusation and counter-accusation, allegation and counter-allegation.
The parties’ previously cordial relationship spiralled downwards and a total breakdown in trust and respect occurred. That has been the greatest tragedy for X in this process; to have the two people most concerned with his care and welfare – Ms Ricketts and Mr D – at each other’s throats in the way they have been.
If last week’s hearing has provided any positive outcome for X beyond these Orders, it has been the opportunity for Ms Ricketts and Ms Crowe to be in the same room together and to hear each other speak about X and his brothers. They have had the chance to acknowledge that they both love X and that they have both played a vital role in loving and caring for these four young boys.
To their credit, both parties acknowledged that they did have a good relationship in the past and significantly, they were both able to acknowledge and apologise for some of their past behaviour. They both conceded that their past threats and abuse, the public hostility they have exchanged, whether within the (omitted) community, on Facebook, or by reports to police or to DoCS, had continued to inflame the situation, to the detriment of X and his brothers.
I hope that both Ms Ricketts and Ms Crowe can hold on to the courtesy that they each showed during the trial. X needs them both in his life. He needs them to behave respectfully and appropriately towards each other so that they can each play a meaningful role supporting him as he grows up.

Relevant legal principles

Parenting disputes are governed by Part VII of the Family Law Act 1975. In accordance with s.65D, the Court is empowered to make such parenting order as it thinks proper. When making a parenting order the best interests of the children are the paramount consideration (section 60CA).
Section 60B of the Family Law Act 1975 sets out the objects and principles which govern the Court’s decision making responsibilities. This section focuses on the importance of parents having a meaningful involvement of their children’s lives and upon the need to protect children from harm. It also confirms that children have a right to enjoy their culture. Section 60B(3) clarifies that Aboriginal and Torres Strait Islander children have a right to maintain a connection with their culture and to be supported in exploring and developing a positive appreciation of their culture.

In determining what parenting orders will be in the children’s best interests, the Court must consider the factors set out in section 60CC. Section 60CC is divided into primary considerations and additional considerations. The two primary considerations are:
a)the benefit to the children of having a meaningful relationship with both of their parents; and
b)the need to protect the children from the physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the event these considerations are in conflict, s60CC(2)(b) prevails.[1] Section 60CC(3) then sets out a range of additional considerations which also must be taken into account. These include consideration of the child’s right to enjoy their Aboriginal heritage[2] and the impact of family violence.[3]
[1] See s.60CC(2A)
[2] See s.60CC(3)(h), s.60CC(6)
[3] See s.60CC(3)(j), (k), s.60CG
Relevant authorities have confirmed that a trial judge must exercise caution when dealing with a dispute involving parties who are not the children’s parents, as here. Where necessary, I incorporate s60CC(3)(m) within my discussion, but will nonetheless address the parties’ evidence and set out my findings within the structure provided by Part VII and s.60CC.
The importance of maintaining X’s connection to his Aboriginal culture and heritage is also a very important factor in this matter. This has been discussed in numerous judgments across the years by very experienced judges in the Family Court and in this Court. In the 2009 decision of Verran & Hort & Verran, my colleague Brown FM (as he then was) commented that:
“The legislation recognises that Aboriginal children have unique needs and particular difficulties as a result of the treatment of Indigenous people throughout the history of European occupation of Australia and up to the present time. This history is one of dispossession and discrimination.”
His Honour acknowledged that Australia remains a country where racism, particularly against Aboriginal people, remains prevalent and he went on to comment:
“The greatest protection often for an Aboriginal child from the corrosive effects of racism or prejudice is to be part of a community which has to deal with such discrimination regularly.
If an Aboriginal child has access to strong role models who share his or her racial make-up, this is likely to provide the greatest protection from exposure to racism, whether institutionalised or otherwise.”[5]
These themes are explored and expanded upon by Mr S in his report and oral evidence.
[5] Ibid @ para 258

The hearing

Both parties relied upon the Affidavits and witnesses referred to in their Case Outlines. The maternal grandmother sought to file a further Affidavit, but that was not received into evidence. Both parties’ solicitors also filed Affidavits annexing large amounts of subpoenaed material. The Court is always cautious to be receiving vast tracks of subpoenaed material, but the complexities in this matter warranted that material coming before the Court.
The parties and their witnesses were available for cross examination, aside from the paternal grandmother, Ms J. I accept that both parties generally endeavoured to give their evidence honestly and to the best of their ability. Ms Crowe was open and candid, even when this was to her disadvantage, such as her evidence regarding her alcohol consumption. Ms Ricketts was more cautious at times and may not have been entirely candid about the status of her relationship with Mr M but I consider she was generally a witness of truth.
As with so many family law litigants, both parties demonstrated a tendency to magnify the other party’s past failings and I take this into account when assessing their evidence. Each party’s supporting witnesses were loyal to their friend or family member and I take this into account when considering their evidence. Their evidence also demonstrated the extent to which this case seems to have divided the (omitted) community. This does not undermine their evidence completely, but it does limit the weight I place upon it. I note that the evidence from Ms Ricketts’ supporting witnesses confirms that she is indeed recognised within the Aboriginal community as an Aboriginal person.
The Independent Children’s Lawyer relied upon the family report prepared by the expert witness, Mr S. Mr S brings to the Court not only his expertise and experience as a clinical psychologist in analysing X’s family dynamics, he also brings his additional experience and understanding of Aboriginal culture and traditions. Mr S acknowledged that he does not speak for or claim experience in relation to the (omitted) people or their culture and traditions, but he brings greater insight into parenting disputes regarding Aboriginal children than many other experts.

Section 60CC – primary considerations

The Court had very little evidence regarding X’s relationship with his parents. Clearly the Court’s primary focus must be on the need to protect X from the physical or psychological harm that may follow from being subjected to abuse, neglect, or exposed to abuse, neglect or family violence in accordance with s.60CC(2)(b). This is a crucial factor of the Court to address.
Both parties acknowledge that their past history and lifestyle may have placed X at risk of exposure to abuse or family violence. Equally they both say that they have changed and are in better control of their lives now. Both parties claim they can better protect X now.
The Court will discuss this issue in more detail, but I make the following summary findings:
·The maternal grandmother’s household has been the venue for a great deal of family conflict and violence over a number of years now, and police records in that regard go back to 1999.
·The maternal grandmother was the victim of ongoing and serious family violence from her husband, Mr D, across many years.
·The maternal grandmother herself has also behaved violently on occasions, particularly when she has been drinking too much. The maternal grandmother had a significant problem with her alcohol use in the past. She acknowledged that she still drinks excessively once or twice a month, but is able to control her consumption of alcohol.
·I accept that the maternal grandmother does not allow alcohol to impact upon her care of A, C or B. Nonetheless, the Court cannot 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.
·Ms Ricketts has also been a victim of serious family violence from her former partners and this has also been a problem that goes back a number of years within her relationship with Mr C. It is concerning that she then found herself in a similar situation within her relationship with Mr M.
·Ms Ricketts does not drink alcohol, but acknowledged that her partners have drunk alcohol to excess and that this has occurred while X is in her care.
I will discuss various specific incidents and the concerns about parenting capacity further in these Reasons. Notwithstanding the concerns raised by the Independent Children's Lawyer regarding Ms Ricketts’ parenting capacity, I am generally satisfied that X is not at risk of neglect in either party’s care and that both Ms Ricketts and Ms Crowe will be able to provide for X’s day-to-day care and welfare.

Risk of exposure to family violence

Ms Ricketts has obtained a domestic violence order against Mr C and against Mr M. She has also been granted a domestic violence order against X’s mother, Ms S. The maternal grandmother has also taken out a domestic violence order against her former husband, Mr D and against her daughter Ms S. The Court must properly assess the risk that X may be exposed to ongoing family violence in either party’s care.
There is no doubt that both of these home environments must have been frightening for X or his brothers and unsafe for them as well. The Court must be concerned that exposure to this level of family violence has the effect of normalising family violence and physical violence. What are these home environments teaching X and his brothers?
It is vital that this generation of young Aboriginal boys grow up into proud, respectful Aboriginal men who have learnt to treat their family with respect and especially to treat the women in their lives with respect and courtesy, be they mothers, grandmothers, sisters or partners. I am quite sure that Ms Ricketts and Ms Crowe want X and his brothers to grow into young men who are able to control their temper, rather than react with a mouthful of abuse or with their fists. Young men who take pride in their Aboriginal culture, in their own achievements and their contribution to their community.
I am worried that X and his brothers are being denied that opportunity because of the level of violence in their lives, and that is a significant factor in relation to the maternal grandmother’s home. The records from the New South Wales Police indicate ongoing problems with violence in and about the maternal grandmother’s home. This is a significant concern for the Court and one that cannot be lightly dismissed.
I note, for example, the very serious assault upon the maternal grandmother by Mr D last year and a further assault this year. Nonetheless, the maternal grandmother gave very clear evidence that this relationship is now over. I accept her evidence on this topic, particularly in light of the fact that she has consented to an order that Mr D will not be allowed to see X or to live in the same house as him.
This goes a long way to reduce the risk of family violence within the maternal grandmother’s household, as many of the incidents across the past years involved reports of aggressive behaviour by Mr D towards her. This is not to ignore the other incidents that have occurred with other family members, or with Ms Crowe herself as the named instigator. Nonetheless, I consider that the risk of family violence being a feature in the maternal grandmother’s home is dramatically reduced now that she has ended her relationship with Mr D.
I note that the mother, Ms S, has also pleaded guilty to an assault on the maternal grandmother earlier this year. The maternal grandmother says that her daughter is more settled and that their relationship is more positive now. I am not sure I can be entirely confident about that yet. It is a matter that, perhaps, only time will tell.
Overall I was impressed by the maternal grandmother’s evidence on this topic. While the past history of violence is concerning, the changing family dynamic – separating from Mr D and a more settled relationship with her daughter – is reassuring. Both parties also consented to an order that they will ensure the children are not exposed to violence or aggressive behaviour while in their care, which is also important. However, I acknowledge that the extent to which either party is able to achieve this outcome remains untested.

Section 60CC Additional Considerations

Turning to the remaining s.60CC(3) considerations, Mr S did not interview X, given he is only three years old.
Regarding X’s relationship with Ms Ricketts and Ms Crowe, both parties agree that X enjoys a positive relationship with each of them. Ms Ricketts noted that he may be a little reluctant to leave her care on occasions, but agreed that X has a good relationship with Ms Crowe.
Mr S observed X’s interaction with both Ms Ricketts and Ms Crowe and confirmed that X interacted easily and comfortably with each party. He described X’s relationship with Ms Ricketts as confident and warm and noted that X appeared well cared for and enjoys a secure attachment with Ms Ricketts. Mr S observed X’s reluctance to leave Ms Ricketts’ care, but also noticed that X settled quickly, once in the maternal grandmother’s care. He went on to comment that X was affectionate towards his brothers, his grandmother and his Mummy Ms S and that he was able to seek and receive comfort from the maternal grandmother when he became upset.
Clearly X’s primary attachment is with Ms Ricketts, given that she has been his primary caregiver since birth. Equally, X has developed a secure, comfortable relationship with the maternal grandmother and enjoys his relationship with his three older brothers as well. It is important to note that the boys are all very close in age and therefore these relationships are likely to become substantially more important to X as he gets older.
Mr S commented that it could be detrimental to X’s social and emotional development if he spends his childhood separated from his brothers; if he is the odd one out who lives away from the sibling group. Even though X enjoys a secure attachment with Ms Ricketts, any child in his situation may eventually wonder why he is not living with his brothers; why he is the odd one out. X may wonder whether it is because he was “not wanted” or that he “was not good enough” in some way. I note Mr S’s concerns in this regard and it is a factor that I take into account.
Both parties support X’s ongoing relationship with his extended family. This is particularly important for a young Aboriginal child, because it is through these links that X will come to learn about his (omitted) culture. X is very fortunate that his extended family members have maintained strong links to their culture and traditions and can share this knowledge with him.
I am confident Ms Ricketts will support X’s relationship with his maternal family as well as with his paternal family. Likewise I am confident that Ms Crowe would also support X’s relationship with the paternal family, to the extent that it is safe to do so, given the ongoing problems with the father and his lifestyle.
Ms Ricketts has been responsible for all decisions regarding X’s care over the past four years. The maternal grandmother was content to leave Ms Ricketts with the responsibility for X’s care and welfare until this litigation commenced and until Ms Ricketts moved away from (omitted) with X. This is not a criticism of the maternal grandmother – she was busy caring for A and C and she trusted Ms Ricketts to look after X.
The poor relationship between the parties in the last 12 to 18 months meant there has been no effective communication between them and therefore no way for the maternal grandmother to be able to participate in decision-making responsibility. However she has actively pursued an ongoing relationship with X.
I also note that while both parties are seeking sole parental responsibility should X live with them, they both agree to consult with the other party about his care and welfare. This is a positive step forward and I hope it is genuinely adhered to by both parties.
The Court must consider the likely effect of any changes in X’s circumstances. This is an important factor and must be given very serious consideration by the Court. Clearly it would be a significant emotional upheaval for X if he moves from Ms Ricketts’ care and goes to live with Ms Crowe.
Mr S discussed this issue at paragraph 76(i) and paragraph 80 of his report. He noted that there could be considerable short term distress for X and that this needs to be weighed up against the other factors that mitigate in favour of such a move, such as X’s sibling relationships, his connection to his Aboriginal culture and his sense of belonging within his extended biological family.
I will discuss the parties’ parenting capacity and their attitude to the responsibilities of caring for X together, because these factors are closely related. Each party raise a number of criticisms about each other’s parenting capacity, but I conclude that many of these allegations reflect the extent to which each party has been excessively reactive over the past 18 months. They have highlighted every criticism about the other party, no matter how small and both parties have reacted to community gossip without checking whether there is any real basis to the allegation. The Court can only hope that there will be more effective communication between the parties in the future, for X’s sake.
Ms Crowe raised a number of concerns in relation to Ms Ricketts’ day-to-day parenting. While there is sometimes a grain of truth within these concerns, I find that these concerns are generally overstated and overemphasised. In relation to X’s school sores, I accept that the maternal grandmother took him to the health service in (omitted) on the day that he came into her care and the health service noted that X had dried scabs or lesions on his buttocks. Ms Ricketts gave evidence that she had not seen any sores on the child, but it is highly unlikely that the sores would have arisen across that one day, which brings her evidence into doubt on his topic.
This is concerning, but other evidence, such as the (omitted) Health Centre records, indicate that Ms Ricketts ensured X had regular health checks and has been attentive to X’s health and welfare. On balance, I do not consider the school sore incident is sufficiently serious to indicate that Ms Ricketts is unable to provide appropriate care for X.
In the course of cross examination the maternal grandmother withdrew her allegation that X was not being properly fed by Ms Ricketts. She was also reassured to hear that Ms Ricketts arranged regular health checks for X. My recollection is that Ms Crowe actually apologised to Ms Ricketts for implying that she was not feeding X properly in light of the medical evidence. In relation to X’s asthma, I accept Ms Ricketts’ evidence that she does not smoke inside in X’s presence.
There was a great deal of cross-examination about X’s interaction with D, Mr M’s youngest child. Sadly, D has been the victim of sexual abuse in the past. Ms Ricketts acknowledged that D exhibits some disturbed behaviour and frequently runs away or ‘goes wandering’. She took X with her on one such occasion last year. The two children walked some distance to a nearby picnic ground called (omitted) and strangers there had to intervene when the children ended up in the water.
This was a very alarming incident and could certainly have ended in tragedy. Perhaps Ms Ricketts and Mr M could have been more alert to the risk of X running away with D if he was with her. Perhaps they could have better secured the premises or the property so it was not so easy for the children to leave. Nonetheless I accept Ms Ricketts’ evidence in this regard. Once she and Mr M realised they could not hear the children playing in another room, they tried to find them and then called the police when the children were not located.
It is unrealistic to assume that parents or caregivers are physically present with their children every minute of every day. I have no doubt this incident was a wake-up call for Ms Ricketts and Mr M, but I do not see it as such a significant failing in her parenting that it would affect my decision in relation to X’s care.
I have taken similar attitude to the incident where Ms Ricketts came upon D engaging in some sexualised behaviour with X whilst the children were in the bath together. Ms Ricketts and Mr M were aware of D’s overly sexualised behaviour, as described in the evidence. Perhaps they should have supervised the children’s bath times more closely. But to suggest that they should not have allowed D to bathe with the other children in the family could simply have led to D feeling further stigmatised.
The evidence indicates that Ms Ricketts reacted appropriately. She contacted DoCS and sought support. She expressed some frustration with their response and I agree that it was surprising for D’s behaviour to be dismissed as “usual childhood sexual play or exploration”, given that she has been a victim of sexual abuse herself. That is a less than helpful response from a social worker, in the circumstances.

The maternal grandmother was very concerned on another occasion when she saw X run away from Ms Ricketts and Mr M. Mr M chased after X and apparently grabbed him roughly and shook the child. The maternal grandmother gave evidence that she was so angry about Mr M’s behaviour that she has cut him off and no longer considered him to be part of her family. At the same time she conceded that Mr M acted protectively by preventing X from running onto the road. While Mr M may have shaken X, I consider this was more likely to have been in reaction to his concern about the child’s safety, rather than an aggressive act of violence.
I am not going to address the animal cruelty allegations. Ms Ricketts has acknowledged that she did not make proper, reliable arrangements for the care of her pets while she was away. She pleaded guilty. There is no suggestion that this reflected an ongoing pattern of behaviour and does not affect my assessment of her capacity to care for X.
Ms Ricketts raised concerns about the maternal grandmother’s day to day care of X and his brothers, but I consider many of Ms Ricketts’ concerns have been overstated in the heat of this litigation. There has been no real basis for Ms Ricketts to seek police welfare checks in relation to X’s time in the maternal grandmother’s care.
Ms Ricketts conceded that Ms Crowe actually takes good care of the older boys and acknowledged that she had previously held a great deal of respect for the maternal grandmother. Other evidence supports that the older boys are progressing well in their grandmother’s care.
The major concern regarding the maternal grandmother relates to family violence, the maternal grandmother’s alcohol consumption and the effect that has on her parenting capacity and her emotional availability for the children. The COPS records indicate that certainly in the early years the maternal grandmother was often noted as being intoxicated herself when police attended even though she was usually presenting as the victim in these incidents. It is clear that she has been subject to appalling abuse and assaults from Mr D in the past.
The maternal grandmother says that she is now in control of her drinking. While she may go out and drink excessively once or twice a month, she ensures that the boys are being cared for elsewhere, often by her daughter Ms K. The maternal grandmother gave evidence that she limits this behaviour to weekends when the boys can stay with other family members. She does not allow alcohol to affect her care of the children at any other time.
The Court would normally be cautious about relying upon a party’s self-report in this regard, but I take into account that the maternal grandmother gave open and frank evidence about her drinking and the impact of her drinking. There is also corroborating evidence to suggest that the maternal grandmother’s use of alcohol is not as significant as the police records might suggest. The December 2014 (omitted) Health report noted that the maternal grandmother did not present with any health problems associated with chronic alcohol abuse, nor did the health centre records support any historical concerns regarding alcohol abuse. This and more recent medical reports before the Court describe the maternal grandmother as being in good health.
As mentioned, the older boys are attending school regularly and present as tidy and well cared for. The maternal grandmother is ensuring that B attends playgroup regularly. She ensures the boys attend their football games and other recreational activities. She is involved in community activities. It is hard to imagine she could maintain this level of functioning if she is a chronic alcoholic.
There is no doubt that her public behaviour has at times been influenced by her consumption of alcohol. The incident at the golf club earlier this year is one such example. Even if Ms Crowe felt justified in taking a stand about what she saw as racism being demonstrated by staff, abusing the staff member as she did was not the right way to address the problem and does not reflect well upon her.
The maternal grandmother conceded that she can be over-reactive. She agreed that she tended to think the worst of Ms Ricketts and would believe anything negative or critical she heard about her behaviour. This had led to anger and conflict at handovers. Insofar as she had reacted angrily, the maternal grandmother agreed her behaviour was wrong. She conceded that it was not fair to Ms Ricketts and that it would be upsetting for X to see her behaving in this way.
It would be preferable if the maternal grandmother tried to moderate her reaction whenever she is upset by someone’s behaviour. It would be preferable if she did not drink excessively, but found other ways to relax. However I consider Ms Crowe was able to reflect upon her past behaviour and demonstrated some insight about the need to change her behaviour in the future.
While these risk factors cannot be disregarded, the maternal grandmother’s evidence and presentation in the witness box was appropriate and reassuring. I conclude that the past family violence and her alcohol use, while significant, should not disqualify the maternal grandmother from providing primary care to any of the children, including X.
It is very concerning that her former partner Mr D has previously been found guilty of child sex abuse and is on the sex offenders register, however I accept the grandmother’s evidence that she was vigilant in this regard, once she was aware of his conviction. In any event, the maternal grandmother is no longer in a relationship with Mr D. I note evidence was presented regarding Ms Ricketts’ friendship with another man in the (omitted) community who is presently facing charges of child sexual abuse, but there is no suggestion she has left X alone in that person’s care or would ever do so.
On balance, I conclude that both parties have demonstrated their capacity to provide for X’s day to day care, either directly or through the maternal grandmother’s care of his older brothers. They have generally demonstrated an appropriate attitude to the responsibilities associated with caring for X. While there are serious criticisms that can be made regarding the maternal grandmother in the past, she demonstrated considerable insight into these issues. The evidence indicates that the older boys are flourishing in her care, which is a very significant factor in my decision.
The Family Law Act places great importance on the right of Aboriginal and Torres Strait Islander children to enjoy their culture and to have the opportunity to grow up knowing their culture in an active and meaningful way. X is a young (omitted) boy. The maternal grandmother is a proud (omitted) woman with very strong connections to her culture, traditions and to her country. This is knowledge that she and her family will share with the boys as they grow up.
The maternal grandmother’s oral evidence on this point was limited but powerful. She lives on country. She and her family live their culture every day and can pass on that knowledge and experience to X, just as she does with the older boys. She talked about the day-to-day activities that occur within the community. She and her extended family know about the land and the culture and would teach that to the boys.
Ms Ricketts also identifies as a (omitted) woman, however she has been denied the opportunity to grow up knowing her people and her culture. This is a tragedy for Ms Ricketts, but this experience makes her keenly aware how important it is for X to maintain strong relationships with his extended family so that he can learn from them, about his country and his culture.
I am satisfied that Ms Ricketts is accepted by significant parts of the (omitted) Aboriginal community in (omitted) and (omitted) as a member of their community. This was an issue of contention for the maternal grandmother, but not an issue that the Court was asked to determine. I take into account Mr S’s evidence on this topic. The issue is not simply whether Ms Ricketts falls within any kinship definition, but the extent to which the parties can best meet X’s right to maintain a real connection his culture and to fully participate in his culture. I accept that Ms Ricketts would support and help X to maintain his sense of Aboriginal identity and connection to his culture, but the reality is that she is not as well placed as the maternal grandmother in this regard.
I am sure the maternal grandmother and extended family would still support X’s connection to culture even if he continued living with Ms Ricketts, but from X’s point of view, the experience would be very different. He would be visiting his culture and his traditions, not living them. This is a significant factor for the Court to consider.
I have already referred to the decision of Verran & Horte & Verran. The Full Court of the Family Court in Donnell & Dovey[6] also discussed these matters and commented with approval upon Mr S’s article entitled, “The Best Interests of the Aboriginal Child in Family Law Proceedings”.[7] In this article Mr S commented upon the fluid nature of Aboriginal child caring arrangements and parenting practices, noting that it is not unusual for Aboriginal children to move freely between kin and within their community. He discussed the concept that Aboriginal parenting is based on a collectivist view of family and social life which sees responsibility for the growing up of children invested in many people, not just their mother and father. Within this approach, children then come to trust in the capacity and commitment of a multitude of people to care for them and to nurture them through childhood and into adulthood.
[6] Donnell & Dovey (2010) FLC 93-428
[7] (1998) 12(2) Australian Journal of Family Law 140
From a white Anglo-Saxon perspective, this raises concern for the possible disruption to the child’s primary attachment relationships. It is a matter for the Court to consider whether the disruption to X’s primary attachment relationship may be outweighed by the benefits arising from his exposure to a broader and deeper network of family and kin with whom X may eventually form the same strong relationships. These are significant issues to contemplate when considering the importance for X in being able to grow up within his family of origin and his culture.

Conclusion

This is a very difficult matter, as all Counsel acknowledged. There are advantages and disadvantages that each of the parties bring to their role of primary caregiver for X.
Both parties agree that whoever is granted primary care of X, that party should have sole parental responsibility. I agree that is an appropriate outcome, provided that they consult with the other party. At the beginning of the trial I would not have thought that such consultation would be possible, but I am heartened by a shift within the dynamic between Ms Ricketts and Ms Crowe. Given that development, it will be in X’s best interests that there be some level of consultation with the other adult who is so significantly concerned with his welfare.

X’s living arrangements

I am satisfied that both parties are able to provide appropriate day-to-day care for X. They both have their failings and their flaws, but both Ms Ricketts and Ms Crowe love X and want the best for him as he grows up.
The maternal grandmother acknowledged that X has a primary attachment to Ms Ricketts, given her role as his caregiver for the past three years. Despite earlier comments to Mr S that X should not spend any time with Ms Ricketts, the maternal grandmother agreed that X’s relationship with Ms Ricketts is important to him and should be preserved. She acknowledged that it would be a big wrench for X to move from Ms Ricketts’ care, but is confident that the advantages and emotional connection he has with her and with his brothers will quickly compensate for that disruption.
The applicant agrees that X loves his grandmother and his brothers, but considers these relationships are still developing and that there are simply too many risks associated with the maternal grandmother’s household. Nonetheless she agrees that it is vital for X to spend regular time with his grandmother so that he has a strong place within the extended family and can learn his (omitted) culture and traditions.
I acknowledge that there are real concerns regarding the maternal grandmother’s past history. In assessing whether she is able to provide a suitable long term placement option for X, I place considerable weight on her oral evidence. She presented as a straightforward witness who answered questions openly, even when it was to her disadvantage. She acknowledged her past problematic behaviour in relation to alcohol and family violence within her home. I found her evidence straightforward and compelling when she apologised for that behaviour and acknowledged that it could not continue into the future.
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 M. Whether she is living in a de facto relationship with Mr M 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.
I agree with the submissions of the Independent Children's Lawyer that many of the risk factors identified in the maternal grandmother’s household can be managed with appropriate orders. I am reassured that both parties have respected the Court process to date and have complied with the Court orders pronounced in relation to X.
The best outcome would be if the applicant and maternal grandmother were both still living in (omitted), because then they could both have a substantial parenting role in X’s life, but that is not an option. The applicant is now settled in (omitted) and there is simply too much water under the bridge for her to consider moving back to (omitted).
As to the implementation of this parenting arrangement, I will order that X remain living with the applicant for the remainder of this year and that he move to live in the maternal grandmother’s care in January 2016. I note X will be turning four years old in May 2016 and he will be able to commence his kindergarten and schooling in his new home.
Regarding the longer term care arrangements, I accept the submissions from the maternal grandmother and the Independent Children's Lawyer that the travel between (omitted) and (omitted) has a significant impact on X. I conclude that the appropriate outcome is that X spends time with Ms Ricketts from Friday until Sunday every third weekend until he commences school. Once he commences school, the visits will start later and take place on a monthly basis so that X’s school attendance is not affected by the travel involved. Having said that, if there are occasions when Ms Ricketts is able to stay with friends or family in (omitted), I would see no reason why X could not spend additional weekend time with her in (omitted) by agreement between the parties.
I will make orders in relation to communication between the parties by and large as recommended by the Independent Children's Lawyer. In terms of special occasions, I take into account the submissions from both parties in relation to Christmas. On balance I prefer the outcome proposed by Ms Ricketts and will order that Christmas Day will simply alternate between the parties, depending on which party is caring for X during the first half of the Christmas school holidays. X has the experience of living with Ms Ricketts. He has a very strong connection to her. It may even be that he will enjoy being the sole focus of attention on Christmas Day sometimes, if only because he may get more presents that he can then take back and show off to his older brothers.
I will make orders in relation to the parties’ parenting behaviour, largely as recommended by the Independent Children's Lawyer. These orders clearly identify the parties’ obligation to provide a safe and secure environment for X and his brothers as they grow up. I have not included an order restraining the maternal grandmother from allowing X to be in the presence of any person affected by alcohol because I consider it would be unenforceable, but I will order that both parties protect him from being exposed to any violent or aggressive behaviour.
I will adjourn the proceedings to hear further submissions in relation to the long term handover arrangements. I otherwise now make orders as published at the commencement of these Reasons.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Kelly

Date: 12 August 2016

[4] Verran & Hort & Verran [2009] FMCAfam 1 @ para 256

[2015] FCCA 3629

24 September 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness