Ricketts and Crowe (No.2)

[2018] FCCA 1691

FEDERAL CIRCUIT COURT OF AUSTRALIA

RICKETTS & CROWE (No.2) [2018] FCCA 1691

Catchwords:
FAMILY LAW – Child aged six years – child has Aboriginal background – child placed by mother with non-biologically related carer when an infant –final hearing 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 longstanding carer – child now in the care of Indigenous Kin - former carer seeks further orders on basis of serious parental misconduct by the maternal grandmother subjecting him to abuse – proceedings involved further family report and the reappointment of independent representation of child – 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 – prolonged unnecessary litigation has the potential to represent systems abuse of child – risk of emotional manipulation of the child – view that to allow proceedings to proceed to another final hearing would constitute grave risk to child’s emotional equilibrium – court is required to take all allegations of child abuse seriously – child welfare jurisdiction resides with state authorities – court has fundamental statutory obligation to examine issues of risk surrounding a child concerned in proceedings – matters to be considered – best interests.

Legislation:

Family Law Act 1975, ss. 60B3, 60CC(3)(h), 62G, 69ZW, 91B

Cases cited:

Rice & Asplund (1979) FLC 90-725

Ricketts & Crowe [2017] FCCA 718

Applicant: MS RICKETTS

Respondent: MS CROWE

File Number: ADC 3042 of 2013

Judgment of: Judge Brown

Hearing date: 7 June 2018

Date of Last Submission: 7 June 2018

Delivered at: Adelaide

Delivered on: 4 July 2018

REPRESENTATION

Counsel for the Applicant: Ms Heeley

Solicitors for the Applicant: Far West Community Legal Centre

Counsel for the Respondent: Ms Storey

Solicitors for the Respondent: Rachel Storey & Associates Lawyers

Counsel for the Independent Children's Lawyer: Ms Hayward

Solicitors for the Independent Children's Lawyer: Legal Aid NSW Parramatta Family Law

ORDERS

1. All previous orders in respect of the applicant MS RICKETTS spending time and communicating with the child [X] born 2012 are dismissed.

2. The appointment of the independent children’s lawyer is discharged.

3. All extant applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Ricketts & Crowe (No.2) 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 reasons for judgment need to be read in conjunction with earlier reasons delivered, in the case by me, on 13 April 2017.[1]  Those reasons dealt with the application of a so-called rule in Rice & Asplund to the circumstances of the child, who is the subject of the proceedings, [X] born 2012. 

   [1]  See Ricketts  & Crowe [2017] FCCA 718

2. These more recent reasons deal with an application to re-activate the rule given what has transpired between the parties since April of last year. This has included the re-appoint of an Independent Children’s Lawyer for [X] and the commissioning of a further family report, pursuant to the provisions of section 62G of the Family Law Act 1975.

3. More significantly, it is apparent there has been no lessening of the acerbic relationship between the two parties concerned, which has involved each of them making serious allegations of parental misconduct, involving the abuse of [X], against the other. 

4. In these circumstances, it is the view of the Independent Children’s Lawyer and of the independent expert that to allow the proceedings to continue, particularly to proceed to another final hearing, which constitute a grave risk to [X]’s emotional equilibrium and would be tantamount to abuse of him.

5. Accordingly, both the respondent and the Independent Children’s Lawyer seek that the court dismiss the application herein, a course which the applicant concerned submits would constitute a grave miscarriage of justice for her personally and also possibly continue a situation in which [X] himself is placed at great risk as a result of being exposed to some form of family violence, neglect or abuse.

Background

1. As a result of orders made by Judge Kelly, following a contested hearing, in Broken Hill, in September of 2015, [X] now lives with his maternal grandmother, Ms Crowe, in Town B, New South Wales and has done so since early January 2016. 

2. The central controversy in this case is easily stated but remains emotionally potent for all concerned, and will forever be so.  [X]’s parents are Ms S and Mr B.  When [X] was a babe in arms, Ms S informally placed in the care of Ms Ricketts, who is not biologically related to him. 

3. Ms Ricketts grew [X] up from this time, until he was placed in the care of the maternal grandmother, Ms Crowe, as a consequence of Judge Kelly’s determination.  Ms Crowe also has the care of [X]’s full siblings, [A] and [B], as well as a half-sibling [C].

4. During my regular visits to Broken Hill, in 2017 and 2018, Ms Crowe and Ms Ricketts have regularly appeared before me.  From their presentation in court and what they have said to each other, in my presence, on the bench, it is abundantly clear to me that Ms Crowe and Ms Ricketts detest one another.  I do not make this finding lightly.

5. Ms Ricketts sees herself as an innocent victim, who volunteered herself to parent [X] when his biological family were effectively missing and unable to do so.  As such, it constitutes a grave injustice to her that [X] is living with his maternal grandmother, rather than with her.  It is her view that, to all intents and purposes, she is [X]’s mother. 

6. On the other hand, Ms Crowe believes that [X] is now where he should be, which is in the care of his Indigenous kin, particularly in the form of his brothers.  She portrays Ms Ricketts as interfering in her family business and claiming kinship connections to which she is not entitled.  Essentially, Ms Crowe views Ms Ricketts as a meddlesome busybody, who is not and has never been entitled to be involved in [X]’s growing up because, unlike [X] and his family, she is not Aboriginal.

7. These issues of kinships, ethnicity, culture and background are, for obvious reasons, highly emotional and controversial in this case.  Ms Ricketts identifies as an Indigenous person, who descends from the (omitted) Nation, albeit, one who was part of the stolen generation and so unjustly deprived of her proper cultural inheritance. 

8. Ms Crowe does not accept Ms Ricketts' Aboriginality.  This controversy has apparently spilled over into other disputes before the applicable Aboriginal Land corporations for Western New South Wales, who has some authority to determine such issues, which are beyond the remit of these proceedings.

9. Judge Kelly’s final orders envisaged [X] spending time with Ms Ricketts on weekends and during school holidays.  These orders were made in recognition of [X]’s significant relationship with Ms Ricketts, which had arisen during the approximately three years [X] had been in her care.  Ms Ricketts lives in Town A, although previously she lived in Town B. Town A and Town B are approximately 200 kilometres apart. 

10. To describe the contact arrangements as problematic would be a gross understatement.  The problem of distance –  although significant and the practical difficulties large – neither party has a car – pales in comparison to the real problem arising in the case, which is Ms Crowe’s abiding antipathy for Ms Ricketts and her resistance to making [X] available to spend time with her. 

11. For her part, almost as soon as the proceedings were concluded, Ms Ricketts has consistently claimed that [X] is at risk of serious abuse in Ms Crowe’s care and therefore the care arrangements for [X] should revert to what had occurred before, namely he should be returned to Ms Ricketts’s care, as a matter of extreme urgency. 

12. In these circumstances, in addition to her dislike of Ms Ricketts, Ms Crowe has another obvious and powerful reason for not making [X] available, namely he will not be returned, in accordance with any applicable order, because Ms Ricketts will make another allegation of child abuse, which justifies his retention. 

13. In this context, it should be noted that Judge Kelly herself characterised the case, when it was before her, as being one of particular difficulty, involving as it did issues of Aboriginality on the one hand, which are given particular emphasis in the Family Law Act and on the other issues arising as to the long standing nature of [X]’s placement in Ms Ricketts’s care at the date of trial.

14. However, notwithstanding the obvious issues of controversy arising from Judge Kelly’s decision and the fact that another judicial decision maker may well have concluded the case differently, Her Honour’s decision was not subject to appeal.

15. Ms Ricketts characterises Ms Crowe’s family as one driven by dysfunction, alcoholism and rife with the potential for sexual abuse of the children in her care particularly [X].  These are complaints, which she voiced throughout the earlier proceedings and which were investigated before Judge Kelly. 

16. Up to this point, none of the allegations concerned has been substantiated by any relevant child protection authority in New South Wales.  In addition, in my assessment, Ms Ricketts has not been able to provide any independent and objective evidence to support her allegations of mistreatment of [X].

17. For obvious reasons, the court is required to take all allegations of child abuse very seriously indeed.  Allegations should not be dismissed because of a lack of forensic proof or because they rely on the apparent disclosures of the child, even if that child is of tender years. 

18. At an earlier stage of proceedings, as a consequence of Ms Ricketts’ allegations that [X] was at risk of harm in Ms Crowe’s care and because of the problems arising from the contact arrangements between the two women concerned, I declined to act on Ms Crowe’s application to dismiss Ms Ricketts application to revisit Judge Kelly’s final orders, regarding [X]’s living arrangements. 

19. In the earlier judgment, I wrote as follows:

    “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. 

    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 R, 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 Town B, rather than remaining in the care of a person who was biologically a stranger to him. 

    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. 

    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 Town B and Town A, 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.”[2]

    [2] Ibid at [73]-[76]

20. In February of 2017, I also observed that the state based authorities, responsible for child protection in New South Wales, were unlikely to take many steps, if any at all, investigating the multiplicity of complaints of abuse provided to them in respect of [X]. This having been the pattern of the Department’s involvement hitherto.

21. Again, I was well aware that this vacuum did not absolve the court of its responsibility to act protectively in respect of [X], within the remit of its statutory obligations delineated by the Family Law Act.  I reiterate, however, that this court does not have a child welfare jurisdiction per se.  In New South Wales, as with the rest of Australia, that jurisdiction resides with the state authorities and ultimately its courts.

22. Given the potential moment of the complaints made by Ms Ricketts, I elected to re-engage the Independent Children’s Lawyer, earlier appointed for [X].  More recently again, a further family report was commissioned by the court.  This time, the report was completed by a different expert than the one engaged earlier.  The second expert was Mr B, whose report was released on 24 December 2017. 

23. The rationale for these two interventions was that although Ms Crowe had been investigated in the earlier proceedings, Ms Ricketts’s concerns could not be dismissed as being trivial.  The court has a fundamental statutory obligation to examine issues of risk surrounding a child concerned in any proceedings before it.

24. I was also concerned at the possibility that [X] might unwittingly fall between the two stools of jurisdiction provided by this court and the child protection courts of New South Wales.  This is a common concern in very many children’s matters coming before the court.  At the end of the day I considered that it would be unacceptable of me to reject Ms Ricketts’s allegations, merely because similar ones had been made before and Judge Kelly had found them to without substance.

25. In addition, although it was axiomatic that Ms Ricketts remained aggrieved at Judge Kelly’s decision and therefore had ample motive for wanting to undermine it in anyway open to her, it was potentially unsafe to dismiss her case on this ground alone.  The question which is most troubling, in cases such as this one involving vitriolic allegations of child abuse always remains “what if I’m wrong”.

26. Although I have no wish to make any remark which Ms Crowe will find hurtful, I was also well aware that she and [X] are members of a community which faces significant levels of disadvantage, at many levels.  For obvious reasons, such communities, very often, have higher incidents of child abuse than others. 

27. At the same time, I was also well aware that these issues had been previously litigated and found unsubstantiated and to prolong the litigation unnecessarily had the potential to represent systems abuse for [X], as he might be liable to feel unsettled in his current circumstances.  I considered that an ICL represented a measured response to these risks.

28. During the latter part of 2017, attempts by me and Ms Haywood, the ICL, to broker some peace accord between Ms Ricketts and Ms Crowe, focussed on [X], proved fruitless.  [X] did travel, on occasions, to Town A to spend time with Ms Ricketts, but they were few and far between and beset with great difficulties and significant animosity.

29. A community bus travels regularly between Town B and Town A.  It is either free or charges a modest fee.  Ms Haywood, as honest broker, attempted to engage the bus as a means of ensuring compliance at least with the spirit of Judge Kelly’s orders.  From my perspective the logistical difficulties of getting [X] between the two towns seemed comparable to placing someone on the moon.

30. In his report, Mr B sounded significant warnings concerning [X]’s emotional wellbeing, in this difficult context:

    “The fact that Ms Crowe has repeatedly breached Orders and has not made [X] available on any significant basis to Ms Ricketts supports the intractability of this conflict and gives rise to a high probability of endless litigation thereby causing stress on both parties but most importantly to [X]. It is abundantly clear from Ms Crowe’s behaviour and statements at interview that there is no chance of her supporting [X]’s relationship with Ms Ricketts.”

31. At this juncture, Ms Ricketts seeks that the court fix her application, which seeks to change parenting arrangements for [X], so that he comes into her predominant care, for a further final hearing. 

32. The ostensible basis for this very significant change in parenting arrangements is her protective concerns for [X].  In addition, it would appear to be her position that such a change of regime is likely to be the only mechanism by which [X] will have any form of relationship with her.

33. It is her case that it is both implicit in Judge Kelly’s earlier decision and self-apparent given the arrangements for the child’s care since he was an infant, that she must be regarded as a person who is significant to his care, welfare and development. 

34. As indicated above, Mr B would be concerned at the implications for yet more litigation for all concerned, including [X].   This is the central issue arising at this stage.  I am not merely adjudicating between the rights of the two parties concerned. 

35. Rather, I am conducting an inquiry into what is best for [X].  He is not to be awarded, like a prize, to one party over the other, merely on the basis that she is the more deserving one.  Sadly, in very many of the cases coming before the court, there can be no happy ending for all who are concerned.

36. In this context, both the Independent Children’s Lawyer and Ms Crowe submit that such a further trial would suffer no useful purpose and so represent an abuse of [X].  In these circumstances, both contend that it is now appropriate for the proceedings to be dismissed, pursuant to the rule in Rice & Asplund.

37. Ms Ricketts contends, through her lawyer, Ms Heeley that it would wreak a significant injustice on her client, if her case was not able to proceed.  Necessarily, Ms Ricketts wants to put her various allegations to Ms Crowe to see how she will respond to them.  No doubt, she hopes this will lead to some significant forensic admissions, on Ms Crowe’s part, which will fatally undermine her credibility and establish that she represents a significant danger to [X]. 

38. In addition, Ms Heeley submits that there remain pending investigations with FACS in New South Wales, which are germane to [X].  In this context, she indicated that she and Ms Ricketts have visited the FACS office, in Town A, to inquire about the matter but, in effect, have been fobbed off, as they have been told that the Department will get back to them if necessary.  The implication of this submission being that the responsibility to investigate remains with this court.

39. The fact remains that Ms Ricketts has not been able to provide any written confirmation that the Department has any current active concerns about [X]’s placement with his maternal grandmother.  In addition, I have not been provided with any independent records from sources such as [X]’s school or any medical practitioner consulted by him which cause concern. 

40. On 20 February 2017, in response to Ms Ricketts’ allegations that [X] was at risk of abuse in Ms Crowe’s care, orders were made pursuant to section 91B of the Act inviting the Department of Family and Community Services to intervene in these proceedings. In addition, pursuant to the provisions of section 69ZW of the Act, the Department was ordered to provide relevant records of notifications of any child abuse, received by it, in respect of [X], to the court.

1. The Department declined to intervene in the proceedings.  The relevant documents produced by it have been disseminated to each of the parties concerned and their legal advisors.  As far as I know, no matters have been agitated as a consequence of these materials. 

2. The documents sought also related to [X]’s siblings, particularly his brothers [A], [B], and [C], who are also in Ms Crowe’s care.  Accordingly, attempts were made to mount a wide ranging inquiry into the welfare not only of [X] but also his family.  The subpoenas have been complied with and Ms Hayward has inspected the documents produced.  She has not sought to provide any of these documents to the court.

3. During much of 2017, the court, with Ms Hayward’s assistance, attempted to put in place a regime of orders which would enable [X] to spend some time with Ms Ricketts in Town A.  In my assessment, these efforts have had limited success and the parties themselves have more than amply demonstrated that they have no capacity to make any such orders work.  In addition, as indicted above, this process has enabled me to be exposed, first hand, to the antipathy between Ms Ricketts and Ms Crowe.  Ms Crowe, in particular, finds it difficult to resist sniping at Ms Ricketts. 

4. More recently again, Ms Crowe has filed an application in a case, supported by an affidavit, in which she alleges [X] has disclosed to his mother, Ms S, that Ms Ricketts and her partner had “touched him on his private parts and his bottom”.  Details as to when and where this occurred are not provided.  This allegation has led to a provisional apprehended domestic violence order, naming Ms Ricketts and her partner, Mr I as respondents and [X] as the protected person. 

5. More recently again, Ms Ricketts has responded to these allegations, which she vehemently refutes.  To utilise her own terminology, she would “rather take a bullet to the head than abuse a child”.  She believes that [X] has been coached to make the disclosures in question, if he made them at all.  In these circumstances, she has indicated that she would welcome any FACS investigation into them.

6. A significant component of Ms Ricketts’ case, regarding her concerns about the alleged deficits arising in Ms Crowe’s household, stem from what others in the Town B community have told her.  In general terms, I accept that Town B is a community not without significant social problems.  However, I must also be careful not to adopt any stereotypical views about this community or place undue weight on hearsay evidence.

7. In her most recent affidavit, Ms Ricketts has alleged that [X] has exhibited forms of sexualised behaviour, which cause her concern.  In addition, she has deposed as follows;

   “I have not named some of the third parties who have given me important information about certain issues in this dispute because of the repercussions they would be likely to face in their small community, and ask that the information be nevertheless admitted into evidence.”[4]

   [4]  See Ms Ricketts’ affidavit filed 6 June 2018 at [2]

8. The fact remains, however, that Ms Ricketts has not provided any independent expert assessment to support her various allegations.  In addition, I am satisfied that all reasonable steps have been taken, by this court, to advise the relevant New South Wales authority of the allegations made in this case and these actions have not precipitated any formal response from the department.  In addition, many of these matters or, at least ones similar to them, were the subject of investigation in the trial before Judge Kelly.

The family report of Mr B

1. Mr B interviewed [X] in December of 2017, when he was five years and seven months of age.  He described the child as looking healthy and well.  He reported having a good relationship with Ms Crowe and his siblings and enjoying attending at school.

2. Mr B observed [X] interacting with Ms Crowe and his two full siblings, [A] and [B] as follows:

   “[X] interacted with his siblings in a confident, unforced, jovial and animated manner. His level of communication was significantly increased and he was chatty with Ms Crowe. There was no competition for Ms Crowe’s time or affection and all children were exceptionally well mannered and respectful. Ms Crowe easily engaged with all 3 children and provided copious amounts of positive feedback to their various drawings and activities. Physical affection was spontaneously given by [C] to Ms Crowe who sat in her lap with light-hearted banter that he was getting too old and big for her.

   Throughout the session all children and Ms Crowe were animated, jovial and confident. No concerns arise from this observation.”

3. The observations observed by Mr B, of [X] with Ms Crowe lasted approximately 30 minutes.  He undertook a similar observed interaction with Ms Ricketts and her partner Mr I, which lasted approximately 40 minutes.  It is clear from Mr B’s report that he had some concerns arising from this observation.

4. In particular, [X]’s greeting to Ms Ricketts was described as being muted.  Ms Ricketts’ conversation with [X] was described as being pressured and involved her asking questions of [X] regarding Ms Crowe and his parents.  Overall, Mr B reported as follows:

   “Ms Ricketts told [X] numerous times ‘I love you’ and gave him hugs which was accepted without recoil but with [X] looking awkward and uncomfortable. Ms Ricketts spoke to [X] in hushed terms briefly then stated that his aloofness to her was as a result of being coached or coerced. She demanded an immediate interview of [X] to further understand this. This demand was not assented to and the observation of interaction proceeded.

   Interaction largely consisted of Ms Ricketts taking the lead verbally and asked inquisitorial questions about Christmas, his parents and Ms Crowe. She made the point of stating having tried to telephone [X], however, it appeared that Ms Crowe had her mobile phone turned off. [X] appeared unfazed by this information.”

5. The impression provided by Mr B’s report is of Ms Ricketts placing some level of emotional pressure on [X] and demonstrating a pre-occupation with Ms Crowe and her parenting of him.  In this context, Ms Ricketts apparently examined [X]’s head, looking for injuries and questioned him as to whether he had been injured.  Mr B summarised his observations as follows:

   “Observation of interaction of [X] with Ms Ricketts indicated Ms Ricketts as having pressured speech patterns, being somewhat intrusive and concerningly made somewhat manipulative by making statements of…I am your mother…you are my baby… everything will be all right. These actions, while well intended, are considered to be confusing for [X] and gives rise for divided loyalties. As such, it is considered that Ms Ricketts genuinely considers herself to be [X]’s primary attachment figure.”

6. Significantly, Mr B had access to material from Ms Crowe’s doctor, which indicated that she is medically well and able to continue caring for [X].  Her liver function tests do not indicate excessive drinking.  A letter from [X]’s doctor describes him as well cared for in Ms Crowe’s care and that there are no observed signs of abuse or neglect in respect of [X]. 

7. In all these circumstances, Mr B was not in favour of there being yet another significant change in arrangements for [X]’s care, which would break his connection to his siblings and take him out of his cultural environment.  In addition, Mr B was concerned that there was a risk of [X] being subjected to emotional manipulation, if he spent significant periods of time in Ms Ricketts’ care. 

8. Ms Ricketts does not accept the validity of Mr B’s report or its recommendations.  It is her case that the report has failed to disclose a significant element of the observed interaction, which was that [X] disclosed to Ms Ricketts, in Mr B’s hearing, that he had been pressured by Ms Crowe to say that he did not want to return to her (Ms Ricketts’) care. 

9. In Ms Heeley’s submission, this is clear evidence of [X] having been subject to coercion, which Mr B has either negligently or deliberately omitted from his report, which renders its utility, in these proceedings, dubious.  In these circumstances, it is Ms Heeley’s submission that her client is entitled to cross-examine Mr B and it would be imprudent of the court to place any great significance on his untested report.

The legal principles applicable

1. I set out the relevant principles, particularly those relating to the rule in Rice & Asplund in the earlier judgment.  The essential ethos of the rule is an exemplar of the paramountcy provision particularly the fact that a child’s best interests are not usually served by there being endless litigation in respect of arrangements for their care.  Final orders are intended to be just that – final. 

2. I acknowledge that Judge Kelly’s orders were controversial.  It was inevitable that they would be so, given the unusual circumstances of the case concerned.  Judge Kelly’s orders were not subject to appeal.  It is not my function to review her orders.  Rather, I am entitled to revisit those orders only if I am satisfied that there has been a sufficient change of circumstances, which necessitate their revision, because it is in [X]’s best interests so to do.

3. In the earlier decision, I adopted the following considerations as being germane to any determination as to whether there had been such a significant change of circumstances following the making of any earlier parenting order:

   ·    The past circumstances, including the reasons for the decision and the evidence upon which it was based;

   ·    Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing;

   ·    If there is such a likelihood, the nature of the likely changes are to be weighed against the potential detrimental to the child concerned arising from the litigation itself.

4. It is clear, from the relevant authorities, that the issue of whether there is such a sufficient change in circumstances may be determined as a preliminary issue prior to the engagement of the final hearing process.  However, in this context, the court is required to give credence to the evidence of any applicant concerned at its highest. 

Conclusions

1. I now turn to consider each of these factors in turn.  [X] has been in Ms Crowe’s care since January of 2016, a period of approximately 2.5 years.  Given [X] was born on 2012, this represents a significant proportion of his life and, axiomatically, the portion which has greater emotional continuity in his mind. 

2. The day to day reality of his life for the past 2.5 years is that he has lived with his maternal grandmothers and siblings.  Clearly he is likely to remember Ms Ricketts, but from his perspective, January 2016 is a very long time ago.  In addition, there is no evidence to indicate that [X] is agitating for a change in his care arrangements or is otherwise pining for Ms Ricketts. 

3. The decision to place [X] in Ms Crowe’s care has been implemented.  In my view, there is nothing to indicate that he has not adjusted appropriately to what must have represented a significant change of circumstances for him.  More significantly, apart from the nature of his earlier relationship with Ms Ricketts, there are no cogent grounds open to the court to consider subjecting the child to a further significant adjustment. 

4. In my view, the focus of Ms Ricketts’ case is on her feelings and her perception of what she is entitled to, rather than on what will be in [X]’s best interests.  This is a significant finding, which I appreciate will be hurtful to Ms Ricketts, which I regret deeply.

5. The decision to place [X] in Ms Crowe’s care was not one which was made arbitrarily, or without consideration of evidence.  Judge Kelly was influenced by the evidence of the court expert, Mr R, who opined that it was likely to be culturally detrimental to [X], as an indigenous child, to be separated from his kin, particularly in the form of his brothers, who shared his background and indigenous identity. 

6. Considerations relating to the cultural identity of a child, particularly an Indigenous child, are given particular emphasis in part VII of the Family Law Act, which is the part of the Act dealing with arrangements for children. 

7. In particular, section 60B(3) emphasises the right of Aboriginal children to maintain a connection with their culture, including the right to enjoy that culture with other people who share it [see also section 60CC(3)(h)]. In this case, Judge Kelly found, as do I, that [X] shares his cultural background with his grandmother and siblings. This is not to place any aspersions on Ms Ricketts’s cultural identity. However, it is not congruent with that of [X].

8. The factors on which Ms Ricketts relies to reopen the proceedings centre on her allegations that Ms Crowe’s household represents a significant threat to [X]’s safety.  In my view, over the course of the past 18 months or so, Ms Ricketts has been given an opportunity to provide cogent evidence in respect of her concerns.  In addition, these matters have been investigated, both by the independent children’s lawyer and Mr B.  Finally, the relevant state based authorities have not elected to become engaged in these proceedings. 

9. In these circumstances, I doubt that there is any significant probability that Ms Ricketts will be able to advance evidence to the court, which will result in the existing arrangements for [X]’s care being varied in any significant way, particularly in terms of a change of his principal place of residence.

10. In my view, the current evidence provides unequivocal evidence that it would be emotionally disruptive for [X] to be moved from one principal provider of care to another, against a background of discord and acrimony.  Such an outcome would be tantamount to [X] continuing to be pulled from pillar to post. 

11. In addition, [X] having been reunited, in the same household, with his siblings, it is difficult to see how being separated from them again would advance his best interests, particularly given the emphasis in the Act on issues relating to Aboriginal kinship.  I doubt that, if tables were turned, Ms Ricketts would demonstrate any great facility to ensure [X] interacted regularly with his Town B family.

12. Rather, I fear, she would do as she accuses Ms Crowe of doing towards her, namely working through every means open to her to undermine [X]’s relationship with her and placing every possible difficulty in the child travelling from Town A to Town B.

13. In my view, the court’s emphasis need to be on how to protect [X] from coming to harm.  The vitriolic relationship between the two parties concerned represents the greatest threat to [X]’s emotional security.  The only individuals who have the power to mend this relationship are Ms Ricketts and Ms Crowe.  Neither of them, in my estimation, currently has any capacity to empathise with the situation of the other and put the injuries of the past behind her. 

14. The conflict between them is likely to remain perennial.  In such circumstances, in my view, it would fatuous of the court to consider that this case could have a happy ending if it allowed its prolongation.  To the contrary, in my view, for the court to fail to make the necessary hard decision would represent an abrogation of its responsibilities towards [X] to ensure his best interests.

15. In my view, at its highest, Ms Ricketts’ case relies on innuendo and suspicion.  In these circumstances, I must weigh up the possibility of some cogent piece of evidence possibly arising, in any trial, which may cause me to revisit this assessment of Ms Ricketts’ case. 

16. Given the involvement of Ms Hayward and the period which has elapsed since Ms Ricketts sought to reengage the proceedings, I am not satisfied that there is any reasonable likelihood of any such evidentiary revelation arising.  In my view, all that would be served by further proceedings would be to re-stoke the coals of animosity between Ms Ricketts and Ms Crowe, which would not be helpful to the emotional equilibrium of [X].

17. The other factor relevant to any decision to reopen the proceedings centres on the close to total frustration of Judge Kelly’s orders dealing with the support of [X]’s relationship with Ms Ricketts arising from the early portion of his life.  I acknowledge that Ms Crowe has demonstrated a close to total disregard for these orders and has indicated, on more than one occasion, her disavowal of them.

18. These proceedings are not designed to punish Ms Crowe for breaching the orders in question.  Rather, their focus remains on what is the best outcome for [X].  In this context, the evidence of Mr B, untested as it is, regarding Ms Ricketts’ inability to restrain herself from questioning [X] about Ms Crowe, is significant. 

19. This is an extremely sad case.  It arose because of a decision made many years ago, when [X] was a baby, by his mother, to place him with Ms Ricketts.  Quite possibly, Ms S did not appreciate the implications of this decision and the ramifications it would have for all concerned many years later.  It is impossible to consider Ms Ricketts as anything other than the victim of this significant but probably ill-considered decision, made when she was in a situation of significant personal dysfunction.

20. However, notwithstanding the natural sympathy arising for Ms Ricketts, it cannot be the object of these proceedings to compensate her, in some way, for suffering the obvious and emotionally potent consequences of this decision. 

21. In my view, there is a very real risk that Ms Ricketts will never be in a position to let go of the hurt and anguish, which she feels or to abandon the hope that the court will come to its senses and redress the injustice suffered by her. 

22. In these very challenging circumstances, the continuance of the proceedings, including Ms Ricketts having significant time with [X], must constitute a significant risk to [X], particularly in the sense that Ms Ricketts is not likely to let go of any opportunity to undermine [X]’s relationship with both his maternal grandmother and siblings. 

23. In this context, I accept Mr B’s evidence that these relationships are beneficial and central to [X]’s wellbeing.  They were also central to Judge Kelly’s difficult decision to change the then comparatively long standing care arrangements for [X] with Ms Ricketts. 

24. In the period since, [X]’s relationship with his grandmother and brother must necessarily become more rather than less concrete.  In these circumstances, Judge Kelly’s decision having been made, it cannot be unmade without according great trauma to [X], whose life, up to this stage, has not been without its challenges.

25. Ms Ricketts’ asserts that Mr B’s report and the methodology underpinning it is fatally flawed.  In my view, this equates more to Ms Ricketts fervently disagreeing with Mr B’s recommendations, which is only to be expected, given the circumstances, rather than making any viable forensic criticism of it. 

26. I acknowledge that Mr B’s conclusions have not been subjected to any view of scrutiny through cross-examination.  However, in my view, given the evidentiary background, which led to the commissioning of the report, it is difficult to see that Ms Ricketts is in a position to put any factor to Mr B, which would significantly undermine his conclusions.

27. One thing, in particular struck me about Ms Ricketts’ most recent affidavit.  She deposed as follows:

    “Ms Crowe’s [Ms Crowe] alienation of the child from me seems to be complete.  However, [X] is very young and is a resilient child, and I am hopeful that the reason these allegations have be made, and who is behind it, will be made clear in the future, and that [X] and I may be able to re-establish the close bond we had during the first four and a half years of his life.”[8]

    [8]  See Ms Ricketts’ affidavit filed 6 June 2018 at [41]

28. This paragraph suggests, from Ms Ricketts’ point of view, the struggle for control of [X]’s heart and mind is far from over.  If [X] is returned to Ms Ricketts’ care or even if he spends modest time with her, I fear that she will attempt to influence the child against his maternal grandmother and siblings.  This is likely to take many forms, including the following:

    ·    Questioning [X] about Ms Crowe and what occurs in her household, in an attempt to gather negative information to be utilised in further court proceedings;

    ·    Making derogatory comments about Ms Crowe and her family (and so [X]’s family) to [X] himself;

    ·    The making of further allegations of abuse regarding [X], to whatever authority will entertain them.

1. I do not consider that any of these outcomes will be helpful to [X] or in his best interests.  In my view, the struggle between the two parties, for vindication in respect of care arrangements for [X], must be stopped.

2. I acknowledge that [X] is a vulnerable child, who lives in a community which is to be regarded as socially and financially deprived in many aspects.  In these circumstances, I am mindful of the famous fable of Aesop, The Boy Who Cried Wolf.  In this case, there have been many such cries of wolf, which no longer raise the alarm. 

3. For obvious reasons, I am apprehensive that there must always be the possibility that there is something arising from the inchoate complaints raised by Ms Ricketts.  However, this concern must be balanced against my greater concerns for the ongoing emotional integrity of [X].  In my view, greater risks arise for [X] from the perpetuation of this almost endless litigation between Ms Ricketts and Ms Crowe.

4. In any event, as I have indicated, it is the New South Wales Department of Families and Communities, which fundamentally bears the statutory responsibility for protecting children in this State.  It has been advised of Ms Ricketts’ concerns, on numerous occasions, but has elected not to take action. 

5. It would have been preferable, for [X], if the two women concerned had made some attempt to heal the rift between them and, in a spirit of reconciliation, tried to make the orders of Judge Kelly, regarding [X] spending regular time with Ms Ricketts work.

6. However, it is patently clear to me that such hopes are naïve and misplaced.   It falls to me to make the order which I consider will best serve [X]’s interests.  I am satisfied that there is no realistic possibility that the prolongation of Ms Ricketts’ application will result in any change in arrangements for [X]’s care.

7. In my assessment, the reasons which led Judge Kelly to make the orders which she did, controversial though they are, remain valid and in keeping with the evidence available both to Judge Kelly and to me.  In addition, with the effluxion of time, those reasons have become stronger rather than weaker.  In any event, Judge Kelly’s orders were not subject to appeal.

8. Finally, the detriments arising for [X] of prolonging the proceeding vastly outweigh the very small possibility that there will be a significant change in the current regime.  For these reasons, I have come to the conclusion that Ms Ricketts’ application should be dismissed together with any orders which authorise her to spend time with [X].

9. 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 three (103) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     4 July 2018

[3] See family report at [80]

[5]  See family report at [61, 62]

[6]  See family report at [54,55]

[7]  See family report at [81]