Simon Lara and Irma Lara & Tom Marley and Elizabeth Sharp - [2003] FamCA 1393

[2003] FamCA 1393

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT CAIRNS
(THURSDAY ISLAND CIRCUIT)

No TVF75 of 2003

IN THE MATTER OF

Simon Lara and Irma Lara

Applicants

and

Tom Marley and Elizabeth Sharp

Respondents

REASONS FOR JUDGMENT

Coram : The Honourable Chief Justice Nicholson

Date of Hearing : 20, 21, and 22 October 2003 at Thursday Island; and

24 October 2003 at Cairns

Date of Judgment : Friday 19 December 2003

Appearances :

Mr Fellows of Counsel instructed by Deanne Michelle Drummond of Farrellys of 23-27 McLeod Street Cairns Qld 4870 appeared on behalf of the applicants

Mr Curtain of Counsel instructed by Anna Rickard of Tharpuntoo, PO Box 6422 Cairns Qld 4870 appeared on behalf of the respondent

Mrs Willis of Counsel instructed by Patricia Cope of Lagois Magoffin Rose, 91-93 Grafton Street Cairns Qld 4870 appeared on behalf of the child representative

Catchwords: Residence and contact dispute between aunt and uncle of a three year old child and her parents - argument as to whether the child was living with the applicants on a temporary basis or was the subject of a Torres Strait islander traditional adoption - best interests test - child’s relationship with the applicants more suited to her remaining in their care - held not necessary to determine the status of the arrangement between the applicants and the respondents.

Legislation: Family Law Act sections 60, 65E, 65F(2).

INTRODUCTION

This is a residence and contact dispute concerning the child known for the purposes of this judgment as Alice, who was born on 16 January 2001 and is now nearly three years old.
The dispute is between the applicants and the natural parents of the child; Tom Marley and Elizabeth Sharp. The names of all parties have been changed to protect their identities, as have those of the principal witnesses in the case. Irma Lara is an older sister of Tom Marley, the natural father. Alice has lived with Simon and Irma Lara since she was approximately three months old. She did so with the consent of Tom Marley and Elizabeth Sharp, at least until the commencement of the year 2003.
With the exception of Simon Lara who is of English background, the remaining parties are all Torres Strait Islander people.
I shall refer to Simon Lara, and Irma Lara and Tom Marley and Elizabeth Sharp by their given names. This is in no sense intended to be patronising, but I do so as a matter of convenience in the particular circumstances of this case, because of the otherwise cumbersome nature of the references to the parties.
Simon and Irma have at all material times lived in D, apart from a short stay of eighteen months to two years in the town of M some seven years ago. Tom Marley and Elizabeth Sharp live in M.
The town of M is near the northern tip of Cape York. It is a town primarily occupied by Aboriginal people of the Australian mainland, but is also occupied by some Torres Strait Islanders. There are four other significant towns located within a short distance of M, namely B and S, largely inhabited by Torres Strait Islanders, and NM and U, largely inhabited by mainland Aboriginal people.
Apart from these other towns the town of M is comparatively isolated from the rest of Australia. There is an airport at B with some limited and expensive air services, and a daily ferry connection to TI, which connects by another ferry to HI, from which there is a regular (and comparatively expensive) air service to D operated by Qantas Link. The only other ways of travelling to D are by sea or by road. There is no regular sea link to D except a barge. Road travel can only be effectively done by four-wheel drive vehicle and the journey takes about fourteen hours. The road to D is virtually impassable during the wet season, usually from about January to April, but it can be longer.

I mention these geographical factors because they are relevant to this dispute.
Culturally, all of the parties to this dispute, except Simon Lara, are Torres Strait Islanders and follow Torres Strait Islander culture, which is another highly relevant factor to the present dispute.

THE ISSUES

The primary issue is as to whether Alice should reside with Simon and Irma Lara or Tom Marley and Elizabeth Sharp.
Subsidiary issues relate to whether one or other set of prospective parents should have long term as well as day to day responsibility for the care, welfare and development of Alice, and the degree of contact that should take place with the other parents.
Tom Marley and Elizabeth Sharp say that the primary issue is to be determined by the acceptance of their proposition that Alice was only given to Simon and Irma Lara upon a temporary basis as a “baby sit”, as they put it. They say that the arrangement was originally intended to operate until Alice’s first birthday, but that at the request of Irma they agreed to extend it for another year, but for no longer. They therefore say that the child should be returned to them as agreed.
On the other hand, Simon and Irma Lara say that they only took the child upon the basis that she was to be with them on a permanent basis and be brought up as their child. They say that they understood that what was taking place was a traditional Islander adoption, described as “Kupai Omasker”, that I will discuss subsequently. They say that upon this basis the primary issue should be determined in their favour.
However, I consider, as will appear, that it is unnecessary for me to determine the issue as to whether this was in fact a traditional Islander adoption, albeit that the genuine nature of Simon Lara and Irma Lara’s belief in this regard, (as distinct from the expressed belief of Tom Marley and Elizabeth Sharp), may have relevance in determining the child’s best interests.
In the final analysis however, that issue will be determined in accordance with the relevant issues as set out in Sections 43, 60B and 68F of the Family Law Act.

Further Background of the PartiES

Irma Lara

Irma Lara was born on P on 2 June 1959 and was the eldest of four children traditionally adopted by Mr MM and Mrs HM. The three younger children of the Ms adopted in this way were Ms HS (formerly M), Ms DM and Mr TM. He was born on the 22^nd of July 1979 and is thus some twenty years younger than Irma Lara.
It is important to note that pursuant to Islander custom all of these children are regarded, and regard themselves, as children of the Ms and as brother and sister, as the case may be.
Irma Lara met Simon Lara when she was about 18 and they were married on 1 August 1981. They have three biological children, Simon Junior now aged 22 who is married with children and lives in D, P now aged 21 who is partnered with children and living in M, and B aged 16 who is in year 12 and lives with them in D. Irma’s cultural background relates to Y and B islands in the Torres Strait and to the K People of the southern islands and of the Torres Strait, many of whom settled in M and S and B.
She has lived happily with her husband Simon Lara for over twenty years.
Prior to these proceedings she had a close bond with her brother Tom Marley, whom she had helped to care for when he was a very young child.
She is a serene and motherly woman who carries herself with considerable dignity and who impressed me with her attitude to the child.

Simon Lara

Simon Lara was born on 29 June 1961 in Leeds England and came to Australia in the early 1970’s. He has two sisters, both of whom live in D. J is intellectually disabled and lives with her mother. Simon is a hard working man who is currently employed as an excavator driver on a casual basis in D. He has considerable experience working as a truck driver for mining companies. He is currently considering moving to E in Queensland with Irma, B and Alice where there may be better employment prospects for him.
It appears that some seven years ago he was diagnosed with a mild case of schizophrenia. Since that time he has received regular treatment by way of injections every three weeks and has had no further problems. This was not an issue that loomed large in these proceedings, nor should it have done. I am satisfied that it does not operate in any way as a disqualification to Simon caring for Alice. Simon Lara impressed me as a man of few words, but as a person with a deep interest in the welfare of his wife and the child, Alice.

Tom Marley

Tom Marley is now 26 and has been the partner of Elizabeth Sharp for six to seven years. There are four children of that relationship, including Alice. Another child, E was born on 6 August 1994 and is now 9. She is not a natural child of the parties but was adopted by Elizabeth Sharp by way of traditional adoption shortly after her birth.
The remaining children are A, born 31 January 1997 and now nearly 7, R, born 23 May 1999 and now 4, Alice, and T, born 25 October 2002 and now 13 months. It is to be noted that Alice is the only girl.
Tom Marley has recently finished his apprenticeship as a carpenter and is employed in that capacity by the town of M. He is also the captain of the M Australian Rules Football Team. He has thus achieved much within his community. He has however, been not without his problems, as is subsequently discussed. He has had particular problems with alcohol and violence.
In late July 2000 he was charged with indecent dealing and carnal knowledge of a 12 year old girl in M; offences to which he later pleaded guilty. He was sentenced to 2 years imprisonment in the Cairns District Court on 25 May 2001, but the whole of the sentence was suspended.
Prior to and indeed after the time of the sentence he had a very close relationship with Simon Lara and Irma Lara, regarding Irma Lara as a close elder sister. That remained the situation until the parties fell out over Alice in early 2003.

ELIZABETH SHARP

Elizabeth Sharp was born on 14 August 1979 and is now 24. Throughout her relationship with Tom Marley until very recently she and he lived with her mother at M and her mother has had most of the day to day care of the three older children. Her mother, Ms DS is the second wife of her natural mother’s father. Elizabeth Sharp is unsure as to whether she was the subject of a traditional adoption, as her biological mother died when she was very young and she does not know the identity of her biological father. She however treats Mrs S as her mother and the latter treats her as a daughter. She has lived in the town of M all her life. She and Tom Marley moved into a new four-bedroom house in M in about April of this year.
She worked full time for the M Council until early this year. She now works part time for about twenty hours per week. She is also heavily involved in a number of community activities. Again she has considerable achievements to her credit.
Following the discovery by her of Tom’s relationship with a young girl then aged 12 against whom Tom Marley committed the offences in July 2000 she physically assaulted the girl in question. There was also evidence of other arguments and violent incidents between Tom and Elizabeth.
Nevertheless, it appears that she has undertaken the care and support of her children in an appropriate fashion while undertaking employment at the same time.

The Extended Family

Apart from those already discussed, Irma Lara and Tom Marley’s two sisters, DM and HS reside in M.
Although DM swore an affidavit in the proceedings, she was not required to attend for cross-examination. It is of interest to note that not only was she the subject of a traditional adoption by the Ms, but she herself has a child by way of traditional adoption that she has brought up as her own.
Tom Marley and Irma Lara’s other sister, HS played a major role in the proceedings. She strongly supported Irma’s position and disapproved of the attempt by Tom Marley and Elizabeth Sharp to recover the child. She lives at M with her husband and family and has lived there for eighteen years. She has ten children, about half of whom live with her at M, the remainder living in C. Until April/May 2003 Tom Marley and Elizabeth Sharp lived nearby with Elizabeth’s mother.
HS is strongly involved in the prevention of domestic violence and child protection in M and elsewhere, and co-ordinates a child activity centre for very young children. She is a highly intelligent woman with a deep regard for her people and their traditions.

Kupai Omasker (Traditional Adoption)

The concept of giving children runs deep in Torres Strait Islander culture and the practice is extremely widespread, as can be seen in this case where most of the participants have been traditionally adopted.
The western concept of adoption does not fully cover this practice, which has a spiritual or cultural relevance that is not relevant in western adoptions.
The practice has been given no legal recognition under Australian law, which is of great concern to Torres Strait Islanders and carries with it practical difficulties in relation to inheritance, proof of identity and the need for children to obtain parental consent to certain activities and decisions. In recent years, following discussions between Torres Strait Islanders and Elders and representatives of the Court, the Family Court of Australia has facilitated the making of residence orders and orders conferring sole parental responsibility upon the couple or person receiving the child pursuant to these traditional arrangements, and I have issued Practice Directions to assist this process.
A residence order does not amount to an adoption order, and can of course be subsequently revoked or varied in appropriate cases. It does, however, have the advantage of recording such arrangements and obviating some of the practical difficulties involved in non recognition of the practice by conferring parental responsibility upon the receiving parents.
The court has now made some hundreds of such orders. Features are that they are made with the consent of all relevant parties that can be ascertained; before such orders are made a report is prepared by a Court Counsellor with the assistance of an indigenous Court family consultant; and the Judge hearing the matter normally sits with one or more Elders as assessors to ensure that what is being recognised is a traditional adoption.
Importantly it is not the Court, but the parties and the community that determine that a traditional adoption has taken place. As I see it, the Court’s role is simply to recognise that fact and make orders accordingly in the best interests of the child or the children concerned.
In the present case it is sought to be argued that the Court should itself determine whether the arrangement to hand over Alice was a traditional adoption to which effect should be given.
I consider that it is not the Court’s role to make that decision. I note that Buckley J took a similar view in the case of Kitchell Zitha Bon (unreported TV 2198 of 1997 Delivered 4 September 2001) where he said:
As I indicated on a number of occasions during the course of the trial, in my view it would be entirely inappropriate for a Judge in the particular circumstances of this case to make a finding as to whether or not a traditional adoption has taken place. The issue is an extremely complex one and the varying practices and nuances that apply are such that it would more appropriately be a matter for the relevant elders to determine.

I respectfully agree with his Honour’s view.
An understanding of Torres Strait Islander custom, and particularly the practice of Kupai Omasker, is nevertheless relevant to the determination of this case and in assessing the actions of the people involved. In particular, it explains why the giving of a child by his/her biological parents to another couple is much more acceptable in a Torres Strait Islander context than it would be in the wider community.
In the present case I heard evidence from three experts. These were Mr Richard Pui Bann, an Elder from I Island and, Mr Richard Aken, an Elder of the Kaurareg People of the southern part of the southern Torres Strait traditionally known as Kaiwalagal, and a Court appointed expert, Mr Ephraim Bani.
Each are distinguished experts and their evidence was of great assistance. The evidence of Mr Bann and Mr Aken was called because of their particular association with the people involved in these proceedings from their respective areas. I also arranged for Mr Bani to give evidence because of his overall expertise in the area, he having previously sat with me as an assessor on several occasions when I was dealing with Kupai Omasker applications.
Mr Bann said that in relation to the Islander community, the handing over by a biological parent is a permanent arrangement. The child so adopted is not meant to know the identity of his or her natural parents until he or she is 21. At that time the child can acknowledge the biological parents as his/her parents or continue to acknowledge them as uncles, aunts etc.
Following adoption the natural parents have nothing to do with the child as parents, and the accepting parents become the child’s real parents in every sense.
He said that when the child is “given” pursuant to a traditional adoption, it is usually to members of the extended family of the givers. This enables the maintenance of blood connections. He said that when a woman is single the decision to give a child is hers and not that of the father, but that this is not the case if the couple are living together as husband and wife, when it becomes a joint decision. He said that de facto relationships are now given greater recognition in this regard than would have been the case in the past.
He said that when a promise is made to give a child it is binding. If a dispute arises, the M Islander Council will become involved and will endeavour to help the parties reach agreement. In earlier times he said that this role would have been undertaken by the Elders of the particular Islander community.
He also said that culturally, a caretaker arrangement for children could be undertaken that was not a traditional adoption. This was usually done when the biological parents were having particular difficulties and needed some assistance for a time.
He said that if such an arrangement continued for a long time, the child would have a choice as to with which he/she wished to live, but that the biological parents would be recognised as the child’s real parents. He said that in such circumstances the biological parents would usually meet the cost of care for the child.
Mr Aken is the Chairman of the Cape York Corporation and the Belkanu Cape Development Corporation. Both of these organisations are heavily involved in advancing the economic development of indigenous people in the Cape York region.
Mr Aken’s traditional background is of the Kaurareg People. He has presented papers in Geneva and Argentina to international conferences on cultural diversity, and is a recognised expert on his people’s culture. He is an Elder of the Kaurareg People and is authorised to speak on behalf of the Council of Elders.
He said that Kerrnge law binds the Kaurareg People. When a couple cannot look after their own child, it is not unusual for them to give the child to extended family members. At that point inheritance rights stop and the obligation transfers to the new parents.
However, there is a complex system of regaining inheritance through the next generation, which is not relevant to the issues in this case, but appears to differ from the arrangements recognised by the M people.
He said that traditionally those contemplating a traditional adoption would do so by arrangement through the Council of Elders, but they did not always do so. Like Mr Bann, he agreed that culturally it was possible to have arrangements for the long term care of a child that did not amount to traditional adoption.
He said that in such circumstances the child would know who their biological parents were and would retain respect for them as parents. He said that he himself had been brought up pursuant to such an arrangement. He said that among his people when a child was born to unmarried persons, the sex of the child would determine who took the decision to give the child, in the case of a boy the father and in the case of a girl, the mother.

He said that once a traditional adoption was completed, the customary practice was that the giving parent would step aside and would have little contact with the child that had been given.
He also spoke of the importance of the kinship system, with younger siblings paying respect to older ones, and of the difficulty of the younger sibling refusing a request from an older one.
It can be seen from the above account that there are subtle differences between different areas of the Torres Strait and different peoples in relation to this practice. This was confirmed by Mr Bani, who gave general evidence as to the practice throughout the Torres Strait, and pointed out that there were significant differences between Meriam culture in the east and the culture in the Western Islands. Mr Bani said that so far as works of scholarship were concerned relating to Torres Strait culture, the 1897 scientific party from Cambridge University headed by Dr A Haddon remained the most significant scientific source of historical information. [1] He also confirmed that, apart from traditional adoption, arrangements were frequently made for temporary custodianship of children, which were not subject to any particular rules beyond mutual agreement.

THE NATURE OF THE ARRANGEMENT BETWEEN THE PARTIES RELATING TO THE CARE OF THE CHILD

[1] Reports of the Cambridge Anthropological Expedition to Torres Straits; Cambridge University Press 1904 Volume V at 151-2

It is important to note that the original arrangements took place in the context of Tom Marley awaiting the hearing of serious criminal charges. There was obviously a real chance that he might go to prison for a substantial period.
It is also relevant to note that the biological mother, Elizabeth Sharp, was already responsible for the care of three young children and was working.
Given the Islander tradition of caring for and sharing children, the scene was obviously set for some kind of caring arrangement to ensue. The close nature of the relationship between the parties, and particularly Irma Lara and Tom Marley, is also relevant to this issue. The difficulty lies in determining what the arrangement was. Probably also relevant is the respect paid by younger to elder siblings, although in this case I do not find, for reasons that will appear subsequently, that this has any particular relevance to this case.

The Evidence of Irma Lara and Simon Lara

Irma Lara’s version of events is that before Alice was born, Tom Marley asked her if she would “grow up” the baby. She said that this request was made in D at her home when Tom Marley and Elizabeth Sharp were staying there. She asked Tom if he was really sure and he said that he was. He told her in effect that there was more to offer in D than in M and that he would like her to raise the child. She agreed to do so, although she had not had an opportunity to discuss the matter with her husband. She said that Tom told her that he and Elizabeth would take the baby back to M to show her to Elizabeth’s mother and would then bring her back to C. Although she always proceeded subsequently on the basis that Elizabeth Sharp was aware of and had agreed to this arrangement, she said that the arrangement was made with Tom.
Simon Lara agreed that he became aware that his wife had such a conversation prior to Alice’s birth when she consulted him about whether he would be agreeable to take Alice on a permanent basis.
He said that he subsequently had a discussion with Tom Marley following Alice’s birth. He asked Tom if having Alice was for good, because he did not want to have her if she was to be taken back. He said that Tom confirmed that this was so. He said that this conversation took place outside his house in C, but was also repeated inside when his son’s girlfriend was within earshot. He said that Tom Marley had again confirmed the arrangement during another conversation when he came down for the criminal trial in May 2001 and stayed with Simon and Irma Lara. He was challenged in cross-examination about this evidence and it was suggested that Tom Marley never indicated that the care arrangement was permanent. His answer was an emphatic “Well he did”.
In answer to Mrs Willis of Counsel for the child representative, he said that he was initially a bit surprised that Irma had not asked him before agreeing to Tom’s original request that they take Alice. He knew that she had always wanted another child, but thought that this was a big decision to make. He said that this was why he took the matter up with Tom as to whether the arrangement was a permanent one. He assumed that what was proposed was a traditional adoption. He did not himself speak to Elizabeth Sharp about the arrangements and could not recall whether his wife had done so.
He was adamant that no favours were owed by Irma or himself to Tom, nor that they were doing a favour to Tom and Elizabeth on a temporary basis to assist them. He said that they might have been prepared to do this for a few months, had Tom and Elizabeth been in difficulty, but not upon the basis suggested by them.

The evidence of Elizabeth Sharp and Tom Marley

In her affidavit sworn 28 April 2003 in relation to interim proceedings, Elizabeth Sharp strongly denied that the arrangement in relation to Alice was a traditional adoption or a permanent arrangement, describing it instead as a long term "baby sit”.
Tom said that Elizabeth had initially made arrangements for, a woman who lives at I, to care for Alice for about the first twelve months following the cessation of Elizabeth’s maternity leave.
Elizabeth explained that this would have been a paid arrangement and that she would collect Alice each night and deliver her to Ms ED each morning during periods that she was working. She said that her mother normally looked after the older children during such periods, but that a baby would have been too much for her.
According to her, the arrangement with Ms ED was made at about the same time as Tom made the arrangement with Irma Lara, ie in M some three months after Alice ’s birth.
However, Ms ED swore that it was made before Elizabeth went to D for the birth. She said that she was not told of any changed arrangement until Elizabeth came back to D without Alice in about April 2001.
Elizabeth’s version and that of Tom was that in about March 2001, when Alice was about two to three months old, Simon and Irma Lara came to M. She understood from Tom that he had told Irma that they were looking for a baby sitter and asked her if she would like to do it, and she had agreed. According to Elizabeth and Tom, this conversation took place between Irma Lara and himself near the back gate of their house, with Elizabeth sitting some thirty metres away.
In her original affidavit sworn 28 April 2003 Elizabeth Sharp said,
“8We did ask Irma, to help us look after Alice when she was about three months old. It was not an easy decision. It was one of the hardest decisions we have ever had to make.
9.We were going through a really difficult time. I believe that everyone, at least once in their lives, go through difficult times and need help. And this was one of those times. We did need help.
10.In our culture sharing the care of children happens all the time. People are there to help. We are grateful to Irma and Simon Lara and we are thankful for what they have done for us.
11.But we did everything we could too, to be there for Alice. We are not strangers to Alice, and have had contact with her many times .
12.When we asked for help, we asked Irma to baby-sit Alice until she was one year old.
13.After the year was up, we were ready to look after Alice .
14.But Irma Lara asked us if she could keep Alice for another year. We felt like we owed Irma and Simon and we ended up saying yes because we felt obligated and sorry for Irma .
15.There was never any decision made for Alice to live with Irma and Simon as their adopted daughter. We did not give Alice to them to grow her up.”
Elsewhere in this affidavit Elizabeth Sharp said that Tom Marley did not mention to Irma how long the arrangement would be for when he raised it with her. However, she said that she and Tom then discussed the matter between themselves and confirmed that it would end on Alice’s first birthday. She said that this was not mentioned to Simon and Irma Lara until she took Alice to D when she told them this.
Tom Marley’s affidavit of the same day largely confirmed what Elizabeth Sharp had said, but contained the following somewhat curious passage:
“19.I remember one time when Simon Lara was saying,
“Once you give Alice to me it is for good, you can’t have her back,” I just laughed and said yeh, not even really listening to him, because the arrangement was made with Irma not him, and Irma understood the agreement. I don’t understand why she is going along with this now.”
During the course of cross-examination, the evidence of Simon Lara about a permanent arrangement to which I have referred was put to Tom Marley. He initially strongly denied that there had ever been any such conversation with Simon Lara. Paragraph 19 of the affidavit was then put to him and he conceded that Simon Lara had said the words in questions, but said that he had taken it as a joke.
His evidence was most unsatisfactory on this issue, and I formed the view that in first giving it he had forgotten the contents of his affidavit and was prepared to make a complete denial. I also conclude that the account in the affidavit was nothing more than a false attempt to explain away Simon Lara’sevidence.
In oral evidence, Tom Marley denied that jail was a consideration in relation to the arrangement with Alice and said that he had been confident that he would not be imprisoned.
He said that he and Elizabeth could easily have had ED look after Alice but he wanted to give her to his sister to look after her. He said that he was thinking of a couple of months when he mentioned it because he knew she loved kids and could care for kids really well.
When asked about Elizabeth’s reference to going through a difficult time in her affidavit of 28 April, he thought that she must have been talking about financial matters.
He denied having talked about “growing up” the child and said that he always used the words “baby sit”. He said that Irma wanted a baby to keep her occupied.
Elizabeth Sharp during the course of her oral evidence, despite the contents of the affidavit to which I have referred, denied that there was any problem with her relationship with Tom Marley or that they had any problems when Alicewas born. She admitted that she had smashed Tom Marley’s car windows, but said that she had later forgiven him over the incident that led to the laying of the criminal charges.
During the course of cross-examination Mrs Willis asked her why it was necessary to change the arrangement with ED. Mrs Willis pointed out to her that this would have meant that she would have had the child living with her and her siblings. Her response was, “Tom always trusted his sister in growing up a child.” She later used the expression, “growing up” on several occasions as referable to the arrangement with Irma and Simon Lara .

Other Direct Evidence Concerning the Arrangement

Evidence of H S

H is the sister of Irma and Tom Marley and lives at the town of M, very close to a house occupied by ES’s mother. Tom and Elizabeth lived there at all material times until about April 2003, when they obtained other housing.
H has ten children of her own and said that prior to the events relating to Alice she and her children had been very close to Tom. Since that time they have been seriously estranged.
She said that shortly after Alice was born, Tom informed her in a conversation that was held in M that he and Elizabeth were going to give Alice to Irma to “grow her up.” She said that in Islander custom, she took this to mean that the child would become Irmas baby to look after until adulthood. She said that when told of this by Tom she was disappointed because she had been involved in looking after the children in the past and had helped him to raise them and was hoping to do so with Alice. She accordingly asked Tom Marley if he was sure about what he was doing and he said that he was. She said that at that time Tom was worried that he would go to jail. She said that he was always more involved in caring for the children than Elizabeth Sharp and that if he went to jail then he was concerned about their care, and particularly about the care of a baby.
She said that she came to Cairns for the trial in May and she said that Tom Marley there confirmed to Simon Lara in her presence that he would not seek to take Alice back now that she had come to live with he and Irma Lara. She said that at no time was the word “baby sitting” mentioned either then or previously.
She said that when Tom Marley and Elizabeth Sharp retained the child in 2003, she went to see them and she became very angry and told them that she heard the above conversation between Tom Marley and Simon Lara and that they were acting wrongly. She said that they simply reiterated that they were not going to return Alice and gave no real justification for their position.
I was impressed with Mrs S’s evidence. She obviously had a great fondness for her brother, but was not prepared to tell other than the truth as she saw it. I found her to be forthright, honest and a witness of truth.

The Evidence of SW

SW was the fiancee of Simon Lara’s adult son. In her affidavit she gave evidence that she was present at the house prior to Alice being born when Simon Lara and Tom and Elizabeth . She said that Tom indicated that he wanted Irma to “grow up” the baby and Simon indicated that he and Irma were going to take the baby, “but it was forever or not at all,” and that they could not come back and take her back She said Tom reiterated that it was for good. She recalled another occasion where a similar conversation took place and she said that at the time Elizabeth gave Alice to Simon and Irma Lara , Simon said to Elizabeth that ‘she is here forever, you can’t take her back or change your mind’, and Elizabeth said ‘yes I know’.
While SW did not recant from this evidence during the course of cross-examination, she displayed a very vague memory as to the events that had taken place and was able to recall little or nothing of them. In the circumstances, if her evidence stood alone, it would be of little value. However it is consistent with the evidence of Simon Lara and Mrs S.

Evidence of Subsequent Events In Relation to Alice

It was common ground that Alice remained with Simon and Irma Lara until the start of 2003. They both strongly denied that there was any arrangement to return Alice either after her first or second birthday, and denied that any conversations to this effect had ever taken place.
The evidence was overwhelming that during this period Irma Lara had been the principal carer for Alice and that Alice was effectively brought up as Simon and Irma Lara’s daughter, and treated as such. There was no regular financial support offered or given by Tom Marley and Elizabeth Sharp, who merely paid board of $100 per week as they usually did when staying with Simon and Irma.
It is true that there was a frequency of contact during this period between Tom Marley and Elizabeth Sharp and the child. However, I am satisfied that this was not contact in the sense used in the Family Law Act, but rather reflected the fact of the close relationship between the two couples, which meant that when Tom Marley and Elizabeth Sharp came to D, they usually stayed with Simon Lara and Irma Lara. I am not satisfied that the purpose of their visits to D was necessarily to see Alice, but rather, related to other purposes.
The evidence is also clear that during such visits Irma Lara and not Elizabeth Sharp performed the mothering role, although Tom Marley did take an active interest in the child during such visits and did play with her appropriately, as he did with all of the children.
It appears that in June/July 2001 Irma Lara, her daughter B, and Alice visited M and stayed for about a week. Other visits by Tom Marley and Elizabeth Sharp to D occurred in September and October and again over Christmas 2001 to January 2002. On 16 January 2002 there was a first birthday party held for Alice, which was largely organised by Irma Lara at her home. It was at about this time that Elizabeth Sharp and Tom Marley asserted that it had been their intention to return to M with Alice and Irma Lara had asked, “Can I keep her for just one more year?” to which they agreed. Simon Lara and Irma Lara denied this.
Other visits occurred in 2002, including one where Irma Lara travelled to M with her daughter B, and Alice and stayed with Tom Marley and Elizabeth Sharp at the home of Elizabeth Sharp’s mother. It is common ground that this visit was partly financed by Elizabeth Sharp’s mother on the basis that she wanted to see Alice.
The child, T was born to Elizabeth Sharp on 25 October 2002 and she and Tom Marley visited D and stayed with Irma Lara and Simon Lara before the birth.
During November-December 2002, Irma Lara went to B for a tombstone opening and stayed with HS. Elizabeth Sharp says that she asked if Alice could stay on over the New Year period during this visit, but Simon Lara and Irma Lara did not permit this. Simon Lara commented that he was concerned that Alice would fret if separated from them.
According to Tom Marley, he telephoned Irma Lara and Simon Lara on 29 December 2002 and said that it was time for the return of Alice. This call took place following the parties return with Alice to D.
On 1 January 2003 Tom Marley, according to Irma Lara and Simon Lara, apologised and said that Alice could stay with them, but on 8 January, Elizabeth Sharp requested contact with Alice and complained that the arrangement was not fair.
In mid January 2003, Simon Lara took Alice to the town of M for a visit with Elizabeth Sharp and Tom Marley for the purpose of sorting things out.
Prior to doing so he had consulted the Family Court in Cairns and had obtained relevant papers in connection with a Kupai Omasker adoption. He asked Elizabeth Sharp and Tom Marley to sign the relevant papers, but they refused and they then refused to return Alice to Simon Lara .
Simon Lara returned to D without Alice on 1 February 2003 and thereafter Irma Lara and Simon Lara commenced proceedings in the Family Court for the return of the child.
These proceedings were transferred to the Federal Magistrates’ Court on 17 February 2003, at which time interim orders were made that Alice should reside with Irma Lara and Simon Lara and ordering her return.
The Federal Magistrate made orders that there should be contact between Alice and Tom Marley and Elizabeth Sharp for four nights and five days of each calendar month, together with such other arrangements which might be agreed between the parties .

Other Material Evidence in Relation to the Arrangement

When Elizabeth Sharp came to D with Alice when she was 11 weeks old, she went to the offices of Centrelink with Simon and Irma Lara and changed the Centrelink payment into Irma’s name. They also went to Medicare together and Simon and Irma Lara’s name was put on Alice’s Medicare card. They asked Medicare if they could put the name of the applicants on the card, but Medicare said that they could not do that. According to Simon Lara and Irma Lara they discussed changing Alice’s name with Elizabeth Sharp who said words to the effect, “I don’t care, its up to you.”
Irma Lara said that during their visit to D in September/October 2002, she asked Tom Marley and Elizabeth Sharp whether they could formally adopt Alice. She said that Tom Marley and Elizabeth Sharp were leaving at that time and did not answer her question.
I have no difficulty in accepting Simon and Irma Lara’s version of these events.

Counsels’ Submissions on the Arrangements Between the PartiES

Mrs Willis for the child representative pointed out that there could obviously be other arrangements than traditional adoptions. She said that some aspects of this case looked like a traditional adoption and in particular the conduct of the parties after the arrangement was made.
She pointed to the fact that the mother, Elizabeth Sharp, did not ever resume the role of the primary parent, and there was even evidence that she asked permission of Irma Lara to take the baby out.
She submitted that I did not need to determine that there had been a traditional adoption, which she said was not necessarily relevant to a proper consideration of the factors under Section 68F of The Family Law Act.
She said that on any view there was an agreement to hand the child over to Simon Lara and Irma Lara and she submitted that it was unlikely that this related to a particular period of time.
She commented upon the conflicting evidence and said that it was of some note that Elizabeth Sharp was not present when the relevant arrangements were made. She said that it may therefore be that she had little input and that she was sad about what had been done.
She said that it was clear that Simon Lara was trying to nail down the agreement. She said that the evidence of HS was very clear and that there was no question that she heard Simon Lara raise the issue of the permanency of the arrangement, and that there was no question that Tom Marley confirmed it.
Mr Fellows, for Simon and Irma Lara, agreed that the issue was not necessarily determined by whether or not there had been a traditional adoption. He submitted that as to the agreement, the Court should prefer the evidence of Simon Lara and Irma Lara to that of Tom Marley and Elizabeth Sharp. He said that there was no motive for Simon and Irma Lara to have behaved as they had done other than out of care and concern for Alice .
He said that on the evidence of Tom Marley and Elizabeth Sharp, sending Alice to D for mere baby-sitting was inexplicable. He said that both had asserted that their household was normal and that there was no family crisis. He pointed out that they had assistance from Elizabeth Sharp’s mother, that Tom Marley was home some three times per day and that they had arranged a baby sitting arrangement anyway.
He said that I should conclude that it was in fact a gift of love that caused them to send Alice to D and that it mattered not whether it was long-term care or traditional adoption.
He referred to Elizabeth Sharp’s reference to “growing up” and he also referred to the fact that Tom Marley, even on his view, had put no time limit on the arrangement.
He also pointed out that there was an important conflict as to when the relevant conversation took place. He said that the evidence suggested that Irma Lara was not present in M at the time that Tom Marley claimed that she was when the conversation took place, because this was in the wet season and there was no reason for her to be there. He said that the fact of a conversation taking place prior to Alice’s birth was very much consistent with a traditional adoption and very much more probable.
Mr Curtain, for Tom Marley and Elizabeth Sharp, submitted that there were aspects of the evidence that indicated that his clients were looking for something different to a traditional adoption. He said that the arrangement made with ED indicated a baby sitting arrangement.
He said that there was an enormous amount of love for Alice shown on both sides. He said that the word ‘baby sitting’ was indicative of a short-term relationship, and the evidence suggested that this sort of relationship can exist in this society.
He pointed to the evidence of Mr Aken in this regard, and he said that there was nothing inconsistent about the primary care giver of the child performing the mothering role because it was her house and she was caring for Alice.
He said that the frequency of visits between the parties suggested something more than mere casual visits but rather suggested the maintenance of the parent/child relationship. He said that the arrangements may well have reflected significant financial pressures and it may be that Tom Marley and Elizabeth Sharp understated their problems in the course of their evidence.

FINDINGS

In this matter I have no difficulty in accepting the evidence of Irma Lara and Simon Lara as to what occurred, and indeed as to any matter in which their evidence is in conflict with that of Tom Marley and Elizabeth Sharp. I find the latter’s version of events improbable, both as to where the conversation took place and as to its content.
It is important to remember that all of these parties, including Simon Lara, were very familiar with the practice of traditional adoption as occurring amongst Torres Strait Islanders. Many of them had been the subject of such traditional adoptions and had participated in them.
While I do not consider it necessary for me to determine whether or not this was a traditional adoption for the reasons already stated, I think it more probable than not that all of the parties considered that this was what was intended.
Elizabeth Sharp and Tom Marley had recently had considerable problems with their relationship arising out of Tom’s behaviour with an under aged girl that lead to the criminal charges. The depth of Elizabeth’s hurt can be gauged by the fact that she physically attacked the girl in question and vandalised Tom’s car.
She already had three children of her own and discovered that she was pregnant with Alice.
There was evidence before me of considerable economic difficulty that faced the couple.
There is also evidence, which I accept, of a history of violence between them.
Tom Marley, despite his claims, faced the real possibility of being sentenced to a substantial term in prison.
If all had been as satisfactory as he and Elizabeth Sharp claim, then there was no reason why they would not have proceeded with the arrangement with Ms ED.
The fact is that Tom Marley had an elder sister of whom he was fond and who was, on his own evidence, highly experienced at bringing up children. Given the pressures on the couple at that time it seems to me almost inevitable that they agreed to a traditional adoption arrangement.
I also agree with the submission of Mr Fellows that it is difficult to see any other motivation for Simon Lara and Irma Lara behaving as they did. The evidence of Irma pleading for just another year with Alice seems to me to be incredible. If she had thought the arrangement was a temporary one I have little doubt that she would have been perfectly happy to return Alice on the first birthday. I cannot imagine why she would have sought an extension in circumstances where she would have known that this would have only meant that the child would have become more attached to her and Simon Lara, and thus make it more difficult for herself and the child to eventually part after another year had passed. Such an approach does not, in my view, fit with the character of either Simon or Irma Lara.
Leaving aside the surrounding circumstances, I should also say that I was impressed with the evidence of both Simon Lara and Irma Lara. They gave their evidence clearly and consistently and gave me no reason to doubt anything that they said.
On the other hand, I regarded the evidence of Tom Marley and Elizabeth Sharp as extremely doubtful. At one stage I was forced to remind Tom Marley that he was on oath and of the consequences of failing to tell the truth. This arose in circumstances where I considered that it was highly unlikely that he was telling the truth, or even attempting to do so, about the matter then in question.
Elizabeth Sharp seemed to be almost giving evidence in accordance with a script.
If I had had any doubt about which version to accept, which I do not, then the evidence of HS puts the matter beyond question. She was a forthright and clear witness who was obviously giving evidence reluctantly and who obviously retained a deep love for her brother. I found Tom Marley’s attempt to explain away her evidence as supporting my general view as to his lack of credibility.
However, of itself, this finding does not end the matter.
If I had thought that Tom Marley and Elizabeth Sharp’s version of the arrangement was correct, that might have provided a strong argument for ordering the return of the child, subject to being otherwise satisfied that this was in her best interests. Such a finding would obviously have reflected badly upon the motivation of Simon Lara and Irma Lara and their approach to parenting. Also, the return of a child looked after on a temporary basis pursuant to that sort of arrangement would seem consistent with Torres Strait Islander culture.
However my acceptance of Simon Lara and Irma Lara’s version does not end the matter, because there are other relevant factors such as the separation of the child from her biological parents and her siblings and other matters.

The Law to be Applied

It is now my task to determine the issue as to where the best interests of this child lie in relation to with whom she should reside, and having done so to determine appropriate contact arrangements between the parties.
In determining applications of this nature, regard must be had to the provisions of Part VII of the Act, including the objects of that Part (s.60B(1)):

‘The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.’

and the principles underlying them (s.60B(2)):
‘The principles underlying these objects are that, except when it is or would be contrary to the child’s best interests:

(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and

(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents should agree about the future parenting of their children.’

Subject to any Orders of this Court, each of the parents of a child has parental responsibility for that child (s61C).

Should parties be unable to agree about matters touching upon the welfare of a child and seek Orders from the Court in relation to that child, the Court must, in determining whether it should make Orders or in determining what Orders should be made, regard the best interests of the child as the paramount consideration (s65E).

Under the provisions of s68F, in determining what is in the best interests of the child, the Court must consider the following matters so far as they might be relevant in each particular case:

‘(a)any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes ;

(b) the nature of the relationship of the child with each of the child’s
parents and with other persons;

(c)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents: or
(ii)any other child, or other person, with whom he or she has been living;

(d) the practical difficulty and expense of a child having contact with a
parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(e)the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;

(f) the child’s maturity, sex and background (including any need to
maintain a connection with the lifestyle, culture and traditions of
Aboriginal peoples or Torres Strait Islanders) and any other

characteristics of the child that the court thinks are relevant;

(g) the need to protect the child from physical or psychological harm
caused, or that may be caused, by:
(i)being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or

(ii)     being directly or indirectly exposed to abuse, ill-treatment,
  violence or other behaviour that is directed towards, or may
  affect, another person;

(h) the attitude to the child, and to the responsibilities of parenthood,
demonstrated by each of the child’s parents;

(i)any family violence involving the child or a member of the child’s family;

(j) any family violence order that applies to the child or a member of the
child’s family;

(k)     whether it would be preferable to make the order that would be least
                  likely to lead to the institution of further proceedings in relation to the
                  child;

(l)any other fact or circumstance that the court thinks is relevant.’

It is important to note that there is no presumption in favour of biological parents in proceedings under the Family Law Act.

In the quite different case of Re Evelyn (1998) FLC 92-807, the Full Court said (at 85,104):

“In Rice and Miller (1994) FLC 92-415 the Full Court adopted the reasoning of Lindenmayer J in Re Hodak; Newman; Hodak; (1993) FLC 92-421 that while the fact of parenthood is an important and significant factor in considering which of the proposals best advance a child’s welfare, the fact of parenthood does not establish a presumption in favour of a natural parent nor generate a preferential position in favour of that parent from which the Court commences the decision making process.
Their Honours stressed that each case must be decided on its own particular facts with the welfare, (now best interests) of the child being the paramount consideration. (80,240).”

Evidence Relating to Parenting IssuES

Report on Evidence of Ms Marilyn Venus

Ms Venus, who is a mediator employed by the Court in Cairns, prepared a report dated 10 October 2003.
She did so after interviewing Elizabeth Sharp and Tom Marley at their home in I, Irma Lara and Simon Lara at their home in D, Irma Lara, Simon Lara and B at their home in D, and Elizabeth Sharp and Tom Marley and the children E, A, R, Alice and T at D.
In her report Ms Venus avoided addressing cultural issues and instead primarily considered the needs and attachments of Alice, and the likely impact upon her of any change of residence.
She noted that following the interim order of Federal Magistrate Coker on 26 February there had been three occasions of contact between Tom Marley, Elizabeth Sharp and Alice since the order was made, these being in April, May and September. She noted that according to Tom Marley and Elizabeth Sharp, further visits were not possible due to financial constraints.
In relation to her interview with Simon and Irma Lara, Ms Venus noted that they were pleasant and courteous but appeared confused and upset over the dispute and anxious for it to be brought to a conclusion.
She recorded the version of events surrounding Alice’s residence that I have already set out. She noted that they agreed that there were a number of visits between the two households but that these were for a variety of purposes unrelated to Alice’s relationship with Tom Marley and Elizabeth Sharp.
However Irma Lara agreed that Elizabeth Sharp would telephone from time to time and talk about Alice.
Simon and Irma Lara told her that the first they had heard of any plan to take Alice back was when Tom Marley telephoned on New Year’s Eve 2002. She said that Simon admitted that he became very angry and upset and he told her that Tom phoned back on New Year’s day and apologised remarking, “Alice is your girl now. Sorry to upset you.”
Ms Venus recorded a further conversation as recounted by Simon Lara, to the effect that when he telephoned Elizabeth Sharp following an earlier complaint by her that it wasn’t fair that Alice was not able to come to M. She told him that she still wanted them to “grow up Alice” but that she wanted her to spend school holidays with herself and Tom in M. Simon Lara said that such a proposal had never been discussed before.
He said that he took Alice with him to M several weeks later in an attempt to sort the matter out but was unsuccessful, and indeed his effort resulted in Tom Marley and Elizabeth Sharp keeping the child for a further five weeks. This was due to Simon Lara and Irma Lara’s lack of legal status in relation to Alice.
Simon Lara and Irma Lara said to Ms Venus that they thought that it would be in Alice’s best interests to continue to reside with them as she had been in their care for almost all of her two and a half years. She said that they claimed to have a very close relationship and to separate her from them at this point would be extremely distressful for all.
She noted that they were able to acknowledge the value of Alice maintaining a relationship with her natural parents and siblings, as well as maintaining links to her country and culture through regular visitation.
To this end they proposed that should their residence application be successful they would take Alice to M for purposes of contact once per year at their expense for a period of two weeks, probably during the June/July school holidays. In addition, they suggested that Tom Marley and Elizabeth Sharp could visit Alice during other school holiday periods at their own expense with similar arrangements.
They also noted that when Alice turns eight years she would be able to fly unaccompanied to M for alternate school holidays, or if they were driving up themselves they would take her with them.
Ms Venus noted when she interviewed Tom Marley and Elizabeth Sharp that they presented in a cooperative low key manner and appeared keen to finalise the dispute with as little anger as possible.
They gave their version of the events surrounding Alice’s residence to Ms Venus. They indicated to Ms Venus that they believed Alice had a good well-established relationship with them and with her siblings, and that she would have no difficulty in adjusting to family life with them. They also believed that it was important for her to know her country and her culture, and that in M she would have access to many extended family members and could participate regularly in cultural events in the community.
They indicated their willingness to assist contact to take place between Alice and Simon and Irma Lara if she was to live with them.

So far as Alice was concerned, Ms Venus noted that she was an engaging dark haired, robustly built child, with a bright confident manner. Irma Lara told her that she liked physical activity such as swimming, playing on swings and going fishing and crabbing but also enjoyed other activities.
Ms Venus observed that Alice’s speech and behaviour were at appropriate levels for her age. Significant aspects of her demeanour that she noted were her self assurance and social competence, ie her willingness to relate to others, both children and adults, which indicated to Ms Venus a security of attachment to her primary care givers.
She also noted that Simon and Irma Lara’s claim that Alice was a much-loved child closely bonded with them was supported during her observations.
She observed that Alice was very relaxed, comfortable and confident in their presence, and demonstrated an active curiosity in relation to the visitors. She was playful and talkative and initiated close physical contact with both of them. Overall Ms Venus concluded that it appeared from observations that Alice has formed strong attachments to both of her primary care givers and to her cousin (B) during the two and a half years in which she has resided with them, and that she has a secure position within that family.

So far as the child’s relationship with Tom Marley and Elizabeth Sharp and the siblings was concerned, they told her that Alice was really good with them and knew and was comfortable with all family members.
Elizabeth Sharp said that Alice would not leave Tom alone when they were in D for the first Court ordered visitation, constantly demanding his attention and calling “Daddy, Daddy”. She said that she thought it would have been preferable to have observed the family in their home setting rather than on the Esplanade at D, but that this was not possible due to logistics.
She noted that Alice was happy and excited as she began to play with her siblings on the foreshore and that the play was active and energetic. She said that she interacted easily with the other children. She also related affectionately to Tom Marley, at one point taking his hand and encouraging him to come with her and at another playfully joining in as the other children piled on top of him on the grass.
She also related well to Elizabeth Sharp, enjoying a physical game with her, which involved being swung around by the arms.
Ms Venus thought that overall it appeared Alice enjoyed the company of the family and related to easily to Tom Marley and Elizabeth Sharp and the other children. She said that the actual strength and significance of Alice’s attachment to the family was difficult to determine due to the limitations of the venue.
She thought however it seemed likely that her interaction while warm, could probably be viewed as more that of a child mixing with any group of familiar and friendly adults and children.
She thought it unlikely that any attachment that Alice may have formed to Tom and Elizabeth is of the same nature and degree as that to Simon Lara and Irma Lara.
She noted that Tom and Elizabeth expressed the opinion during interview that Alice’s relationship with them was such that she could make the transition from Simon and Irma Lara’s household to their own with relative ease. She also noted that Simon and Irma Lara disagreed, suggesting that to separate Alice from them after two and a half years would cause her great distress.
Ms Venus commented that current theories of attachment lent support to the view of Simon and Irma Lara in that they suggest that the loss or attenuation of significant relationships in childhood can cause anxiety and a profound sense of loss, particularly if it occurs in the early years.
She noted that extensive research has suggested that there can be serious adverse consequences for the child in terms of their future social and emotional functioning and cognitive growth if their primary attachment relationships are disrupted, particularly when the child is under the age of three.
She noted that the literature indicated that children can form multiple attachment relationships, but she thought that the intermittent nature of the contact between Alice and Tom Marley and Elizabeth Sharp made this unlikely in Alice’s case.
She said that this was not to say that the development of such an attachment would not be possible, but she thought that it would come at the cost of a certain amount of trauma to the child and the potential to adversely affect her later development.
She had some concerns about the fact that as at the time of the interview, Tom Marley and Elizabeth Sharp were in full time employment and would not be available to care for Alice during working hours.
Ms Venus considered that whatever the result, there should be contact with the other parties.
In oral evidence she again stressed the possible dangers of separation in relation to a very young child like Alice. She said that somewhat paradoxically however, Alice appeared to her to be a resilient child and therefore she could adapt to a move better than others.
She expressed confidence that Simon Lara and Irma Lara could cope with Alice’s emotional needs, and she also stressed the importance of keeping up attachments. She noted in particular when questioned by Mr Curtain, that Tom Marley was very relaxed and very warm with the children.
She thought that if Alice was moved into the larger sibling group she might have some difficulty adjusting to not being the centre of attention. She did not think that the existence of extended family at M would ease the transition. She thought that she could still experience a serious grief reaction, although this could be less because of mitigating factors present in this case.
She agreed that it was important that the child should be exposed to indigenous culture and to that end thought four visits per year to M would be wonderful if that could be managed.

Counsels’ Arguments As to Parenting IssuES

Mrs Willis for the child representative pointed out that the evidence made it clear that Simon Lara and Irma Lara had treated Alice as their own daughter and invested their absolute love and attention to her.
She pointed out that for Alice to remain with Simon Lara and Irma Lara represented the current status quo, which had operated for over two years in a satisfactory manner.
She noted that there had been no complaints about the parenting offered by Simon Lara and Irma Lara, who were in fact chosen by Tom Marley and Elizabeth Sharp, and she said that the evidence was that they had done an excellent job.
She also said that it was clear that no criticism could be made about their responsibilities towards parenting. It was apparent that the child was achieving her full potential and it was also apparent that Simon Lara and Irma Lara had the maturity to provide for her emotional well being.
She also noted that their relationship was a solid one that had lasted for many years and that there was no suggestion of family violence or excessive alcohol consumption in their household.
She said that so far as cultural issues were concerned, although there may be some concerns about Alice not living at I, Irma Lara has her own attachments to culture and the child will, through Irma, retain her culture and will no doubt make frequent visits to the Torres Strait.
So far as Tom Marley and Elizabeth Sharp were concerned, she noted that no real criticism could be made of Elizabeth Sharp as a mother. She had worked hard at trying to keep the family together and noted the excellent report cards that the children have from their school.
However, she said that there were concerns about Elizabeth Sharp’s response to Tom Marley’s criminal behaviour, involving an assault of the victim and blaming her for it. She suggested that this revealed a poor attitude from someone who is a parent.
So far as the biological father was concerned, she submitted that the overall impression that he gave was one of being very immature. He had been guilty of criminal sexual acts towards a child and it was apparent that he was prepared to lie under oath.
She said that the Court should be troubled by his conduct and attitude. She noted the evidence that he was bad tempered and volatile when drunk, and on occasions behaved like a loutish teenager.
In this regard she referred to a passage of evidence where Tom Marley admitted having broken a beer bottle over his own head following the football grand final while engaged in a dispute with Elizabeth Sharp.
She also criticised his flippancy about his conduct.
She noted that the relationship between Elizabeth Sharp and Tom Marley and Alice was not close at this point, although she considered that they had played a part and should continue to see Alice. She said that there would be no doubt that if Alice was returned to her biological parents there would be more exposure to Islander culture.
Overall however, the child representative submitted that the appropriate course was to leave the child with Simon Lara and Irma Lara.
While she said that there may be concerns about separation of siblings, this was a case where the parents had voluntarily effected such a separation and she pointed out that such separations were not unusual in Islander culture. As to contact, she submitted that the Court should prescribe two periods of block time for contact during the year.
Mr Fellows, for Simon and Irma Lara, submitted that the Court would prefer their evidence to that of Tom Marley and Elizabeth Sharp. He said that in fact Simon and Irma Lara could have used the evidence as to violence as a trump card in the proceedings, but on the contrary they gave support to Tom Marley in relation to his problems.
He said that I should find that Simon and Irma Lara were child-focused persons who had developed a significant attachment to Alice .
He said that to change the status quo would require a lot of work to assist Alice to cope, and he pointed to the evidence of Ms Venus as suggesting that to do so would involve the taking of risks that were was unnecessary in this case.
He also pointed to the fact that both Tom Marley and Elizabeth Sharp were in the workforce and had limited economic circumstances, which would mean that Alice could lack attention in the months following a relocation.
He said that what was needed for a transfer would be strong insight by responsible people to assist the child through a transition such as the one proposed, and he suggested that the evidence showed it would be a considerable risk to assume that Tom Marley and Elizabeth Sharp had the capacity to do so.
As to contact, he suggested there should be minimum contact arrangements initially, increasing to broader contact subsequently.
Mr Curtain, for Tom Marley and Elizabeth Sharp referred to the difficulties associated with a family breakdown involved in this case.
He said that I should find that his clients had been open and honest and not shied away from difficult facts.
He said the evidence made it clear that there had been a lot of contact between the parties.
In relation to the evidence of the bond between Alice and Irma Lara, he submitted that it was possible to underestimate the bond between Alice and her natural mother.
He criticised Ms Venus’ conclusions based upon a very short visit in D.
He laid stress upon the importance of the sibling relationship being maintained, and also the importance of maintaining the relationship with the extended family in M.
He suggested that there were no negatives about all of the parties parenting skills.
He also submitted that aspects such as the criminal charges and the incidents that followed them should not be regarded as taking away from his clients’ overall parenting capacity.
As to Ms Venus’ evidence of the dangers of a change of residence for Alice, he said that there were a significant number of mitigating factors which would minimise that impact.
He pointed to the fact that the child herself is resilient and capable of making such a transition. He said that she is socially interactive and can be part of her extended family at M, where the environment would allow a closer connection.
He said that it was hard to criticise his clients, who were both in the work force and had community commitments because of those facts. He said there was no doubt that care arrangements could be made in relation to the child within the community.
He said on contact issues there should be two periods of contact per year, one being in the June/July holidays and the other being in the Christmas holidays, including overnight contact whatever the result.
So far as long term care, welfare and development was concerned, he submitted that it was appropriate for there to be involvement for both families jointly and the decision making should take place between the families.
He criticised proposals by Simon and Irma Lara to move to the E area, which he said would place a further burden on the level of contact that could be achieved.

Findings

I now turn to make findings as to parenting matters having particular regard to the matters set out in s 68F(2) of The Family Law Act.
In this case the child is too young for her wishes to be taken into account.
However, it is important to consider the nature of the relationship of the child with each of the child’s parents and with other persons.
In the context of a case such as this it is sometimes difficult to apply s 68F(2) factors literally, in that they are largely designed to cope with conflicts between two parents as to which of them should have the child.
In this case we have natural parents on the one hand and the persons who have acted as parents most of the child’s life on the other.
It is quite clear that the child has a warm relationship with both Simon and Irma Lara, which equates to that of a well-established parent/child relationship.
I am satisfied that she has had only an intermittent relationship with her biological parents that is more akin to the relationship between a child and uncle and aunt.
Similarly, I think the relationship between Alice and her biological siblings tends to be more a relationship between a child and her cousins.
When one turns to consider the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of her parents or any other child or any other person with whom she has been living, it is quite clear that there are grave dangers in subjecting Alice to a separation from Simon and Irma Lara.
The evidence of Ms Venus makes it obvious that to take such a step would place the child in jeopardy so far as her future development is concerned. In light of this evidence it would need to be shown that there were compelling circumstances would require the taking of such a risk.
The next matter that I must consider is the practical difficulty and expense of a child having contact with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
In the present case it is obvious there is a practical difficulty about contact expenses, that will affect the child’s right to maintain contact with both parents.
However, the difficulties are not insuperable.
Each of the prospective parents has the economic capacity to travel from wherever the child may be living to M, and vice versa. The actual times of contact may be limited, but there is no reason why contact should not take place on a relatively frequent basis.
Simon Lara and Irma Lara have ties with family at M, and Tom Marley and Elizabeth Sharp not infrequently visit D and have family ties there.
An issue was raised during the course of the case about the possibility of Simon Lara and Irma Lara moving to the E area because of the absence of work for Simon in D.
He is in fact employed in D on a part time basis but his evidence was that he believed he would get more satisfactory employment if they were to move to E. There were no fixed plans in relation to such a move. In my view, while this would add to some small degree to difficulties of contact, it would not be such as to materially alter the present position.
The next matter that I must consider is the capacity of each parent or of any other person to provide for the needs of the child, including emotional and intellectual needs.
So far as the physical needs of the child are concerned, I have no doubt that all parties are able to provide for these needs. There was some evidence from Simon Lara that the child was not well cared for during the period that she stayed with Tom Marley and Elizabeth Sharp, but on the other hand it is apparent that her siblings are progressing well in her care aided by Mrs S Senior, I would have little concern in this regard.
I would be more concerned about Tom Marley and Elizabeth Sharp’s capacity to provide for the child’s emotional and intellectual needs in comparison with Simon and Irma Lara. I feel that the child would receive much more individual attention if she remains with Simon and Irma Lara. I agree with the criticisms made by Mrs Willis as to the immaturity of Tom Marley and I also do not consider that the relationship between he and Elizabeth Sharp is necessarily a stable one, having regard to the events that have occurred and the level of disputation that I am satisfied takes place between them.
I am next required to consider the child’s maturity, sex and background, including any need to maintain a connection with the lifestyle culture and traditions of Torres Strait Islanders and any other characteristics of the child that are thought to be relevant. I have already referred to the evidence of Ms Venus, which seems to be supported by virtually all other witnesses, that the child is progressing well and that she has an outgoing and pleasant personality.
During the course of the trial some attempts were made to criticise the lifestyle that the child would have in M as distinct from D, based upon factors such as the alleged prevalence of alcohol and violence in the M community.
I made it very clear during the trial and I reiterate that I find these particular comparisons unhelpful. I think that the child’s prospects if cared for by appropriate parents would not be materially affected living in either location.
I have no doubt that there are dangers in any environment if the child is not being properly parented, but if a child is being properly parented then I see no reason to make any comparisons involving criticism of one location or the other.
I think that it is true that if Alice were to remain living at M she would have closer contact with Torres Strait Islander culture. However, I do not think that it can be assumed she will necessarily suffer in that regard living with Irma Lara and Simon Lara.
Irma Lara is also a Torres Strait Islander and there are substantial Torres Strait Islander communities throughout most parts of North Queensland. I therefore do not consider that there is any real risk of her being cut of from her culture by reason of living with Simon and Irma Lara.
I must next consider the need to protect the child from physical or psychological harm caused or that may be caused by being subjected or exposed to abuse, ill treatment, violence or other behaviour, or being directly or indirectly exposed to abuse, ill treatment, violence or other behaviour that is directed towards or may affect another person.
In this case I have no doubt that the child would be safe from abuse and physical ill treatment with both sets of parents. Similarly, I have no doubt that the child will not be exposed to violence in Simon and Irma Lara’s household.
I am less confident about that situation if she was to live with Tom Marley and Elizabeth Sharp. There is the evidence of Eleanor’s violent behaviour towards Tom Marley’s victim, together with her violent behaviour in relation to Tom’s motorcar. Equally, there is evidence of quite recent events involving disputation between Tom Marley and Elizabeth Sharp where Tom Marley broke a bottle over his own head.
While this sort of behaviour may not be frequent, it does not give great confidence that the child will not be exposed to such incidents of violence if she lives with Tom Marley and Elizabeth Sharp on a full time basis. I should say however that I have taken into account the evidence from witnesses living at M as to Tom Marley and Elizabeth Sharp’s capacity as parents and, while I do not consider that they are as suitable as Simon Lara and Irma Lara, I have no doubt that their children are properly cared for. It is really only in the comparison that they suffer.
I must also consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.
To an extent I have already dealt with these matters. I regard Simon and Irma Lara’s attitude to the child and to the responsibilities of parenthood as exemplary.
I regard the attitude of Tom Marley and Elizabeth Sharp as satisfactory, but as I have said I think that Tom’s immaturity indicates that there will be occasions when responsibilities of parenthood will be overcome by his urge to engage in irresponsible behaviour.
Insofar as I have not dealt with other matters set out in s 68F(2), this is because they are either covered in my findings or irrelevant to this case.

CONCLUSION

It is apparent that the only possible conclusion open to me in this case is to determine that Alice should reside with Simon Lara and Irma Lara for the reasons given.
As I have said, I think that the parties did intend the arrangement between them to constitute a traditional adoption, but I consider that whether it did so is a matter for the Islander community.
As I have found, whether or not it is a traditional adoption, it was clearly intended to be a permanent relationship.
Had that intention been honoured by Tom Marley and Elizabeth Sharp, then I have no doubt that there would have been no need for contact orders, because contact would have taken place between the families in exactly the same way that it did until the beginning of 2003.
I am unable to determine the motive for the change of attitude by Tom Marley and Elizabeth Sharp. One could speculate that it was because with the birth of T, Alice was the only girl child of their relationship (E being an adopted child of Elizabeth Sharp).
There may have been pressure from Mrs S Senior, possibly for the same reason. However this may be, the fact is that they did change their attitude and thereby precipitated a particularly unpleasant family dispute.
It is to be hoped that the passage of time will heal some of the wounds of this dispute to the point where the family members will be able to resume their previous warm and loving relationship. However, I cannot assume this.
For this reason and because of the need for Simon and Irma Lara to be free to bring up Alice as they think appropriate I do not propose to accede to the submission by Mr Curtain that Tom Marley and Elizabeth Sharp should share the long term responsibility for Alice’s care welfare and development with Simon and Irma Lara. I feel that the level of conflict that I have observed would work against such an arrangement.
As to contact, I agree with the submission of the child representative and therefore will make orders for contact in two blocks as suggested by her.
As is apparent, distance and cost affect contact. Doing the best that I can, I propose to order two blocks of contact of three weeks at a time at M during the June/July period and in the lead up to Christmas. During this period I propose to make Orders that will provide that Alice has overnight contact with Tom Marley, Elizabeth Sharp and her siblings for two out of each three week period while the child is in M.
I will also make Orders for contact between Tom Marley and Elizabeth Sharp and their children and Alice in D, or wherever else Simon and Irma Lara may be living as may be agreed between the parties.
Any contact orders have a degree of rigidity about them and I hope that the parties will be able to resume their relationship to the point where they are able to be flexible in their execution.
I will hear submissions from Counsel as to the issue of contact orders in the immediate future and as to the precise form of contact and other orders that I should make.

I certify that the preceding 275 paragraphs are a true copy of the reasons for judgment delivered by the Honourable Chief Justice Nicholson.

Lenore Brophy
Executive Assistant