Tuite and Wall
[2003] FMCAfam 262
•11 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TUITE & WALL | [2003] FMCAfam 262 |
| FAMILY LAW – Children – best interests – Aboriginality of children – serious disregard of responsibilities of parenthood as exhibited by mother’s clandestine relocation of children. Family Law Act 1975, ss.60B, 65E, 68F Brown & Ferguson, Unreported decision of Moore J number BR8668 of 1996 delivered the 23rd of February 1998 B and B: Family Law Reform Act (1997) FLC 92-755 |
| Applicant: | MR TUITE |
| Respondent: | MS WALL |
| File No: | DNM 2607 of 2001 |
| Delivered on: | 11 July 2003 |
| Delivered at: | Darwin |
| Hearing dates: | 3 & 4 July 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms M Allan |
| Solicitors for the Applicant: | North Australian Aboriginal Legal Aid Service |
| Counsel for the Respondent: | Mr G Ambrose |
| Solicitors for the Respondent: | Samantha Ward Pty Ltd |
ORDERS
The father and mother retain joint responsibility for the long term care, welfare and development of the children of the relationship [J] born in 1993, [M] born in 1995, [C] born in 1996 and [H] born in 1999.
The said children live with the mother.
The father and mother each have sole responsibility respectively for the day to day care, welfare and development of the children when the children are in the care of that parent.
The children have contact with their father as follows:
(a)In 2003 and each alternate year thereafter, from 22 December until 12 January in the following year;
(b)In 2004 and each alternate year thereafter, from 3 January until
24 January in that year;(c)Each year in the July school holidays from the final Friday of term until the final Friday of the holidays;
(d)By telephone each Wednesday and Sunday at 6.00pm Australian Central Time;
(e)At such other times as agreed between the parties.
For the purposes of contact:
(a)The mother will pay the costs of the return travel of the children to Darwin for contact in December/January;
(b)The father will pay the costs of the return travel of the children to Darwin for contact in July;
(c)The mother is to telephone the father for the telephone contact;
(d)During contact the father will permit the children to telephone the mother at their request and in any event each Wednesday and Sunday at 6.00pm Australian Central Time.
That the mother authorise the Principal of each school attended by the children from time to time to send to the father;
(a)A photocopy of each child’s school report; and
(b)An order form for each school photo of the children concerned.
That all existing orders be discharged.
That all applications be dismissed.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules it is certified that this was a reasonable matter for an advocate to appear for each of the parties in the proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Tuite & Wall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM 2607 of 2001
| MR TUITE |
Applicant
And
| MS WALL |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to parenting arrangements for four children namely: [J] (“[J]”) born in 1993; [M] (“[M]”) born in 1997; [C] born in 1996 and [H] born in 1999. The parties to the proceedings are the parents of these four children, MR TUITE (“the father”) and
MS WALL (“the mother”).
The parties met in Darwin in 1992 and began a relationship shortly afterwards. They lived together, both in suburban Darwin and in the rural areas surrounding the town. Each of the children was born in Darwin. The parties separated in April of 1997, when the mother left their then home in Adelaide River and moved to a house in Palmerston, with the three older children. [H] was conceived during a period when the parties were, from the father’s perspective, attempting to reconcile their relationship.
Between April of 1997 and October of 2000, the father had regular contact with the children, particularly [J] and [M], whom he would take with him on trips out bush, particularly shooting trips. This was an area of contention between the parties. The mother being unhappy that the children were exposed to firearms and the killing of animals, at what she considered too tender an age.
In October of 2000, the mother took the four children with her to Victoria. Ostensibly, the purpose of the trip was to visit her mother for a period of about 6 weeks, at her home in [X], in suburban Melbourne. However, she has never returned to Darwin. In June of 2001, she relocated the children to East Geelong. She concealed her address from the father. From this time onwards, there was no contact at all between the father and the children. Previously, whilst the mother had been living in [X], there had been some telephone contact.
The father commenced proceedings in this Court in late 2001, initially seeking information from the social security authorities, as to the whereabouts of the four children. Thereafter, on an interim basis, he sought contact with the children. On a final basis, he sought orders that the four children live with him in Darwin.
Once the father became aware of the address of the mother in Victoria and she had been served with his application, orders were made for the father to have contact with the four children in Victoria, during the mid year school holidays of 2002. This was the first time that he had had physical contact with the children since the mother had moved to Victoria. He has not had physical contact with the children since, apart from a brief period of time in May of this year, during the preparation of the family report. He has had telephone contact with the children, although he is critical of the mother for the quality and frequency of this contact.
As a result of the circumstances surrounding the mother’s departure from Darwin and her concealment of the whereabouts of the children, the father remains deeply suspicious of the mother and hostile towards her. It is his position that she actively embarked on a course of conduct designed to exclude him from playing any role in the parenting of these four children, to their serious detriment.
Mr Tuite, and so the children, have an Aboriginal heritage. Ms Wall does not. As a result of the mother’s conduct, it is the father’s position that the children have been deprived of the opportunity of understanding their place in their indigenous family and culture, which they enjoy on the paternal side of their family and all of the benefits that flow from that connection. Accordingly, it is his position that there should now be a change in the residence of the children and they should live with him in Darwin. He argues that of the two parties, he is more capable of ensuring the children maintain a relationship with both their parents as well as, “the culture and traditions of Aboriginal peoples”.[1]
[1] See Family Law Act section 68F(2)(f)
The mother is well settled in Geelong. As is clear, she has been the parent most intimately involved in the care of the children for a period in excess of six years. Accordingly, it is her position that it is not a realistic proposal for the place of residence of the children to be changed at this stage. She concedes that she behaved wrongly and selfishly when she went to Victoria and concealed the children from their father. However, she now believes that both these proceedings and a personal tragedy that she suffered late last year, have helped her to see the error of her ways and “to turn a corner”, so far as her parenting is concerned. She now believes that she is capable of fostering the appropriate relationship between the children and their father, particularly in the context of their shared Aboriginal heritage.
It is not a realistic proposal for either of the parties to move, so as to enable the children to live closer to the other parent. The father is to embedded, both emotionally and culturally, in the live of the Top End of the Northern Territory to countenance such a move. All his family live in the Northern Territory and he has formed a new relationship with MS B, whom he plans to marry in August of next year. The mother grew up in Geelong and has been living there for the last two years. She too has formed a new relationship with MR G. She has no wish to return to live in the Northern Territory.
Accordingly, whoever of the parties is successful, there will have to be orders made to deal with the other’s contact to the children. Given the distance between Melbourne and Darwin; the likely expense of the travel involved; and the ages of the children concerned; these arrangements are likely to be problematic in the extreme. Neither party appears to be in a particularly robust financial position. Both parties have made proposals as to what the other’s contact should be. In particular, the parties have considered what the contact arrangements should be, if the children continue to live in Victoria.
In those circumstances, the mother proposes that there should be two periods of contact each year, for 3 weeks in the December/ January school holidays and for 2 weeks in the mid year school holidays. It is the father’s position that, if the children are living so far away from him and, if they are to have a meaningful opportunity to explore their indigenous heritage, particularly as it relates to the Top End of the Northern Territory, two periods of block contact each year are insufficient. He proposes three periods of contact each year, for longer durations than those proposed by the mother.
These in brief are the issues which the Court has to resolve in this case. In order to assist the Court with the matter, a family report was ordered. This report was prepared by Clare Bult, an experienced Family Court counsellor and psychologist.
The applications
At the outset, it is appropriate to set out the competing proposals of the parties. The father is the applicant in these proceedings. In a minute filed prior to the commencement of the final hearing he indicated that he seeks the following orders:
(1)That the children [J] born in 1993, [M] born in 1995, [C] born in 1996 and [H] born in 1999 (“the children”) reside with the father.
(2)That the mother and father share joint responsibility for the children’s long term care, welfare and development.
(3)That each parent will be responsible for the day to day decisions concerning the care of the children when the children are resident with him or her.
(4)That the mother have contact with the children in Victoria as follows:
(a)For the whole of the Northern Territory Christmas school holiday period of 2003/2004 and each alternate year thereafter;
(b)For half of the Northern Territory Christmas school holiday period of 2004/2005 and each alternate year thereafter;
(c)For two weeks of each of the Northern Territory school term holidays in Jun/July and September/October each year;
(d)By telephone each Wednesday and Sunday at 6.00pm Central Standard Time with the father to telephone the mother; and
(e)At all other times as agreed between the parties from time to time.
(5)In the event that the residence application of the father is unsuccessful:
(a)The father is to have contact as follows:
(i)For the whole of the Victorian Christmas school holiday period of 2003/2004 and each alternate year thereafter;
(ii)For half of the Victorian Christmas school holiday period of 2004/2005 and each alternate year thereafter;
(iii)For the Victorian school term holidays in June/July and September/October each year;
(iv)By telephone each Wednesday and Sunday at 6.00pm Eastern Standard Time or Daylight Saving Time whichever applies in Victoria with the mother to telephone the father; and
(v)At all other times as agreed between the parties from time to time.
(b)That the mother ensure that the father is provided with all school reports directly by the children’s school/s and that the father is given the opportunity of purchasing any school photographs by the children’s school/s.
(c)That in the event of the death of the mother the children will reside with the father.
(6)That the mother and father each be responsible for paying half of the costs of transporting the children for contact visits.
(7)That the father be at liberty to involve the children in cultural activities whilst they are in his care.
In a minute of order, which was handed up by the mother’s counsel during the hearing, the mother indicated that she seeks the following orders:
(1)All previous parenting order with respect to the children [J] born in 1993, [M] born in 1995, [C] born in 1996 and [H] born in 1999 be and are hereby discharged.
(2)The father and the mother retain joint responsibility for the long term care welfare and development of the children.
(3)The father and the mother each have sole responsibility respectively for the day to day care welfare and development of the children when the children are in the care of that parent.
(4)The children reside with the mother.
(5)The children have contact with the father as follows:
(a)In 2003 and each alternate year thereafter, from 22 December until 12 January (3 weeks);
(b)In 2004 and each alternate year thereafter, from 3 January until 24 January (3 weeks);
(c)Each year, in the July school holidays from the final Friday of term until the final Friday of the holidays (2 weeks);
(d)By telephone, each Wednesday and Sunday at 6.00pm Central Standard Time;
(e)At such other times as agreed between the parties.
(6)For the purposes of contact:
(a)The mother will pay the cost of the return travel of the children to Darwin for contact in December/January.
(b)The father will pay the cost of the return travel of the children to Darwin for contact in July.
(c)The mother is to telephone the father for the telephone contact.
(d)The father will be in substantial attendance during contact.
(e)During contact the father will permit the children to telephone the mother at their request and in any event each Wednesday and Sunday at 6.00pm Central Standard Time.
(7)Certify.
(8)All outstanding applications be dismissed.
The documents relied upon
The father relied upon the following documents:
i)An affidavit of himself filed on the 3rd of December 2002;
ii)An affidavit of his mother, Mrs T filed on the 1st of July 2003;
iii)An affidavit of his fiance, Ms B filed the 3rd of December 2002;
iv)An affidavit of his sister, Ms P filed the 3rd of December 2002.
The mother relied on the following documents:
i)Three affidavits of herself filed on the 13th of May 2002, 3rd of December 2002 and the 1st of July 2003;
ii)An affidavit of Mr G filed the 1st of July 2003.
Both parties were represented by counsel in these proceedings. It was not possible for the mother to travel to Darwin for the hearing, which took place on the 3rd and 4th of July 2003. Arrangements were made for her and her counsel to appear in Court in Darwin by way of a video link from the Family Court in Melbourne.
Both parties gave additional viva voce evidence and each was extensively cross-examined by counsel for the other party. As a result, I had the opportunity to observe the demeanour of both parties closely. In addition Mrs T, Ms B and Mr G were required for cross-examination. Ms Bult, the family report writer was required for cross-examination by Ms Allan, counsel for the father. Her report was tendered into evidence, without objection from either party.
The evidence
There were few areas of serious factual dispute between the parties. As a result, I formed the view that they are both honest and decent people, who are motivated in these proceedings by what they consider is likely to be in the best interests of the children concerned. They are, however, very different people in terms of their background and temperament. In addition, as a result of what has happened between them in the past, they each have serious and trenchant criticisms of the other’s abilities to adequately parent the children. Inevitably, there remains a high level of tension and hostility between them and, no doubt as a result of this tension, they have each tended to reconstruct their lives together and assess the other’s motives and proposals through a prism of hostility and mistrust.
The father remains understandably bitter about what he, quite rightly, regards as the mother’s deceit towards him, which has resulted in him being, as he sees it, “robbed” of the opportunity to spend three years with his children, whom he undoubtedly loves. I formed the impression that he continues to be very angry with the mother indeed. I can well understand his anger. However, I was concerned that the level of his anger towards the mother may have blinded him, to a certain extent, as to what was likely to be in the best interests of the children. However, to his credit, he conceded that the mother had capably cared for the children since the parties separated and that she too deeply loved them.
The father is strongly possessive of the children, particularly their identity as “Tuites” and his entitlement to determine what arrangements should be made in respect of them. He is very proud of his way of life and where he lives, almost to the extent of being parochial. He described the Northern Territory as being “better” than anywhere else in Australia, particularly in terms of its environment and educational opportunities. I am not critical of him in this regard, as he has lived nowhere else. His lifestyle involves bush trips throughout the Top End of the Northern Territory; firearms; fishing; and the hunting of both native and introduced animals and birds, particularly feral pigs and geese. In the past, he has been a feral animal eradicator and has hunted animals for pet meat. It is necessarily an outdoor life and one marked by self-sufficiency. Some might regard it as harsh and uncompromising, involving as it does the slaughter of wild things. From the father’s point of view, it is the only life he has known and has made him what he is – self-reliant, capable and a straight talker, above all, a person who is at home in an environment which is potentially dangerous to those who are inexperienced in it. These are all qualities he would want his children to have. He was a brusque and, at times, an argumentative witness, who was keen to get his point across.
The mother views the father, particularly during their relationship and in its aftermath, as being domineering and insensitive to her needs and those of the children. Of particular concern to her, was the involvement of [J] and [M] in hunting expeditions, from an early age. She views the exposure of children to such things as inappropriate and something that came about only because the father demanded that it should occur and she felt too cowed by his more dominant personality to demur. Something she now regrets.
In the immediate period prior to the parties’ separation, they were living in a rural setting at Adelaide River, which the mother found challenging. The block on which they were living at the time was shared with other members of the father’s family. The mother was not used to living in such an environment and found aspects of it frightening, particularly coming into contact with feral buffaloes. She herself was used to living in a more suburban setting. Apart from these difficulties, one of the major catalysts for the parties’ separation was due to the fact that [J] was injured by a falling metal disc, which cut his ear, whilst he was out with his father shooting at targets. [J] was about 3½ years of age at the time. In the mother’s view, this was the beginning of her aversion to firearms, an aversion that continues to the present day. Clearly, firearms and their use are an integral part of the father’s way of life. Once the parties separated, the mother and the then three children of the relationship, moved to a more conventional suburban setting in Palmerston, which the mother found more comfortable and familiar.
These matters are recounted not to make any value judgements in respect of the lifestyles of the parties involved, but to demonstrate their fundamentally different world views, particularly in respect of what was appropriate for their children.
Between 1997 and 2000, the father had frequent weekend contact with [J] and [M], taking them away with him on extended shooting and fishing trips. He spent less time with [C] and [H]. They were younger and the mother refused to allow him to have contact away from her. From the mother’s perspective, it was unhealthy for the two boys to be engaged in such trips, which she regarded as potentially dangerous. She did not believe that the two boys were old enough to understand the implications involved with the use of firearms. She was concerned that they were too young to go on such extended trips and that they were returned to her dirty, hungry and tired. However, she did not feel that she could refuse the father contact and she did not seek to place any limits on it, although she regarded it as inappropriate. It was her perception that the boys did not necessarily enjoy these trips and were to some extent frightened of their father. From the father’s perspective he was doing the things he loved with the two boys, in the same way he had done, in his childhood, with his own father. He believed that both [J] and [M] enjoyed the trips they took with him and, due to his knowledge of firearms and his experience in the bush, were in no danger, but were in fact learning a lot about the bush and his way of life. From his pint of view, he was merely replicating the experiences that he had had whilst growing up.
The mother presented as a frank and pleasant witness. She is clearly devoted to the children, whom she described as “meaning the whole world to me”. In her evidence, she described the reasons for the parties’ separation as: “we grew apart because out values were different.” Although she described the father as being dictatorial towards her in the past, particularly in respect of his contact to [J] and [M], she indicated that he had never been physically violent towards her. She said of the father, “he is not a horrible dad.” Rather, following separation, she felt overborne by his stronger personality and felt that she could not stand up to his demands in regards to contact.
I accept that she had a great fear of her children being near guns. Given her background and the age of the children concerned, this is understandable. I also accept that she is fiercely protective of her children. Between 1997 and 2000, she was clearly unhappy about the way the father took [J] and [M] shooting with him. It was her perception that [M] was at times frightened of his father. This was the background to her unilateral decision to relocate the children from Darwin to [X] in Victoria. She is to be criticised for her behaviour in this regard, which did deprive the children of the opportunity to have any contact with their father, for an extended period of time. Regardless of her disapproval of the father and particularly of his involvement of [J] and [M] in shooting expeditions, she was not entitled to assume sole parental authority for the four children. In her evidence, the mother indicated that, with hindsight, she should have sought court orders in order to address her concerns about contact. However, she took the path of least resistance and, when she arrived in [X] and, to her perception, saw that the children appeared calmer and happier, decided to stay. Although she was misguided, I do not believe that her behaviour was motivated by malice for the father.
To her credit, the mother now acknowledges that her conduct was reprehensible and she has apologised for it. In the circumstances, the mother is hardly in a position to defend her behaviour, however, I do not believe that her contrition is feigned nor her currently professed resolution to facilitate contact between the children and their father in future. I do believe that she has seen the error of her ways.
It is of course easy to proffer apologies and give undertakings to behave better in future, when under some pressure as a result of proceedings such as these. However, I accept the truth of the mother’s explanation for the reassessment of her attitude towards the father and contact generally. In December of last year, she was halfway through a pregnancy with twins. Sadly, these twins were delivered prematurely and were stillborn. The experience of grieving for her lost children, reminded the mother that her conduct had effectively caused the father to lose his four children and experience the same level of grief that she was experiencing. This experience caused her to realise that each of the four children were as precious to the father, as they were to her. Since that time, the evidence does indicate that the mother’s attitude to contact has improved and, although telephone contact has been interrupted from time to time, it has continued. The mother has also turned her mind to the difficult issue of contact and, given the logistical problems involved, has proposed some realistic solutions in regards to it, which involve some personal sacrifice on her part. I accept her evidence when she says that she is proposing these things for the sake of the children, so that they will have the opportunity to know their father and have a relationship with him for the rest of their lives. In this sense, I accept that the mother has turned a corner in respect of her insight into the responsibilities of being a parent.
a) Background
The father was born in Darwin in 1973. He has lived the whole of his life in the Top End of the Northern Territory. He has three brothers and a sister, all of whom also live in the Top End. Currently, he is employed as a [omitted]. He has been employed by [omitted] for
8 years. He and Ms B live on a five acre block at Humpty Doo. On this block is a three bedroom house. Apart from the father and Ms B,
no-one else lives there. The property is close to the home of his mother, Mrs T.
At the present time, the father’s employment does not require him to work out bush for extended periods of time. He is based at [omitted] and works principally in the rural hinterland around Darwin. Undoubtedly, his home at Humpty Doo would provide adequate accommodation for the children. I also accept that [employer omitted] would adapt his working hours to accommodate his parenting responsibilities, if the children were to live with him in future. He proposes that the four children concerned would attend [omitted] Primary School.
The father enjoys an Aboriginal heritage through the paternal side of his family. Mrs T is not Aboriginal. She was born in Korumburra in Victoria. The father’s father was Aboriginal. He was born in Biggenden, near Maryborough in Queensland. He passed away shortly prior to [J]’s birth. Accordingly, none of the children knew their grandfather.
Although Mr T Senior was not born in the Top End, he came there when he was a young man. He found employment in and around Arnhemland as safari guide and buffalo and crocodile hunter. As a result, he developed close connections with the Aboriginal people, who lived in the area, particularly around Maningrida and Humpty Doo. He was “grown up” by an old man called Yellow Charlie. In the father’s evidence, his father was “adopted into” his family. As a result of this connection, the late Mr Tuite underwent a ceremony in Maningrida.
No specific evidence was led as to the nature of this ceremony.
It is through his father that Mr Tuite has connections with the Aboriginal people who live at Maningrida. He regards these people as his family and this area as his country. He acquired an extensive knowledge of the country through his father and his grandfather, whilst he was growing up. However, although he had the opportunity to go through a ceremony with his father at Maningrida, he has not as yet done so. A matter he now regrets. His father was fluent in the language spoken in and around Maningrida. However, the father himself has no more than a few words of the language.
As a child, from the age of five onwards, the father was taken on shooting trips by his father and grandfather. He himself began shooting at the age of ten and I accept that he is an experienced and safety conscious marksman, with extensive experience of a wide variety of firearms. The hunting of animals for food was an integral part of his childhood. Mrs T also was involved in such hunting trips with her late husband and family.
As a result of his experience in childhood, the father has a great love and knowledge of the natural environment of the Northern Territory, acquired from his father and other relatives. From his father he learnt how to hunt and handle crocodiles; about fishing and boating skills; and particularly about the collection of bush tucker, including billy goat plums, white apples and pandanus nuts. He also learnt traditional hunting methods, involving barramundi and turtle. He also learnt to shoot and butcher introduced species such as buffalo and cattle. These latter skills are of course not skills exclusive to Aboriginal people, but are ones enjoyed by many people who are engaged in, for want of better phrases, an “outback” or “station” way of life.
Through his connections with his father, the father has a large extended family. He has many relatives whom he describes as aunts, uncles and cousins. In turn, each of the children in this case, would have similar connections. It is the father’s wish that each of the children should in future go through a ceremony at Maningrida. The father’s brother recently went through his first ceremony. The father hopes to go through a ceremony himself at sometime in the future when he is on long service leave. Such a ceremony would not involve circumcision for any of the boys concerned in this case.
The father left school early. As a young man, he was a buffalo catcher. From 1988 onwards he was a professional shooter and eradicator of feral animals. He has also worked as a labourer and a machine operator in the mines. Given his background and experience, it is understandable that he prefers an outdoor life.
The mother was born in East Geelong, Victoria in 1973. In the past, she has worked as a childcare worker. At the present time she is engaged in home duties on a full time basis. She came to the Northern Territory, as a teenager in 1989, and lived with her mother at [omitted]. She and the father met in November of 1992 and they began to live together when the mother fell pregnant with [J]. They have never been married. The parties lived initially in rented accommodation in Darwin. They got into financial difficulties after [J] was born. In order to alleviate their financial position, they moved to Mrs T’s block, near Adelaide River, where they were able to live rent free.
It is the mother’s position that the father was closely involved in the care of [J] after he was born but was less involved in the care of [M] and subsequently [C]. They parties were not living together when [H] was born. The father was not registered on her birth certificate and accordingly she bears the surname Wall. The parties have different views as to why this occurred. However, in the context of this case, it is important to note that there is no dispute between the parties as to her paternity. However, the father does not presently pay child support in respect of her and the mother has not sought an administrative assessment of child support from the father in respect of [H].
Given the date of the parties separation, there can be no doubt that the mother has provided a significantly greater amount of the care required for the children during their lives to date. The parties agree that the children are closely bonded with one another and it is not appropriate for them to be separated.
The mother herself is not of Aboriginal extraction. However, she acknowledges that, through their father, each of the children concerned enjoys an Aboriginal heritage. Clearly what this means to each of the parties and the children concerned, is critical in this case. To the father, it means the children having contact with their extended family and more immediate family in the Top End and having the opportunity to go out bush, where they will learn to hunt and gather food, both in a traditional and more conventional manner. A large part of the father’s identity is bound up with his abilities as a marksman and a hunter, of feral pigs as well as wallaby and geese.
To the mother, a recognition of the children’s Aboriginal heritage involves them learning about their origins in both a historical and practical sense, which she believes they can do, to a certain extent, in an educational context. At the school the children are currently attending, they have an exposure to Aboriginal culture in a general sense. Helen, an indigenous person from Western Australia, who is currently employed by the Victorian Education Department attends the children at school. The mother describes her as a “support person” for children of Aboriginal extraction. Helen recently coordinated a reconciliation ceremony at the children’s school; involves them in dancing and basket weaving; and has read them stories based on Aboriginal creation mythology from around Australia. The father is critical of this as not being specific to the children’s connections with the Top End in general and Maningrida in particular. However, I accept that the mother is endeavouring to assist the children to identify proudly as Aboriginal children and to this extent, the children have positive exposure to Aboriginal culture at school. I also accept that this is not the same thing as the children being immersed in a living culture in Maningrida and with the father.
However, the evidence of the mother is that during the time she and the father were living together, the children did not go to Maningrida and it seems that they learnt very little about such things as bush medicine or bush tucker from the father, although Mrs T did teach them about such things. They did however have wide exposure to hunting with firearms, whilst with the father, which of course is an activity in which many Aboriginal people and other residences of the Top End engage. The mother is critical of what she sees as the father’s unhealthy preoccupation with hunting. However, in the father’s eyes, hunting with firearms is very much a part of current Aboriginal cultural practice and, given his experience, skills that he can pass on to his children.
The father had contact to each of the children in July of 2002. For this purpose, he and Ms B travelled to Victoria, where they were able to borrow a friends farm at Ballarat for the contact. From the father’s prospective, the contact went well and the children enjoyed meeting Ms B. I accept the mother’s evidence that the children found the aftermath of this contact somewhat unsettling and in particular were upset at the possibility that they might have to live in Darwin in future. [M], in particular, was disturbed by they prospect and became withdrawn at school and somewhat possessive of his mother at home, to such an extent that the school authorities recommended that he remain at home to regain his emotional equilibrium. There can be no doubt that each of the children have a close emotional attachment to their mother.
b) Ms B’s evidence
Ms B presented as a sensible and pleasant witness. She was born in Malaysia of Indian-Malaysian parents. However she was adopted by Australians of European descent when a young child and has lived in this country for many years. She is an Australian citizen. She has known the father for many years and is very supportive of his wish to bring the children to live with him and Ms B in Darwin. At the present time, she is employed as a [occupation omitted]
I accept that she introduced herself to the children in a sensitive way, during the July contact of 2002 and that the children accepted the significant role she plays in their father’s life. The children think Ms B is “nice” and so she seemed to me.
The father and Ms B plan to marry in Malaysia in August of next year. They would both dearly love the children to attend their wedding. To her credit, the mother has indicated that she would be supportive of this happening, if she was given sufficient notice of the details of travel, so that proper planning could be done.
c) Mrs T’s evidence
Mrs T gave brief evidence. She is strongly supportive of her son in his application for the residence of the children and has a negative view of the mother, whom she regards as dishonest and unreliable. She has had no contact with the mother for many years. Her own contact with the children concerned has been limited. However, she is critical of the manner in which the mother disciplined [J] on one occasion, when the parties were living at her block at Adelaide River. She informed the father of her concerns in regards to this matter and he saw fit to take no action in respect of it. Given Mrs T’s antipathy for the mother and the period of time that has elapsed since the incident occurred, I do not believe that it is necessary to make any findings in respect of the matter. Both parties indicated that, in extreme circumstances, they would use physical discipline on their children, as a last resort.
d) Mr G’s evidence
Mr G too gave brief evidence. He and the mother met each other in April of 2002. They began a permanent relationship with one another in October of that year and began to live together, with the children, in East Geelong, on the 26th of January 2003. As can be imagined, he spoke positively of the mother’s parenting abilities and the closeness of the children to her.
I found Mr G to be an honest witness and I have no reason to disbelieve him when he says that he and the mother have formed a committed relationship with one another. He is currently unemployed, but is seeking work. He indicated that he was committed to assisting the mother financially in coming to Darwin with the children, for the purposes of contact.
e) The Family Report
The family report in this matter was prepared by Clare Bult. She is a psychologist of over 26 years standing. She has been employed as a Family Court counsellor for two periods, namely between 1976 and 1980 and from 1993 to the present time. She is a member of the Australian Psychological Society. In her capacity as a Family Court counsellor, she has prepared literally hundreds of family reports and has extensive experience in interviewing children and assessing families. I found her report and evidence well considered and persuasive and as a result, I accept her conclusions and recommendations.
Mr Tuite travelled from Darwin to Melbourne for the purpose of the preparation of the report. As a result, Ms Bult was able to observe his interaction with the children. In her view, [J] and [M] had a strong relationship with their father and [C] and [H] related well to him.
Ms Bult described all four children as happy, lively children, who were a “positive reflection” on the mother’s parenting. She also believed that the four children presented as close and cooperative siblings. However, overall, she believed the children had a closer bond to their mother than their father.
Ms Bult did not believe that the mother could be criticised for her actual parenting of the children, other than her obvious failure to fulfil her responsibility of assisting the children to maintain their relationship with their father. In essence, it was Ms Bult’s view that the children were a credit to Ms Wall and were well behaved and sociable. Certainly, it seems that they each liked both Ms B and Mr G, whom they regarded as friends. However, Ms Bult did believe that it would be a “huge leap” for the children to go from spending five days with Ms B to living with her in a parental role.
In the assessment and recommendation section of her report, Ms Bult opined as follows:
“All four children have close positive relationships and attachments to their mother. The younger two, [C] and [H], in particular, have a much stronger bond to their mother than to their father and that is not surprising given what has happened. However because they are out-going children and feel secure, both [C] and [H] related well to their father and appeared to accept his role in their lives. [J] and [M] have strong relationships with their father and clearly enjoy interaction with him. [M] commented that he enjoys the telephone calls with his dad. However their primary attachment is with their mother. But they quite clearly want a relationship and to spend time with their father.
Mr Tuite has raised the need for the children to spend time and he connected with his adopted indigenous family group as a reason for them to reside with him because they will miss specific events, ceremonies etc. If they were residing with their mother in Darwin and having contact with their father, they would probably still miss some of those events – but it is even harder from Victoria. From both his and Ms Wall’s accounts it would seem that Mr Tuite’s learning and involvement in his culture has increased in recent years. While it is not ideal, there would still be opportunities to involve the children with the father’s extended family and country when the children are on school holiday contact for a number of weeks at a time.
The important aspect of the children’s lives that Mr Tuite appears not to acknowledge is the children’s primary attachment to their mother and how important this is for the children. He could argue that some of that has come about by default and Ms Wall’s move away, however [C] was three months old when the parents separated and so neither [C] nor [H], born after separation, have really lived with their father. A change of residence for these two children would be detrimental to their emotional well-being. [J] and [M] know their father and have a good relationship with him. They love both their parents but they are strongly attached to their mother. Neither the children not their parents would want the sibling group divided between the two homes. For all the above reasons it would be in all the four children’s best interests to remain living with their mother. However they need to have extended holiday contact with their father, as well as their frequent telephone contact. School holiday contact needs to occur twice a year to give the children adequate time with their father and to see their many relatives in Darwin. The counsellor’s recommendations are therefore that the children reside with their mother and have contact with their father.”[2]
[2] See Family Report paragraphs 25, 27 and 28
The law
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the objects of this part of the Family Law Act. The object is to ensure that the 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.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interest, the following:
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.
The application of these objects is subject to the provisions of section 65E, which regards the best interests of the child or children concerned as being the paramount consideration in the making of a determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F(2) of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. In this case it is the Court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant sub-sections contained in section 68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve [J], [M], [C] and [H]’s best interests.
Section 68F(2) factors – determining the best interest of the children.
a) The children’s wishes
At the present time, the children are all aged under 10. They have lived in the sole care of their mother since 1997. Given their ages, any wishes they might have expressed, are not likely to be strongly determinative. At any event, there is no strong evidence as to what the wishes of the children are. It is the father’s position that [J] indicated to him, during the contact visit of July 2002, that he would prefer to live with his father rather than his mother. In the necessarily charged emotional circumstances of this contact visit, I strongly discount this as an expression of [J]’s true wishes. Certainly, he was more guarded with Ms Bult and indicated that he did not want to express any opinion about the issue. [M] was similarly reticent. [C] and [H] are 5½ and
4 years old respectively and clearly not in a position to express any wish.
b) The nature of the relationship between the children, their parents and other significant people
In my view, there can be no doubt that the most significant person in the children’s lives to date has been their mother. She has provided the vast majority of the children’s care, both before and after, the parties separated. This coincides with the assessment of Ms Bult, who regarded the children’s primary attachment as being to their mother. Given the circumstances of this case and especially the long period of time during which the parties have been separated, the father was not in a position to challenge this finding. In my view, this is clearly the most significant factor in the case. I can well understand the bitterness and resentment of the father, who quite rightly feels that, to a large extent, this situation has been foisted upon him, without regard for either his feelings or the needs of the children concerned. However, I must approach this case from the perspective of the children concerned and it is abundantly clear that they each feel comfortable and secure with their mother, who provides appropriately for their care.
Mrs T clearly loves the children, but in her evidence concedes that she was not an interventionist grandmother during the time the children were living with the mother in Darwin and, as a result, did not see the children frequently. She thought it appropriate to leave the parenting largely to the parties themselves. Necessarily, both Mr G and Ms B’s relationship with the children is in its nascent stages, although I accept they are both well intentioned. There is no evidence that the children have any significant relationships with others of their relatives, apart from their parents.
c) The likely effect of any change in the children’s circumstances
The father’s proposal has enormous ramifications for the children concerned. If his proposal is accepted the children would leave the care of their mother, with whom they have each lived for the entirety of their lives to date. Although it is clear that [J] and [M] enjoy a close relationship with their father, the same cannot be said for [C] and [H], who have never lived with their father for any extended periods of time. Although all four children seem to be outgoing and sociable, it would be a major accommodation for them to move from the secure environment of their mother’s home, to one which is largely foreign to them in the Northern Territory.
The father concedes that they would each initially be upset by the transition, but would learn to cope with it in time. The mother is not so confident and nor am I. In Ms Bult’s view, it is likely to be seriously detrimental to [C] and [H]’s emotional well being for there to be a change of residence. Neither party advocates a splitting of the siblings. In my view, the potential detriment to each of the children, but particularly [C] and [H], which would be occasioned by a change of residence at this stage, strongly militates against the father’s proposal. In Ms Bult’s phrase, it would be “a huge leap” for them to go from spending five days with the father and Ms B to living with them on a permanent basis.
It is not appropriate for the emotional well being of the children to be jeopardised, because of the default of their mother in moving them to Victoria in 1997 in secret and in opposition to the father’s wishes.
d) The practical difficulties associated with contact
It is a very long way from Darwin to Melbourne. The only practical way for the children to travel would be by air. Given that there are four children involved, the cost of this travel is likely to be considerable.
Both parties have considered the appropriate level of contact, if the children continued to live in Melbourne. To her credit, in that event, the mother concedes that each period of contact between the father and the children should occur in Darwin. This is a considerable concession on her part, as in the past she has not considered it appropriate for the children, especially the two younger ones, [C] and [H], to travel so far away from her, during periods of contact. At present, she considers that there should be two periods of contact each year as follows: firstly for 3 weeks, which would allow for Christmas Day to be alternated between the parties each year in the December/January school holidays; and secondly for the whole of the mid year holiday of
2 weeks in June/July. It is her position that at the present time, given their ages, it is not appropriate for the children to spend any other periods of block contact with their father, particularly in the April or September holidays, as he seeks. She regards such contact as potentially stressful for the children, as they will have to adapt to travelling to Darwin and then returning to school in a fairly short period of time. She would also like to have an opportunity to spend some holiday time with the children, either at her home or at some destination close by, such as Warrnambool. She does not rule out the possibility of extending the periods of block contact, particularly at the end of the year, once the children are older. Her major concern is [C] and [H], who have no real experience of being away from her for any extended periods of time.
Although, she continues to have considerable concerns about the children being exposed to firearms and hunting whilst in the company of their father, the mother does not propose any significant restrictions on the father’s contact to the children, except that he should take holidays during his periods of block contact. Something with which he agrees. Otherwise the mother concedes that it is not appropriate she puts any strictures on what the father does with the children during his periods of contact. However, she would like to be close at hand in the event of any difficulties occurring during contact, particularly any difficulties involving either [H] or [C].
To this end, she proposes travelling with the children to and from Darwin, during every period of contact. She has one relative, who continues to live in the Darwin area, an uncle. He lives at [omitted]. She proposes staying with him, where she would have access to a motor vehicle. She proposes that Mr G would accompany her. In her words, she and Mr G would do “their own thing”, but would be available to reassure the children if problems occurred. She is willing to pay the full costs of the children’s travel to and from Darwin on one occasion each year. She proposes that the father pay the travel costs of the children on the other occasion each year. She and Mr G would bear their own personal travel expenses. She envisages that such an arrangement would continue until [H] reaches the age of about 5 or 6.
Neither the mother nor Mr G were closely cross-examined about their current financial position. The mother was not willing to disclose her full financial position and counsel for the father did not press her in this regard. As has already been indicated, Mr G is presently unemployed, although in the past he has been a [occupation omitted] and is currently seeking employment. Accordingly, it does not seem that the mother and Mr G are in a particularly strong financial position. The mother deposed that she and Mr G would be able to afford the necessary airfares involved in her proposal with careful budgeting and planning. I accept this evidence and, as I have already indicated, accept that the mother has an ongoing commitment to ensuring that contact takes place in future.
The father proposes that there should be at least three periods of contact each year in Darwin and that the parties should share the children’s costs of travelling equally between them. It is his position that he should have contact for the whole of the December/January school holiday commencing this year and each alternate year thereafter; and for half of the December/January school holiday period in the other alternate year; as well as the whole of the June/July and September/October holiday in each year. It is his position that given the mother’s conduct in the past and the need for the children to have extended periods of time in the Top End to establish relations with their extended family as well as to be exposed to indigenous culture in the Top End, it is only appropriate that there should be such extended periods of contact. He argues that if the mother can afford to pay for herself and Mr G to travel to Darwin on two occasions each year, it is only right and proper that the monies that will be potentially expended in this way, should be rather used to pay for the children to have longer periods of contact with him.
As has already been noted, in her report Ms Bult recommended that there be contact on two occasions in Darwin to allow the children adequate time with their father and extended family in the Top End. She proposed two occasions, on the understanding that this was likely to be the maximum number of visits the parties’ finances could accommodate. In cross-examination, she was asked to contrast the parties’ two proposals and proffer a view as to which of them she preferred from the perspective of the children’s best interests. She believed that it would be significantly beneficial for the children to have as many periods of extended contact with their father as possible. However, she also believed that it would be appropriate for them to have an opportunity to have a holiday with their residence parent. Bearing in mind the climate in southern Australia, she believed that, on balance, it would be beneficial for the children to have a holiday with their mother in one of the warmer periods of the year.
In my view, the mother’s proposals in respect of contact are reasonable and well considered. I have some apprehension about the two younger children, [C] and [H], travelling to Darwin for contact, given the considerable period of time that has elapsed since they last saw their father and their presently tender ages. In my view, it would be helpful if the mother accompanies the children to and from Darwin and was available to reassure them if difficulties occurred. In all the circumstances of this case, I do not believe that her proposal can be criticised as being unduly restrictive of the father or over protective of the children concerned. I believe that the presence of the mother in the general area of the Top End, during at least the first two periods of contact, will be of considerable assistance in ensuring that the contact runs smoothly.
It will undoubtedly be a considerable financial burden for both parties, but particularly the mother, to ensure that contact takes place. The father is critical of the mother for wishing to spend monies for her own and Mr G’s travel to and from Darwin, rather than applying those funds to the children’s costs of travel. It is incumbent upon me to consider both the practical aspects of contact and the mother’s feelings in respect of it. As I have already indicated, I believe that the mother’s presence in Darwin during contact will facilitate the implementation of the contact. I also believe that the fact that she is in some proximity to the children, will ease her concerns about the contact. In any event, given their ages, the children will have to be accompanied by an adult on commercial flights, for at least the next couple of years. In my view, these are factors that militate in favour of the mother’s proposal. I also believe that it is appropriate that the children have an opportunity to spend some holiday time with their mother.
Sadly, in this case, the parties live many thousands of kilometres apart. Neither of them are in a strong financial position. Inevitably, due to the fact that they have been living in East Geelong for sometime now and are attending school there, the children will have formed friendships with children in their neighbourhood. In such circumstances, it also seems appropriate that the children have the opportunity of spending some part of their holidays with their peers. In my view, it would also be inappropriate to unduly overburden the children with contact commitments at this stage. I am also conscious of the fact that to impose to many periods of contact each year, will potentially create an obligation that the parties are unable to fulfil.
e) The capacity of each parent to meet the children’s needs
The capacity of a parent to care for the needs of a child may be reflected in that parent’s conduct and attitudes to others, including to the other parent. A parent who, deliberately and without reasonable cause, removes a child from contact with the other parent will generally be regarded as having acted contrary to the best interests of the child or children concerned.[3] In this case, there can be no doubt that the mother deliberately embarked upon a course of conduct that had the effect of removing the children concerned from their relationship with their father. She compounded her act by concealing the whereabouts of the children from the father for an extended period of time. As a result of her behaviour, the father is entitled to feel aggrieved.
[3] See Schenck & Schenck (1981) FLC 92-023 at page 76,240
However, as in all cases, the best interests of the children remain my paramount concern and the conduct of the mother is only relevant to the extent that it bears upon the best interests of children concerned. The best interests of the children are to be determined having regard to what each parent can offer in respect of the care and upbringing of the children. Apart from her action in removing the children from Darwin, in my view, the evidence indicates that the mother is an exemplary parent. I accept that she is devoted to the welfare of the children concerned. I also accept that to a large degree, as a result of her grief at the loss of her twin babies in December of last year, she has realised the significance of her behaviour, so far as both the father and more importantly, the children are concerned. She has much to offer the children. She was their primary attachment both before and after her departure for Melbourne. Given [C]’s age at the time of the parties’ separation and the fact that [H] was born after the parties separated, there can be no doubt that the mother is the principle source of emotional support for these two children. In all the circumstances, I view with some trepidation, the father’s proposal that the children be relocated from East Geelong to Darwin. In my view, of the two parties, the mother is far better placed to provide for the emotional needs of these four children.
Although she has behaved reprehensibly in removing the children from Darwin, without the father’s consent, and then has actively concealed them from him, it is not appropriate to change the residence of the children in order to penalise her. Such an action would be contrary to the children’s best interests.
I was also impressed with the mother’s diligence so far as the children’s educational needs were concerned. The mother, quite frankly, deposed that she herself had not done particularly well at school and, as a result of her own failings, was anxious for the children to do as well as possible at school. To this end, she has arranged appropriate schooling for the children in East Geelong and my impression of her was that she was strongly supportive of the children doing well at school. I accept Ms Bult’s assessment that the children are a credit to the mother. They are pleasant, sociable children.
I can well understand why the father would want the children to live with him in Humpty Doo. As a result of what has happened in the past, he remains deeply suspicious of the mother. I also have no doubt that he loves each of the children very much. In those circumstances, I can understand why he would believe that the only way in which he can express his love for his children and maintain his relationship with them, is for the children to come and live with him. He concedes that this would be initially emotionally traumatic for the children, but they would in turn “get over it”. No doubt both he and Ms B would be available to comfort the children through this difficult transition, but, in my view, the father glosses over these difficulties to a large degree. The potential consequences of the move for [C] and [H] in particular are considerable and most certainly have implications for their long term emotional well being and development.
f) The children’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)
The matters to be considered under this heading form one of the more significant aspects of the father’s case. He is of Aboriginal descent and proudly identifies as such. He wishes the children to be able to explore their Aboriginal heritage and extended family connections in the context of the Top End of the Northern Territory, where he and his family live. He believes that merely to provide the children with information and knowledge about indigenous culture generally, outside of this environment, will be essentially meaningless for them and even potentially harmful, if the children are provided with knowledge that is not applicable to the indigenous people who live in and around the
Top End. At the core of his argument is a recognition that Aboriginal culture throughout this country is not necessarily homogeneous, but is distinguished from one area to another by, amongst other factors, geographical features; linguistic differences; and different cultural practices and food gathering techniques.[4]
[4] See Re CP (1997) FLC 92-741 at 83,987
Section 68F(2)(f) is consistent with Article 30 of the United Nations Convention on the Rights of the Child which, affirms the rights of indigenous people to “enjoy” their own culture and to speak their own language. In this case, neither the father nor any of the children speak any language other than English. Accordingly, this is not a case where the actions of the mother have removed the children from their linguistic tradition, rather it is one which is concerned with the potential loss to the children of kinship; the opportunity to identify themselves from an indigenous point of view; and to follow cultural practices within country to which they have a connection.
The subsection itself speaks of the “need to maintain a connection with the lifestyle, culture and traditions of Aboriginal people”. In the context of the use of the word “maintain” in the sub-section, it is in my view relevant to consider the extent of the children’s connection to Aboriginal lifestyle, culture and traditions prior to their removal from the Top End. In this context, the evidence of the mother is relevant.
It is the mother’s position that, prior to the parties’ separation, the children had little connection with their Aboriginal heritage. Clearly, this is the case in respect of [C] and [H], who have had very little contact with their father. In respect of the two older children, it was the mother’s evidence that she and the father took several trips to Kakadu with the boys. She described these as being essentially sight seeing trips, taken with members of her family, who were visiting the Northern Territory at the time. On at least one occasion the parties stayed at a hotel in Jabiru. They did however visit one of the father’s relative at Patonga and went fishing. From the father’s point of view, the major exposure of the children to Aboriginal culture was during fishing, hunting and other expeditions with him. These activities seemed to have engaged the father mainly and not other members of his family, extended or otherwise. There is no evidence to indicate that the children spent any significant periods of time in Maningrida or with extended kin within that area or indeed at Humpty Doo. The father did not call any specific evidence in this regard or any anthropological evidence. As has already been indicated, although many Aboriginal people do shoot, fish and hunt, these are not exclusively indigenous activities within the Top End of the Northern Territory.
In particular, the father did not provide any specific evidence of the kinship network into which the children fitted. His evidence was that he himself has kinship with a large family, as a result of his father’s adoption at Maningrida. I am uncertain from the father’s evidence as to how he precisely connects to the country around Maningrida, as a result of kinship connections, although I accept he knows the country well. The relationship, although clearly an important one to him, appears to be somewhat looser than one of direct kinship.
As Ms Bult observed, the father’s wish to become more involved in ceremonial aspects of his culture seems to have grown in recent years. He chose not to go through a ceremony when he was younger. This is a matter that he now regrets, although, fortunately he will have the opportunity to go through the ceremony at a later stage. The exact nature of the ceremony has not been specifically described to me and it is not appropriate that I be specifically informed. However, it seems clear that the children will most probably have an opportunity to go through some form of ceremony, at their own option, once they are older. This is not a case where involvement in such a ceremony appears to be mandatory for the children. The children are not as connected to kin at Maningrida that it is demanded of them that they go through the ceremony.
Of the greatest importance to the father is the opportunity to take the children onto country throughout the Top End, in a general sense, and teach them the bush skills and knowledge, which he himself acquired from his grandfather and father. This knowledge is a melange of traditional and more conventional information, involving as it does the use of firearms; the slaughter and butchering of feral animals; as well as the collection of bush tucker. These all involve an active experience and are ones that cannot be easily learnt about in a passive sense at school or through books. I accept that they are all part of an Aboriginal lifestyle, particularly in the Top End of the Northern Territory, although not all aspects of this lifestyle are exclusively enjoyed by Aboriginal people. However, the father, to a large extent, derives his identity from these activities and in turn, it is important that the children engage in them to some extent.
I accept what Moore J said in Brown & Ferguson[5] when she discussed the meaning of the word “connection” for the purposes of s.68F(2)(f) and said as follows:
“As I see it, the requirement to maintain a connection to their (Aboriginal) lifestyle, culture and traditions involves an active view of the child’s need to participate in the lifestyle, culture and traditions of the community to which they belong. This need, in my opinion, goes beyond a child being simply provided with information and knowledge about their heritage but encompasses an active experience of their lifestyle, culture and traditions. This can only come from spending time with family members and community. Through participation in the everyday lifestyle of family and community the child comes to know their place within the community, to know who they are and what their obligations are and by that mean gain their identity and sense of belonging.”
[5] Brown & Ferguson Unreported decision of Moore J number BR8668 of 1996 delivered the 23rd of February 1998
The extent of the involvement of the father’s adopted Maningrida family with him specifically in hunting and other associated activities is difficult to gauge. I accept however that the father is closely involved in these activities with his brothers. There is also evidence that members of his Maningrida family visit his home in Darwin from time to time and he has a sense of obligation to them, when they do come to stay. Potentially, the actions of the mother have deprived the children of a vast range of kin, who are able to provide them with social and emotional support and spiritual training. Although, the father’s evidence is not particularly specific in this regard.
At the end of the day, the need for a child to maintain his or her connection with the lifestyle, culture and traditions of Aboriginal people, when taken in connection with the principles set out in s.69B, are a statement of the optimum outcome in each case. The optimum outcome is not always possible in every case. My responsibility is to weigh and balance the various factors in section 68F(2) to reach the outcome, which I think is the one best calculated to lead to the children’s best interest being served. The need of the children to maintain their Aboriginal connections is one of many factors in this regard and is not to be accorded any special pre-eminence. In this case, I have viewed the previous level of connection that the children have enjoyed to Aboriginal culture, through their father, and have reached the conclusion that the children will be able to maintain this connection by having regular periods of block contact with him. I do not believe that it is likely to be in their best interests to change their existing living arrangements in order that they may become more familiar with their extended kin in the Top End. In my view, up to this stage, their connection with this kin has been somewhat loose. That is not to diminish the potential of these relationships as the children grow older, particularly in regards to developing their sense of identity as Aboriginal individuals.
The father is critical of the mother’s endeavours in regards to the exposure of the children to Aboriginal culture whilst in Victoria. He believes that this may have the potential for the children to “learn the wrong stories”. The mother was at pains to point out in her evidence that she considers all of the children to be Aboriginal. Obviously, identifying as an Aboriginal person does not depend on the speaking of language or in the adoption of any particular mode of life. Sadly, it is to a certain extent inevitable that children of a mixed racial heritage, particularly an Aboriginal one, will confront some form or racism or prejudice, as they grow older. The greatest protection against the harmful effects of such prejudice is the inculcation of a sense of pride in the child of the various racial clements of his or her make-up. In this case, I do not get a sense that the mother is unsupportive of the children’s rich cultural heritage or is dismissive of it in any way. Although the father does not believe that the education the children are receiving in Victoria is necessarily appropriate, it is useful for the children in providing them with some validation of their racial origins and worth. However, I accept that such education is no substitute for active participation in an Aboriginal lifestyle.
In B & R & the Separate Representative[6], the Full Court of the Family Court after considering research literature and the common experience of many Aboriginal people identified a number of issues relating to Aboriginal identity. The Court said as follows:
“Aboriginal children often suffer acutely from an identity crisis in adolescence, especially if brought up in ignorance of or in circumstances which deny or belittle their Aboriginality. This is likely to have a significant impact upon their self esteem and self identity into adult life.”
[6] B & R & the Separate Representative (1995) FLC 92-636 at page 82,398
These problems are particularly exacerbated if Aboriginal children are brought up in an exclusively white environment. However, in this case, the children are not totally without appropriate Aboriginal role models in Victoria nor, in the form of their mother, do they have a parent, who is likely to deny their Aboriginal identity. The evidence is not such that I can reach the conclusion that the children are being brought up in ignorance of their background or Aboriginality. In fact, the evidence is to the contrary. Regular periods of contact with their father in the Top End, which the mother supports, will also have the effect of introducing the children to positive aspects of Aboriginal culture.
g) The need to protect the children from physical or psychological harm caused by abuse or ill treatment, violence or other behaviour
In this case, neither party would willingly expose the children to any risk of violence, abuse or ill treatment. Although they have different parenting styles, they are both clearly loving and devoted parents.
h) The attitude to the children and the responsibilities of parenthood
I have already made reference to the conduct of the mother in removing the children from Darwin, as being behaviour that demonstrates a poor attitude to the responsibilities of parenthood. However, apart from this factor, both parties have demonstrated a positive attitude towards the responsibilities of parenthood. One of these responsibilities is to provide financial support for the children concerned. Counsel for the mother is critical of the father for failing to pay child support for the youngest of the children, [H]. In a strict legal senses, he has no obligation to pay, as there is no current assessment in respect of [H]. The mother has never sought such an assessment. In these proceedings, no issue was raised in respect of the paternity of [H], although the father maintains some lingering doubt as to whether or not he is the father of the child. In his evidence, he did not rule out the possibility that the mother had been “playing about”, when [H] was conceived. In his view, the issue of child support would only ever be finally resolved if there were formal parentage testing procedures undertaken. Neither party seeks such an order. Accordingly, there is a certain tension between the two positions, as advocated by the father, in respect of [H]. On the one hand, he regards her as his daughter and wishes to have contact with her and, on the other hand, he has some doubts as to her parentage and is not willing to pay any child support. However, the mother has never included him on the child’s birth certificate and, unlike the three other children, in [H]’s case the mother has adopted the surname Wall for her. In my view, the behaviour of neither of the parties in respect of this issue exhibits a particularly strong regard for the responsibilities for parenting. However it is not, in my view, a particularly important aspect of this case.
i) Any family violence involving the children or a member of the children’s family
There is no suggestion that any of the children have been exposed to family violence.
j) Any family violence order that applies to the children or a member of the children’s family
There are no such family violence orders in this matter.
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 children
Parenting orders are never final in the sense that children and their parent’s circumstances change. As a result, arrangements need to alter as a consequence of those changes. However, as far as possible, it is desirable that orders be made that will minimise the prospect of the parties seeking further orders from the Court in future. Litigation is costly in both financial and emotional terms and does nothing to encourage an easy parenting relationship between the parties concerned.
Two of the children concerned in this case, [C] and [H], are still young and their relationship with their father is as yet undeveloped. Although, the evidence of Ms Bult is that all the children are confident and outgoing, I am concerned about the possible impact on [C] and [H] of travelling to Darwin to have contact with their father. For reasons already provided, I have determined to be somewhat cautious about the level of contact at this stage. However, the mother does not rule out the possibility of an extension to contact once the children are older. Finality cannot always be achieved in every case. This is especially so in cases involving young children.
However, on balance, I am of the view that to make orders that the children continue to reside with their mother and have two defined periods of contact with their father each year is, on balance, the outcome that is least likely to lead to the institution of further proceedings in future.
Conclusions
The most important factor in this case is that the children concerned have been in the sole care of the mother since 1997. There is no evidence to indicate that they are at risk of any emotional or other harm if this state of affairs continues. On the other hand, there is evidence that to change this arrangement, at this stage, holds grave risks for their emotional well being, especially in the case of the two younger children, [C] and [H]. Apart from her conduct in unilaterally removing the children from Darwin, the mother has shown herself to be an exemplary and caring parent. However, I accept that since these proceedings began, it has been brought home to her that she has behaved in a reprehensible manner. However, her deeds in this regard cannot now be undone. In particular, it is not appropriate to punish her past behaviour at the expense of the children, by changing the long standing arrangements for their care.
To a large degree, the mother’s conduct has deprived the children of an opportunity to develop a relationship with their father. Fortunately, in the case of [J] and [M], the bond between father and sons remains strong. The evidence in respect of [C] and [H] is more problematic. However, I have reason to be confident that, in their case, the bond is not beyond repair.
Of great significance in this case, is the deprivation by the mother from the children of them having an opportunity to feel that they belong to an extended Aboriginal family and community. As I have already said, this is one factor amongst several and, although important, does not have pre-eminence over the other factors as set out in section 68F(2). Although not the optimum outcome, I am satisfied that the children will be able to maintain their connection with the lifestyle, culture and traditions of the Aboriginal people of the Top End and, in particular, the Maningrida area, through biannual contact visits with their father in Darwin.
I must also bear in mind that the children live in East Geelong and it is only understandable that the mother would want to spend at least some of the holidays with the children, in their home environment, as well as having the opportunity to spend some special holiday time with her at some other location. In my view, I must also be cautious in respect of the extent of contact, given the ages of the children concerned and the not inconsiderable period of time that has passed since they last had contact with him. I appreciate that the father will be greatly disappointed at this result. However, I am of the view that this regime will result in the outcome that is likely to be in the best interests of the children concerned.
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 four (104) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Lynnette Chin
Date: 11 July 2003
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