U v N - [2010] WASCA 106

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: U -v- N [2010] WASCA 106

CORAM: PULLIN JA
NEWNES JA
MURPHY J

HEARD: 4 MAY 2010

DELIVERED : 18 JUNE 2010

FILE NO/S: CACV 63 of 2009

BETWEEN: U
Appellant
AND
N
First Respondent
PACY SOLICITORS
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA
Coram  :CROOKS J
Citation  :N and U [2009] FCWA 46
File No  :PT 4825 of 2004

Catchwords:

Appeal from discretionary decision - Practice and procedure - Extension of time for appeal - Whether the appeal has a reasonable prospect of succeeding

Legislation:

Family Court Act 1997 (WA), s 66, s 66A, s 66C, s 71A, s 202A, s 202B, s 202D, s 202L

Result:

Leave to extend time refused

Category: B

Representation:

Counsel:

Appellant:     Mr S A Walker
First Respondent           :     No appearance
Second Respondent      :     No appearance

Solicitors:

Appellant:     Western Legal
First Respondent           :     Macdonald Rudder
Second Respondent      :     Pacy Solicitors

Case(s) referred to in judgment(s):

Davis v Davis (2007) 38 Fam LR 671
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
Hort v Verran [2009] FamCAFC 214
M v L (Aboriginal Culture) (2007) 37 Fam LR 317
Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605
Marriage of B and R (1995) 19 Fam LR 594
Monteleone v Owners of the Old Soap Factory [2007] WASCA 79
N and U [2009] FCWA 46

JUDGMENT OF THE COURT:

Introduction

The appellant appeals against a decision of the Family Court of Western Australia concerning an application for parenting orders for a child.
The appellant is of Aboriginal descent and is the mother of the child, who was born on 26 May 2003. The first respondent is a permanent resident of Australia and of Fijian descent and is the father of the child. The second respondent was the independent children's lawyer who represented the child at the hearing below.
Each of the appellant and the first respondent is, and at all material times was, married, but not to each other. The appellant and first respondent had a relationship in which the child was conceived. They never lived together.
The first respondent saw the child on two occasions shortly after her birth but, thereafter, the appellant and her husband opposed his efforts to establish a relationship with the child. The child only knew the appellant's husband as her father. The child lives in the Goldfields area with the appellant and her husband. The first respondent lives in Wiluna with his wife and their teenage daughter.
The first respondent sought orders that the parties engage a suitable counselling organisation to prepare the child to be informed of her biological father with a view to spending time with him, initially to be supervised by the counsellor. The independent children's lawyer supported the first respondent's application. The appellant opposed the first respondent having any contact with the child.
At the hearing the mother was represented and gave evidence by way of affidavits and cross‑examination. She sought an order that the first respondent's application be dismissed and that no order be made for the child to spend time with the father. The independent children's lawyer sought an order that the parties engage a counsellor to assist the child to learn of her biological father and for the father to have limited supervised time with the child, and that the appellant and her husband be restrained from, in effect, denigrating the father in the presence of the child. The independent children's lawyer relied upon an affidavit by a clinical psychologist, who had been appointed as a single expert to prepare a report for the court.
Crooks J held (N and U [2009] FCWA 46) that it was in the best interests of the child to have the opportunity to establish a close and loving relationship with the first respondent and members of his family (reasons [110]) and ordered that the parties engage a counselling organisation to assist the child and father to establish a relationship and thereafter the father spend supervised time with the child up to a maximum of two hours per fortnight. His Honour also granted an injunction restraining the appellant and her husband from discussing with the child any allegations made against each party in the proceedings and denigrating any party to the proceedings, or members of their families, or allowing any other person to do so, to or in the presence of the child.
The notice of appeal was lodged approximately two months out of time and on 18 January 2010, Newnes JA referred the application for an extension of time within which to appeal to the hearing of the appeal. The affidavit in support of the application, sworn by the appellant's solicitor, is to the effect that he was first contacted about a possible appeal approximately one month after the time to institute an appeal had expired, and that it took a further month, in which, inter alia, counsel's preliminary advice was obtained and he received final instructions, before he was in a position to lodge the appeal.

Ground of appeal and orders sought

It is alleged that the learned trial judge erred in law by failing to:
(a)have regard to the principle that the child the subject of the orders has a right to enjoy her Aboriginal culture, including the right to enjoy that culture with other people who share that culture, and to have the support, opportunity and encouragement necessary to develop a positive appreciation of it;
(b)consider the likely impact of the parenting orders which his Honour made on the right of the said child to enjoy her Aboriginal culture; and
(c)have regard to the kinship obligations and child‑rearing practices of the said child's Aboriginal culture.
The appellant seeks the following orders:
(a)The appeal be allowed.
(b)The orders made on 18 May 2009 by the Family Court of Western Australia be set aside.
(c)The application of the first respondent for parenting orders be dismissed, or, alternatively, be remitted to the Family Court to be dealt with according to law.

Principles

The relevant principles were not in dispute in relation to an appeal from a discretionary decision of this kind. In Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, 534 ‑ 535 Aickin J said:
Those principles have been stated in this court on many occasions and are not in doubt. It is sufficient to refer to such cases as House v The King [(1936) 55 CLR 449], Evans v Bartlam [[1937] AC 473], Storie v Storie [(1949) 80 CLR 597] and Lovell v Lovell [(1950) 81 CLR 513]. Two short passages make the position clear. In House v The King [(1936) 55 CLR 499 at 504 ‑ 505] Dixon, Evatt and McTiernan JJ said:
'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.'
In Lovell v Lovell [(1950) 81 CLR 513 at 519] Latham CJ said:
'But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharpe v Wakefield [[1891] AC 173 at 179]) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court. The words used by their Lordships in the House of Lords in this connection are not always easy to apply, but they ought not to be read as denying the long established principle (which, indeed, is expressly recognized in the cases in the House of Lords) that on an appeal from an order founded upon the exercise of a discretion the appellate tribunal has no right to substitute its discretion for the discretion entrusted to the primary tribunal.'
See also Gronow v Gronow per Stephen J (519 ‑ 520) and Mason & Wilson JJ (525); Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605, 614; Monteleone v Owners of the Old Soap Factory [2007] WASCA 79 [36].

The statutory scheme

The application below fell to be considered under pt 5 of the Family Court Act 1997 (WA) (the Act). The following provisions are relevant:
66.Object of Part and principles underlying it - FLA s. 60B
(1)The objects of this Part are to ensure that the best interests of children are met by ‑
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a 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 to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly 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; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subsection (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right ‑
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary ‑
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)to develop a positive appreciation of that culture.
66A.Child's best interests paramount consideration in making a parenting order - FLA s. 60CA
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
66C.How a court determines what is in a child's best interests - FLA s. 60CC
(1)Subject to subsection (6), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are ‑
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(3)Additional considerations are ‑
(a)any views 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 views; and
(b)the nature of the relationship of the child with ‑
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
and
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; and
(d)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 (including any grandparent or other relative of the child), with whom he or she has been living;
and
(e)the practical difficulty and expense of a child spending time with and communicating 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; and
(f)the capacity of ‑
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child),
to provide for the needs of the child, including emotional and intellectual needs; and
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; and
(h)if the child is an Aboriginal child or a Torres Strait Islander child ‑
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
and
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; and
(j)any family violence involving the child or a member of the child's family; and
(k)any family violence order that applies to the child or a member of the child's family, if ‑
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
and
(l)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; and
(m)any other fact or circumstance that the court thinks is relevant.
(4)Without limiting subsection (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents ‑
(a)has taken, or failed to take, the opportunity ‑
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
and
(b)has facilitated, or failed to facilitate, the other parent ‑
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child;
and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(5)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
(6)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
(7)For the purposes of subsection (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right ‑
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary ‑
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)to develop a positive appreciation of that culture.
…
71A.Application to Aboriginal or Torres Strait Islander children ‑ FLA s. 61F
In ‑
(a)applying this Part to the circumstances of an Aboriginal or Torres Strait Islander child; or
(b)identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child,
the court must have regard to any kinship obligations, and child rearing practices, of the child's Aboriginal or Torres Strait Islander culture.
...
202B.Principles for conducting child‑related proceedings ‑ FLA s. 69ZN
(1)The court must give effect to the principles in this section ‑
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b)in making other decisions about the conduct of child‑related proceedings.
...
(5)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
...
(8)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

The judge's decision

The judge undertook a detailed and comprehensive review of the evidence having regard to the relevant statutory considerations which he was required to consider. In addressing the consideration in s 66C(3)(d) he said:
74[The child psychologist] considered this issue at page 5 of his report where he observed:
'Should the child establish a relationship with her father and his family, the effect will depend on how the mother and her family manage the introduction of this relationship.
75[The child psychologist] was also asked about the effect on [the child] of being separated from the mother. He noted at page 9 of his report that any immediate or long-term separation of [the child] from the mother would negatively affect her emotional development. He says, however, that should [the child] be introduced gradually to the father and to his family, then separating [the child] from the mother 'for a short time should not have a significant impact on her development'.
76As an example, [the child psychologist] said that, if the mother and her family had a positive attitude to the introduction of the relationship between [the child] and the father and assisted [the child] in developing that relationship, it would be positive for the child and she would have 'an additional family to support her with her developmental needs, both now and later in life'. He further says that if the mother and [the appellant's husband] handled the introduction of the relationship in a negative way, there 'would be considerable difficulties in terms of establishing such a relationship between the child and her father'. [The child psychologist] noted that 'at this stage the mother refuses to allow the father to have contact with the child and it is likely to make it difficult for the father to establish a relationship with the child.' I accept [the child psychologist's] evidence.
77[The child psychologist] was also asked about the affect [sic] on [the child] of not establishing a relationship with the father and his family. After noting there would be no affect [sic] on [the child's] development if she does not establish a relationship with the father and [the first respondent's wife] as she would not know them and would simply be brought up with the mother and [the appellant's husband], [the child psychologist] says at page 6 of his report:
'However, [the child] may, during her teens, or as a adult, question why she never had contact with her father, and she might experience a variety of negative emotions (disappointment/anger/resentment) towards the mother for not encouraging a relationship between her - more so if she decides to have establish a relationship with the father during this time.'
78When cross-examined, [the child psychologist] said that it was normal for children to have a 'natural curiosity' and would usually want to know the identity of their natural parents.
79According to [the child psychologist], [the child] is likely to find out the identity of her natural father and at some point the mother is likely to be faced with having to answer the question about her paternity. I accept his evidence.

The judge expressly referred to the considerations in s 66C(3)(g) and (h) of the Act and said:
89[The child] is of aboriginal and Fijian descent. The mother is from the martu people. The father and [his wife] have worked for aboriginal communities for a number of years and I accept they respect and are very fond of aboriginal people.
90I am satisfied that orders which provide for [the child] to establish a relationship with the father and his family will enable [the child] to learn of her Fijian heritage and give her the opportunity to enjoy the Fijian culture by associating with people who share that culture.
91I am also satisfied that [the child] would benefit from being exposed to both aboriginal and Fijian cultures.
Also relevant in this context, although made with particular reference to s 66C(3)(c), is the judge's finding at [73] of his reasons:
73The father says that he wants [the child] to know her natural father. He appeared genuine when giving this evidence and spoke from the heart. I am satisfied that in bringing his application, the father has no desire to damage or interfere with [the child's] relationship with the mother and I accept that if the father is given the opportunity, he will support and foster the relationship between [the child] and the mother.
The judge's conclusions included the following:
100In making a parenting order, I must apply a presumption that it is in [the child's] best interests for her parents to have equal shared parental responsibility for her. This relates not to the time [the child] may spend with her parents but to the responsibility for decision making. This presumption may, however, be rebutted if I am satisfied that it would not be in [the child's] best interests for her parents to have equal shared parental responsibility.
101The father does not seek equal shared parental responsibility for [the child]. In any event, I am not satisfied it is in [the child's] best interests for the parties to have equal shared parental responsibility. In my opinion, there is presently no prospect that the mother and father will be able to work together to reach decisions concerning long-term issues affecting [the child].
102This case raises difficult issues. The mother wants the father to have no involvement whatsoever in [the child's] life and her counsel submits an order for [the child] to spend time with the father will cause the mother, her family and [the child] a good deal of distress. In reaching my decision, [the child's] best interest must, however, remain the paramount consideration and rank above the desires of both parties.
…
108I accept that the mother opposes the father having any opportunity to build a relationship with [the child] which is a decision supported by [the appellant's husband] who wants [the child] to grow up, at least until her late teens, believing he is [the child's] natural father. I also accept the mother genuinely believes it would not be good for [the child] to be told that [the appellant's husband] is not her natural father at this stage and for orders to be made for [the child] to spend time with the father.
109The strength of the mother's opposition to the father's application is such that the mother, supported by [the appellant's husband], may choose not to comply with the order and this may lead to further proceedings between the parties. Furthermore, I accept there is also the risk that the mother will be distressed by the making of orders aimed at introducing [the child] to the father and this may have a detrimental impact on [the child] by causing anxiety in the mother's household.
110I am satisfied, however, that these risks are outweighed by the benefits to [the child] of having an opportunity to establish a close and loving relationship with her biological father and members of his family, which in my opinion is in her best interests.
111I do not intend at this stage to consider making any final orders for [the child] to spend unsupervised time with the father. I intend to make orders substantially as proposed by the Independent Children's Lawyer at the conclusion of the trial which require the parties to engage the services of an appropriate counselling organisation to prepare and assist [the child] to establish a relationship with the father and thereafter for [the child] to spend supervised time with the father. The matter is then to be relisted before me when consideration can be given to [the child] spending unsupervised time with the father on an ongoing basis.

The appellant's submissions

In substance, the appellant's argument was that the judge failed to have regard to a relevant consideration, namely, the provisions of s 66C(3)(h) of the Act. The appellant contended, in effect, that whilst the judge had referred to s 66C(3)(h) in his reasons (see [14] above), in substance he failed to exercise the discretion entrusted to him in that he failed to find that the contact envisaged by the judge's orders could potentially adversely affect the child's sense of her Aboriginal identity and culture.
Counsel conceded that the appellant had not adduced any evidence at the hearing in support of that proposition, but said that the judge should have made the finding on the basis that the appellant was an Aboriginal with connections to Aboriginal culture and lifestyle, and that the first respondent and his wife were of Melanesian descent and lived a considerable distance from the appellant. Alternatively, the appellant's counsel said that if the finding for which he contended could not properly have been made by reference to those matters, the judge failed to exercise the discretion entrusted to him by not adjourning the proceedings and requiring the appellant to obtain such evidence, or by failing to take steps himself to cause such evidence to be procured. In this regard, the appellant's counsel referred to s 202L(1) of the Act, read with ss 202A, 202B(5) and 202D of the Act.
The appellant conceded that the point that was being run on appeal was one that had not been put to the judge, and that there was no further evidence from the appellant to put to this court in relation to the finding which he said the judge should have made.
The appellant relied on a number of authorities including Marriage of B and R (1995) 19 Fam LR 594. That case concerned an application for custody of a child by an Aboriginal mother against the white Australian father. The trial judge rejected evidence in an affidavit which outlined the emotional and social trauma experienced by Aboriginal children when raised in a non‑Aboriginal environment. Custody of the child remained with the white father, and the Aboriginal mother appealed against that decision. The Full Court held that the trial judge erred in disallowing the evidence, and ordered a retrial. In Monahan G & Young L, Family Law in Australia (7th ed 2009) [8.78], to which the appellant's counsel referred, the learned author said:
The significance of B and R lies in its sensitivity to the issues, and is clear direction that evidence regarding the effects on Aboriginal children of being removed from their Aboriginal parents is relevant and ought to be carefully evaluated by the trial judge in reaching a decision as to the children's best interests. There is nothing in B and R to suggest that there should be a change in approach such that a presumption applies in favour of Aboriginal placement; indeed this would be contrary to other authority of both the Full Court and the High Court rejecting reliance on presumptions in contested child cases. Each case must still be determined on its own facts.
The appellant's counsel also relied on Davis v Davis (2007) 38 Fam LR 671. The court in that case referred to In the Marriage of B and R. His Honour's reasons were summarised in the headnote, relevantly, as follows:
(v)the importance of culture in assessing the best interests of an indigenous child is afforded special attention in the Act because of the unique needs and difficulties faced by indigenous children both historically and at the present time. The Act recognises that in order for an Aboriginal child to fully develop their identity and self‑esteem, they must be given the opportunity to develop and maintain a connection with their culture, enjoy their culture with others who share that culture, to develop a positive appreciation of their culture and to explore it to its full extent. Maintaining a 'connection' goes beyond a child simply being provided with information and knowledge about their heritage and encompasses an active experience of their lifestyle, culture and traditions, which experience can only come from spending time with family members and community.
Counsel for the appellant also referred to M v L (Aboriginal Culture) (2007) 37 Fam LR 317. In that case, the trial court had concluded that the children, of Aboriginal parents with different indigenous cultures and communities, should reside with the father. The trial court considered that the children would be best off with the father if they were fully immersed in the father's culture in a remote community in the Northern Territory, rather than being brought up by the mother as fringe dwellers in an urban community. Kay J said [43] ‑ [45]:
In this case the prospect of the children being able to being [sic] frequently exposed to the company and culture of the absent parent is made all the less likely by the tyranny of distance and the significant lack of resources in either household. The court must accept that these children cannot be maximally exposed to two different lifestyles and cultures. It needs to choose in which parent's care the interests of the children will be best advanced. It must do so by acting upon the evidence available.
If there is a serious deficiency in that evidence the court can and ought make enquiries of the parties’ representatives as to how that deficiency can be alleviated, and if necessary adjourn the further hearing to enable the evidence to be presented. It cannot speculate nor presume what that evidence might otherwise be. In this case there was no case properly mounted by the father that the mother's care for the children was inadequate.
No witnesses were called to support that assertion. Concessions were made that the mother loved her children and parented them appropriately. By way of stark contrast there was ample evidence of the father's violent behaviour and alcohol abuse. These matters seem to have been almost put to one side and matters aimed at maximising the children's opportunity to become immersed in their patrilineal culture became [the] dominant consideration.
Kay J concluded [63]:
It seems to me that the judgment is unsustainable due to the unsupported finding of collective caring by the mother and the inadequate emphasis on the risk to the children posed by the father's history of violence and alcohol consumption. Issues of the primacy mother's care [sic] and the admissions that it had been entirely satisfactory were overlooked in favour of the theory that these children would be best off if they were fully immersed in their father's culture living in a remote community rather than being brought up as fringe dwellers in an urban community.
Strickland J [142] said:
Thus, given that with the mother the children would be cared for by her and not by others in the wider community, it was not possible for the federal magistrate to skate over as he did the primacy of the mother's care in the past, her greater capacity to provide for the needs of the children, and the need to protect the children from being exposed to violence by the father and to his consumption of alcohol. It could not be a case of which community would provide the better opportunities for the children in the future or which community will best meet the children’s cultural needs.
Counsel for the appellant also referred to Hort v Verran [2009] FamCAFC 214. In that case, the Federal Magistrate had ordered that the child, born of an Aboriginal mother and a father of European descent, primarily reside with the paternal grandmother, whose parents were migrants from Croatia and Italy. The appellate court rejected the mother's submission that the magistrate had failed to take into account the child's Aboriginality. The court said [122], [123] and [126]:
The thrust of the submissions on behalf of the mother in relation to the remainder of these challenges, variously expressed, was that the learned Federal Magistrate gave insufficient weight to the evidence in relation to Aboriginality. As our earlier review of the learned Federal Magistrate's Reasons for Judgment reveals, and the submissions of Counsel in the appeal confirm, the central issue in the case before the learned Federal Magistrate was whether issues of Aboriginality favouring the mother outweighed issues of stability which were found to favour the paternal grandmother. In a very carefully reasoned and balanced Judgment, the learned Federal Magistrate considered these competing and multifaceted issues.
It is significant that the exercise of discretion has not been suggested to have been vitiated by the failure to have regard to any relevant fact or circumstance. Nor has it been suggested that his Honour had regard to irrelevant facts or circumstances. Nor has it been submitted that the exercise of discretion was in reliance upon material errors of fact.
...
A brief recounting of his Honour's cogent reasoning process demonstrates that, he may have come to a different conclusion without thereby being in error. That however is not the test for present purposes. It has not been demonstrated that the conclusion the learned Federal Magistrate reached was not reasonably open to him, or that he unreasonably gave inadequate or excessive weight to any relevant fact or circumstance. His Honour clearly, and appropriately, gave the evidence of the maternal grandmother in relation to the children's Aboriginality and need for “total immersion” substantial weight. We are not persuaded that, in a finely balanced dispute, those factors were given inadequate weight.

The disposition of the appeal

In considering the appellant's submissions, the following findings of fact, which are unchallenged, need to be taken into account:
(a)the first respondent and his wife had worked for Aboriginal communities for a number of years;
(b)the first respondent and his wife respect and are very fond of Aboriginal people;
(c)the first respondent had no desire to damage or interfere with the child's relationship with the appellant;
(d)the first respondent would support and foster the relationship between the child and the appellant.
Also, the judge's reasoning needs to be considered as a whole, and in the context of the nature of the application before him and the orders made.
The application was not one involving custody of the child, or an allocation of parental responsibility for the child. The first respondent sought orders that the parties engage in suitable counselling to prepare the child to be informed of her biological father and with a view to the child spending time with the father, which was to be initially supervised by the counsellor. The first respondent did not seek sole, or even equal, parental responsibility for the child, and there was no suggestion in the proceedings that the child should not remain in the care of her mother. The judge expressly considered these matters and also found, in effect, that the appellant should retain sole parenting responsibility.
The orders which the judge made were limited in their nature and scope insofar as they concerned the child's contact with the first respondent. The orders, in substance, provided for:
(a)counselling sessions to prepare and assist the child to be informed of her biological father and to establish a relationship and to commence spending time with him;
(b)once counselling had been completed, for the child to spend supervised time with the father, up to a maximum of two hours per fortnight;
(c)liberty to apply in relation to the time to be spent with the father after not less than three months of supervised time.
In the context of the matters referred to above, there is, in the court's view, no arguable case that the judge erred in the exercise of his discretion. First, there was no suggestion in the proceedings that the child would not continue to enjoy her Aboriginal culture with her mother and with other people who shared that culture. Secondly, the judge did have regard to s 66C(3)(h) of the Act. He referred specifically to that provision and made findings to the effect that the first respondent and his wife were respectful of, and fond of, Aboriginal people and were familiar with Aboriginal communities, having worked there for several years. Thirdly, his Honour found that the first respondent would support and foster the child's relationship with the appellant. His Honour was clearly of the view that the limited contact ordered would not result in the first respondent seeking to undermine the child's appreciation of her, and her mother's, Aboriginal culture. Fourthly, the judge was required to give each of the statutory criteria due weight in the exercise of his discretion. In the exercise of that discretion, he was required to give paramount consideration to the best interests of the child (s 66A), in relation to which a primary consideration was the benefit to the child of having a meaningful relationship with both parents (s 66C(2)(a)). Amongst the additional considerations to which he was required to have regard was not only s 66C(3)(h), but also s 66C(3)(g), which was relevant to the Melanesian descent of the child. The imputation of error alleged by the appellant fails to have proper regard to the nature of the discretionary exercise involved, and the potentially competing considerations which the judge was required to consider in his overall assessment of the best interests of the child.
Fifthly, in light of the findings of fact referred to in [26] above, and the limited nature of the orders sought and granted, it is not, in the court's view, reasonably open to contend that the judge, in substance, ignored s 66C(3)(h) or misunderstood its effect. The judge's findings of fact indicate that he gave consideration to the impact of the orders on the child's Aboriginal identity and culture. The findings were to the effect that the experience and attitude of the first respondent and his wife, of and towards Aboriginal people in general and towards the appellant in particular, meant that the limited contact envisaged would not likely impair the child's right to enjoy her Aboriginal culture (s 66C(3)(h)) or impair the support necessary to explore or develop her positive appreciation of that culture (s 66(3)). His Honour also found, in effect, that the contact ordered would give the child the benefit of establishing a meaningful relationship with the first respondent, her father (s 66C(2)(a)) and, through him, her Melanesian background (s 66C(3)(g)). The level and duration of unsupervised time with the first respondent was to be worked out later, under the liberty to apply.
Sixthly, the allegation that the judge failed to find that the orders could adversely affect the child's sense of her Aboriginal culture and identity is an afterthought which lacks any proper foundation in the evidence. The facts now relied on by the appellant, that the first respondent and his wife are Melanesian, and live some distance from the appellant, and that the appellant is Aboriginal with connections to Aboriginal culture, do not, in themselves, lead to the inference that the limited orders made could operate adversely to affect the child's sense of Aboriginal culture and identity.
Seventhly, the authorities referred to by the appellant do not advance the appellant's submissions. They indicate that the child's Aboriginality, on her mother's side, is a matter that requires proper consideration in the context of the other statutory criteria, and within the overarching statutory requirement that the paramount consideration is the best interests of the child. In the court's view, the judge adopted that approach. The judge was cognisant that the orders did not alter the parenting responsibility for, or custody of, the child, and that the child, through and with the mother, would thereby maintain an active experience of the lifestyle, culture, traditions, kinship and child‑rearing practices of Aboriginal culture (cf Davis v Davis, s 66C(3)(h), s 71A).

Eighthly, there is, in the court's view, no error shown in the judge acting on the evidence which he did and in not adjourning the proceedings or requiring further evidence to be procured on the point now raised in the appeal. The parties evidently saw no serious deficiency in the evidence led at the hearing. The appellant was clearly well placed to adduce such evidence if she had thought it significant. The child's right to enjoy her Aboriginal culture, and to enjoy that right with her mother and her mother's family, were not disputed. It cannot be said that the judge erred in principle in not recognising a serious absence of evidence on a matter if the matter was not in dispute, the parties were legally represented, there was evidence available to the court which was relevant to a proper consideration of that matter and the scope and sufficiency of the evidence was not challenged, and the principles to be applied to the conduct of child‑related proceedings included that the proceedings were to be conducted without undue delay (s 202B(8)).

Conclusion

For the above reasons, in the court's view, the appeal would have no reasonable prospect of succeeding. There is, accordingly, no utility served in extending the time within which to appeal. The order should be that the appellant be and is hereby refused leave to extend the time for lodging an appeal against the decision of Crooks J made 18 May 2009.

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Citations

U v N [2010] WASCA 106

Cases Citing This Decision

0

Cases Cited

9

Statutory Material Cited

1

N and U [2009] FCWA 46

Gronow v Gronow [1979] HCA 63

Mallet v Mallet [1984] HCA 21