Verran and Hort and Verran

Case [2009] FMCAfam 1


FEDERAL MAGISTRATES COURT OF AUSTRALIA

VERRAN & HORT and VERRAN [2009] FMCAfam 1
FAMILY LAW – Children aged 8 and 6 – final arrangements for care – applicant is children’s paternal grandmother – children have been in her care since April 2006 – paternal grandmother has European ancestry – mother is Aboriginal who identifies as a Tiwi woman – cultural and heritage needs of children – connection with Tiwi cultural inheritance – protection from family violence – best interests.
Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 60D, 61DA, 65C, 65DAA, 65DAC, 68L, 68LA

Davis v Davis (2007) 38 Fam LR 671

B & R and the Separate Representative (1995) FLC 92-636
Brown & Ferguson (unreported) Family Court of Australia No.BR8668 of 1996, delivered 23 February 1998
Re: CP (1996) 21 Fam LR 486
M v L (Aboriginal Culture) (2007) 37 Fam LR
Rice v Miller (1993) FLC 92-415
Goode & Goode (2006) FLC 92-286
In the marriage of Patsalou (1994) 18 Fam LR 426
Godfrey v Saunders (2008) FLR 287

H & H (2003) 30 Fam LR 264

S Ralph “The Best Interests of the Aboriginal Child in Family Law Proceedings” (1998) 12 AJFL 140

Applicant: MS VERRAN
First Respondent: MS HORT
Second Respondent: MR VERRAN
File Number: DNC 59 of 2008
Judgment of: Brown FM
Hearing dates: 21, 22 and 23 October 2008
Date of Last Submission: 23 October 2008
Delivered at: Adelaide
Delivered on: 21 January 2009

REPRESENTATION

Counsel for the Applicant: Mr Storey
Solicitors for the Applicant: Storey & Associates
Counsel for the first Respondent: Mr Allen
Solicitors for the first Respondent: North Australian Aboriginal Justice Agency
Counsel for the second Respondent: Mr Verran in person
Counsel for the Independent Children’s Lawyer Ms Giacomo
Solicitors for the second Respondent: Ward Keller Lawyers

ORDERS

  1. The mother and paternal grandmother have parental responsibility for making long term decisions concerning the children [M] born in 2000 and [V] born in 2002 (herein after referred to as “the children”).

  2. The children live with the paternal grandmother.

  3. The children spend time with their mother:

    (a)During the school term from 4.00pm Friday until 4.00pm Sunday for three (3) weekends out of four (4) in any given week period;

    (b)For half of the school holidays as follows:

    (i)       For all the April school holidays in odd numbered years;

    (ii)For all of the September school holidays in even numbered years;

    (iii)For half of the June/July school holidays being the first half in even numbered years and the second half in odd numbered years; and

    (iv)For half of the Christmas school holidays being the first half in even numbered years and the second half in odd numbered years.

  4. The father commence such course of alcohol counselling as is recommended to him by the Independent Children’s Lawyer within four (4) months of the date of these orders and continue with such alcohol counselling until such time as the alcohol counsellor concerned provides written notification that in the aforesaid alcohol counsellor’s professional opinion such counselling is…

Continue reading Verran and Hort and Verran

Sign in free to access the full text

Details
AGLC
Verran and Hort and Verran [2009] FMCAfam 1
Case
[2009] FMCAfam 1
Decision Date

CaseChat Overview and Summary

The case of Verran and Hort and Verran involves a dispute over the care and welfare of two children, [M] and [V]. The parties involved in the dispute are the children's mother, paternal grandmother, and father. The matter was before the Family Court of Australia, which was tasked with determining the living arrangements and contact arrangements for the children. The court also had to consider various other issues raised by the parties, including the impact of family violence, exposure to Aboriginal culture, and the potential impact of racist views held by the mother.

The legal issues the court had to decide included the allocation of parental responsibility, the primary residence of the children, and the specifics of the contact arrangements between the children and their parents. The court was required to consider the evidence and opinions of various experts, including a family report prepared by an experienced social worker, Ms Pavlin. Ms Pavlin's observations and assessments of the children's welfare, the home environments provided by the mother and paternal grandmother, and the impact of family violence and other factors were critical in the court's decision-making process.

The court determined that the mother and paternal grandmother should share parental responsibility for making long-term decisions concerning the children. The children were to live with the paternal grandmother but would spend significant time with their mother, as well as with their father, subject to certain conditions. The court also imposed various restrictions and requirements on the parents to ensure the children's safety and well-being, including alcohol and drug consumption restrictions, supervision conditions for contact with the father, and prohibitions on denigrating any of the other parties. The court further ordered the parties to maintain communication and cooperation concerning the children's care, welfare, and development.

In summary, the court's decision allocated parental responsibility to the mother and paternal grandmother, established the paternal grandmother as the primary caregiver, and set out detailed contact arrangements and conditions to protect the children and ensure their best interests. The orders also included provisions for communication, cooperation, and information exchange between the parties regarding the children's care and welfare.

Orders

Orders of the court

1.

The mother and paternal grandmother have parental responsibility for making long term decisions concerning the children [M] born in 2000 and [V] born in 2002 (herein after referred to as “the children”).

2.

The children live with the paternal grandmother.

3.

The children spend time with their mother:

(a) During the school term from 4.00pm Friday until 4.00pm Sunday for three (3) weekends out of four (4) in any given week period;

(b) For half of the school holidays as follows:

(i) For all the April school holidays in odd numbered years;

(ii) For all of the September school holidays in even numbered years;

(iii) For half of the June/July school holidays being the first half in even numbered years and the second half in odd numbered years; and

(iv) For half of the Christmas school holidays being the first half in even numbered years and the second half in odd numbered years.

4.

The father commence such course of alcohol counselling as is recommended to him by the Independent Children’s Lawyer within four (4) months of the date of these orders and continue with such alcohol counselling until such time as the alcohol counsellor concerned provides written notification that in the aforesaid alcohol counsellor’s professional opinion such counselling is no longer of assistance to the father.

5.

The father commence to undertake such anger management course as is recommended to him by the Independent Children’s Lawyer within four (4) months of the date of these orders and complete the necessary classes entailed in such an anger management course.

6.

Until the father complies with order 4 and 5 of these orders he spend time with the children subject to the follow conditions:

(a) Each such period of time the father spends with the children is to be supervised by the paternal grandmother and to occur at times agreed between the father and the paternal grandmother;

(b) However the paternal grandmother may waive the requirement for supervision, in respect of periods of daytime periods only provided the paternal grandmother is satisfied that the father has not been consuming alcohol and does not intend to consume alcohol whilst the children are in his care.

7.

Upon the father complying with order 4 and 5 of these orders he spend time with the children at time and on such conditions as may be agreed by the paternal grandmother and the father from time to time.

8.

The mother and father are restrained and an injunction issues restraining each of them from consuming alcohol or ingesting any illegal drug or any other illicit substance for a period of twelve (12) hours prior to spending time with the children and during any time the children are in each of their respective care.

9.

The father, mother and paternal grandmother are restrained and an injunction issues restraining each of them from:

(a) Assaulting, threatening or abusing the other either directly or indirectly;

(a) Acting in a provocative or offensive manner towards any of the others.

10.

The paternal grandmother be permitted to continue the enrolment of the children at the [B] Primary School.

11.

The children communicate with their mother, when they are in the paternal grandmother’s care, by telephone each Wednesday evening at 5.00pm with the mother to make the telephone call to the children.

12.

The children communicate with their paternal grandmother, when they are the care of their mother, by telephone each Saturday at 5.00pm with the mother to make the telephone call to the paternal grandmother.

13.

The mother, the father and the paternal grandmother are restrained and injunction issues retraining each of them from denigrating any of others or any other member’s of the parties’ family or household to the children or in their hearing or permitting any other person to do so.

14.

The parties use and exchange at each handover of the children a communication book to exchange information relating to all issues concerning the children’s care, welfare and development.

15.

The paternal grandmother and the mother:

(a) Forthwith inform the other of any serious accidents or illness to the children and in the event of either of the children requiring hospitalisation then each of the parties and the father shall be entitled to visit the child in hospital;

(b) Permit the children to attend with the mother in the event of the funeral of a family member or relative or clan member;

(c) Be entitled to attend at and participate in any extra curriculum activities of the children;

(d) Inform the other of all medical practitioners with whom the children consult and each of them authorise the other party to make all reasonable inquiries of the said medical practitioners in respect of matters concerning the health of the children.

16.

The mother and the paternal grandmother and father each keep the others informed of their telephone numbers and residential addresses and inform each other within 48 hours of any changes to either address or telephone number.

17.

The paternal grandmother authorise the principal of each school attended by the children from time to time to provide to the mother and father:

(a) Each school report for the children;

(b) An order form for each school photograph concerning the children;

(c) All other information concerning the children’s attendance at school, including school news letters and information concerning parent teacher interviews.

18.

The parents and the grandmother be at liberty to attend all school functions which are routinely attended by parents including sports days, school concerts and parent/teacher interviews.

19.

Order 3(a) be suspended during all school holiday periods and recommence after such school holiday period in the same sequence as if the holiday concerned had not taken place.

20.

Notwithstanding any of the provisions of these orders the children spend time with:

(a) Their mother on Mother’s Day from 9:00am until 4:00pm;

(b) Their paternal grandmother on Father’s Day from 9:00am until 9:00am the following Monday.

21.

The applications herein be otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On 28 March 2008, it was also ordered the two children be independently represented and that a family report be prepared. This was the background to the final hearing of this matter.c) The family report and the evidence of Ms Pavlin Ms Pavlin is an experienced social worker, who has been involved in writing family reports, in the court setting, for around twenty years. As a result, she has extensive experience in interviewing and observing children, as well as assessing the nature of their significant relationships and what is likely to be important in securing their best interests. Ms Pavlin had a significant advantage over me, in this case. She was able to meet [M] and [V] and speak with them. More importantly, she was able to see the children in a variety of settings – at their school; at Ms Verran’s home; and at Ms Hort’s home. Accordingly, Ms Pavlin’s evidence and opinion must be given a significant degree of weight by the court. Ms Pavlin identified the following issues as central in the case:·How could the children be best protected from family violence. It being Ms Pavlin’s assessment that they had been exposed to violence in every household in which they had lived from infancy onwards.·How could the children have a meaningful exposure to Aboriginal culture, including language, if they remained living with their grandmother.·Is Ms Verran a racist or a person who holds racist views. If so, what will be the impact of [M] and [V] of these attitudes and how can the children be protected from them. ·Is [V] confused about her identity. ·Given the tight financial circumstances, in each household concerned, how can the children’s needs be best met, including their need to maintain relations with both the maternal and paternal aspects of their family. Ms Pavlin first met [M] and [V] at their school. She arranged to observe them, in their classroom, without their knowledge. Ms Pavlin was impressed with how the children presented in their classroom. She described them as being “settled and productive at school.” One significant aspect of Ms Verran’s case is that she has ensured that [M] and [V] attend school regularly and has provided support for them to do well there, something which has not always happened when the children have been in either Ms Hort or Mr Verran’s care in the past. Ms Pavlin was impressed with this aspect of Ms Verran’s care of [M] and [V]. Ms Pavlin was also impressed with the home environment provided by Ms Verran for [M] and [V], which she described as “settled and comfortable”. Ms Pavlin was at Ms Verran’s home, when the children came home from school. The children showed Ms Pavlin their bedrooms and what their routine was. Ms Pavlin gained a sense that the children’s lives unfolded in a happy, orderly and uncomplicated manner, when they were with Ms Verran. Ms Verran also impressed Ms Pavlin on the focus she was able to apply to ensure the children’s needs were met. Ms Pavlin was impressed that Ms Verran knew “[M] and [V] individually – their particular likes and dislikes, their strengths and weaknesses – and as having a comfortable rapport with them both.”[15] [15] See Family Report at paragraph 15

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.