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 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
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”).
The children live with the paternal grandmother.
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.
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…
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- AGLC
- Verran and Hort and Verran [2009] FMCAfam 1
- Case
- [2009] FMCAfam 1
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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