Verran and Hort and Verran
[2009] FMCAfam 1
•21 January 2009
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 no longer of assistance to the father.
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.
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.
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.
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.
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.
The paternal grandmother be permitted to continue the enrolment of the children at the [B] Primary School.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The applications herein be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Verran & Hort and Verran is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
DNC 59 of 2008
| MS VERRAN |
Applicant
And
| MS HORT |
First Respondent
| MR VERRAN |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern final care arrangements for two children: [M] born in 2000 and [V] born in 2002.
[M] and [V] are part of a large and diverse family. They have six half-siblings. Arrangements for their care, in the past, have not always been stable.
As such, this is a difficult case, which raises many issues, particularly to do with the children’s identity and how they can be best protected from harm.
The applicant in the case is Ms Verran. She is [M] and [V]’s paternal grandmother. [M] and [V] have been living with her since April 2006.
It is Ms Verran’s[1] case that the children are doing well in her care and her household provides them with stability and security, qualities which were previously lacking in their lives.
[1] I will refer to each of the parties concerned in these proceedings by their respective given names. I mean them no disrespect. This is how the parties each referred to one another.
Accordingly, she does not think it is likely to be in [M] and [V]’s best interests if there is a change in their living arrangements at this stage of their lives.
Ms Verran was born in 1951. Her parents migrated to Australia from Croatia (her father) and Italy (her mother). Ms Verran’s son, Mr Verran is [M] and [V]’s father. He shares his mother’s European ethnicity.
[M] and [V]’s mother is Ms Hort. She is an Aboriginal woman.
Mr Verran and Ms Hort met when they were children growing up in Jabiru in the Northern Territory of Australia.
Ms Hort has eleven brothers and sisters. Her mother, Ms H is part of the generation of Aboriginal children, who were removed from their birth families and raised in either government or church based institutions.
Ms H was born at Neutral Junction Station in Central Australia. Her family were Kaytej. When she was eleven she was taken to the Catholic Mission at Garden Point on Melville Island.
Ms H met Ms Hort’s father at Garden Point. He was a Tiwi man, who died during Cyclone Tracey in 1974. Ms Hort strongly identifies as a Tiwi person, as do her brothers and sisters and her many cousins, nieces and nephews.
It is her case that [M] and [V] are also Tiwi children and will be identified as such both by their maternal relatives and within the wider Northern Territory community. As such, she believes that it is essential for [M] and [V]’s long term wellbeing and sense of identity that they be returned to her care as soon as is reasonably practicable.
Besides [M] and [V], Ms Hort has four other children. Her oldest child is [R], who is sixteen years of age. At present [R] is living with his maternal grandmother, Ms H.
After [M] and [V], Ms Hort’s next child is [X], who was born in 2004. Her father is Mr R. [X] has lived with Mr R since early 2006 and there is a court order ratifying this arrangement.
Currently Ms Hort is involved in a relationship with Mr J. Mr J is a person of European background, who was originally from Tasmania but who has lived in the Northern Territory for most of his life.
Ms Hort and Mr J have two children, [A] born in 2007 and [S] born in 2008. These children live with Ms Hort.
It is Ms Hort’s case that Mr R was a violent and abusive person, who has manipulated circumstances in order to assume predominant responsibility for the parenting of [X]. Ms Hort has indicated that she intends to take steps to have [X] returned to her care.
It is Ms Hort’s position that it is likely to be beneficial to [M] and [V], if they live with her, particularly because this will ensure that they maintain a close and loving relationship with [R], [X], [A] and [S].
The relationship between Mr Verran and Ms Hort, which produced [M] and [V] was a turbulent one, which lasted between some time in 1999 and 2002. It was marked by many interventions by the Northern Territory Police and Ms Hort was granted a number of domestic violence restraining orders against Mr Verran.
Since Mr Verran and Ms Hort separated, Mr Verran too has formed a new relationship. He has been involved with Ms S. He and Ms S have two children [L] born in 2006 and [E] born in 2007.
Mr Verran and Ms S are not currently living together. Mr Verran lives on a block of land, which he owns at Darwin River. Ms S lives in Palmerston.
It is Ms Hort’s understanding, bolstered by police records which she has subpoenaed from the Northern Territory Police, that the relationship between Mr Verran and Ms S has been a volatile and violent one, primarily because of Mr Verran’s excessive alcohol consumption. It is her case that these same difficulties pervaded the period during which she and Mr Verran were involved with one another.
Mr Verran acknowledges that his relationship with Ms Hort was fraught with all manner of difficulties. However, it is his case that both he and Ms Hort drank to excess, during their time together and this was the major source of their difficulties. He characterises Ms Hort as a poor and neglectful parent, who in the past has lived a chaotic life.
As such, he supports the children remaining in the care of his mother, Ms Verran. He believes that this will be the best means of them maintaining their relationship with him and with their half-siblings, [L] and [E]. It is his case that [M] and [V] have done well in Ms Verran’s care and are now attending school regularly.
Ms Hort does not resile from the fact that she has had difficulties in the past with alcohol and with violent relationships, particularly with
Mr Verran and Mr R. However, it is her case that she is now happy and secure in her relationship with Mr J, who is a non-drinker. She and
Mr J live in rented accommodation at [H], on the rural outskirts of Darwin.
From her perspective, [H] is a far preferable address for her than Jingili, a suburb of Darwin where she previously lived. In Jingili,
Ms Hort felt she was constantly subjected to pressures from visiting relatives, who brought their trouble to her home. These pressures do not exist at [H].
In short, it is Ms Hort’s case that she has turned a significant corner since 2006 and is now in a position to offer a stable and happy home life to [M] and [V], which will have the significant advantage of being culturally appropriate for the two children.
In addition, she points to the fact that it is clearly the case she was [M] and [V]’s primary provider of care and nurture, up until Easter of 2006, when they came into Ms Verran’s care. Accordingly, she asserts that it is likely to be beneficial to [M] and [V] that they be re-united with their mother.
Both Ms Verran and Mr Verran doubt Ms Hort’s assertion that she has overcome her past difficulties. Ms Verran, in particular, doubts that
Ms Hort will be able to provide stable accommodation for [M] and [V] or ensure that the girls attend school regularly.
It is Ms Verran’s case that it would be a retrograde step, in terms of the children’s educational and psychological development, if they are removed from her care after a period in excess of two and a half years.
The circumstances surrounding how [M] and [V] came into
Ms Verran’s care are complicated and controversial, so far as the parties are concerned. It is Ms Hort’s position that the placement was always intended to be a temporary one and she has done her best, in difficult circumstances, to ensure that she has maintained her relationship with [M] and [V]. She asserts that Ms Verran has not been supportive of this central relationship for the children and, in addition, at best lacks insight into the children’s complicated ethnic identity and, at worst, is overtly antagonistic towards the children’s Indigenous background.
It is essentially Ms Verran’s case that Ms Hort “abandoned” the children to her care, at Easter time of 2006, because her life was in a state of chaos at the time. She asserts that, in the period since, Ms Hort has shown scant interest in [M] and [V] and has been content to follow the lifestyle of her preference, largely in the Darwin area, without the need to come and see [M] and [V] regularly. As such, Ms Verran believes that Ms Hort has displayed a poor level of insight into the responsibilities of being a parent.
Ms Verran denies that she is unsupportive of the fact of [M] and [V]’s Indigenous background or that she herself can in any way be described as a racist. She asserts that she dearly loves both children and wants the best for them. As such, it is her case that she did not seek for the children to come into her care but now that they have done so, she would be loathe to allow them to return to what she considers an unstable environment.
Prior to the commencement of the hearing on 21 October 2008,
Mr Verran did not choose to take a formal role in these proceedings. He did however appear at the hearing and gave some oral evidence. However, he has never filed an affidavit on his own behalf.
The nature of the relationship between Mr Verran and Ms Verran is one of the central issues in this case. It is Ms Hort’s understanding, confirmed to some extent by Ms Verran and Mr Verran, that the relationship between mother and son is a violent one, to which both [M] and [V] have been exposed. Accordingly, it is Ms Hort’s case that a change to her, in regards to [M] and [V]’s care arrangements, will protect the children from the corrosive consequences of being exposed to family violence.
For her part, Ms Verran accepts that Mr Verran has complex issues to do with the over consumption of alcohol and as a consequence of his own exposure to family violence, whilst he was a child. As such, it is Ms Verran’s fervent wish that Mr Verran seek appropriate professional assistance to deal with these problems.
However, it is Ms Verran’s case that she is aware of the dangers which Mr Verran’s behaviour poses towards [M] and [V] and is able to protect the children from these threats. She acknowledges that Mr Verran has assaulted her, whilst [M] and [V] have been there, but she says this unfortunate incident occurred whilst she was attempting successfully to evict Mr Verran from her home.
It is Ms Hort’s case that Ms Verran either underplays or denies the extent of Mr Verran’s problems and so the extent of the threat which his behaviour poses to [M] and [V]. In particular, she points to the fact that Ms Verran has not sought a domestic violence order against
Mr Verran. As such, she fears that Ms Verran will not be able to protect the children from Mr Verran’s violent behaviour in future.
On Christmas day 2007, Ms Hort came to Ms Verran’s home unannounced and asked to spend time with [M] and [V]. With some reluctance, Ms Verran agreed to this request, provided the two children were returned to her the next day.
Ms Hort did not return the children as she had indicated and quite frankly acknowledges that she had no intention of so doing. It is her case that, at the time, this was the only mechanism which she thought would ensure the return of the children to her care.
[M] returned to Ms Verran on 29 January 2008. Apparently, this was [M]’s wish at the time. However, [V] remained with her mother and Ms Hort enrolled her at the [H] School, without any prior consultation with either Ms Verran or Mr Verran.
This state of affairs led to Ms Verran commencing these proceedings on 13 February 2008. Subsequently, in late March of 2008, it was agreed that [V] would return to Ms Verran’s care and the two children would spend time with their mother on weekends and for half of each school holiday period. The children were to be exchanged between
Ms Verran and Ms Hort at the Coolalinga Shops. This situation has continued until now.
It is Ms Verran’s understanding, buttressed by records subpoenaed from the [H] School, that [V] did not attend school regularly during the period she was in Ms Hort’s care. As such, it is her position that this state of affairs provides a preview of what is likely to occur, so far as the children’s education is concerned, if they are placed in Ms Hort’s predominant care as a result of these proceedings.
Ms Verran lives at [S], which is near [B]. [M] and [V] are currently attending the [B] Primary School. [B] is about 35kms away from [H], where Ms Hort currently lives. Coolalinga is the mid-way point. Unfortunately, the exchange of the children between Ms Verran and
Ms Hort has been marked by conflict. Both blame the other for this conflict.
Accordingly, it seems clear that, at the present time, there is a deep rift between the paternal and maternal aspects of [M] and [V]’s family. This cannot be a good state of affairs for the children. At this stage, it seems unlikely that Ms Verran and Ms Hort, and indeed Mr Verran, will easily be able to agree on any major issues to do with [M] and [V]’s care. In addition, it seems to be the case that Ms Verran and
Ms Hort find it practically impossible to exchange information about the children.
Ms Verran sees [M] and [V] as being well settled and happy at the [B] Primary School. Ms Hort’s preference would be for the children to attend the [H] Primary School, which besides being close to where she lives, also offers a component of its syllabus in the Tiwi language, which she speaks.
The [B] Primary School does not offer any Indigenous language components in its syllabus nor does it have Aboriginal liaison officers or teachers aides. [H] Primary School does have these things. As such, Ms Hort sees the school as being more culturally appropriate for [M] and [V] than [B], which she asserts offers only a “mainstream” education.
Because of [M] and [V]’s ethnic background; the serious issues of family violence which have arisen; and the other complicated circumstances which surround this case; it has been ordered by the court that [M] and [V]’s interests should be represented independently of their mother and paternal grandmother. The children’s independent family lawyer[2] is Ms Michelle Giacomo.
[2] See Family Law Act 1975 at section 68L
The law requires Ms Giacomo to formulate a position to the court, based on the evidence available to her, which she thinks will be in [M] and [V]’s best interests.[3] In her submission, Ms Giacomo advocates that [M] and [V] should continue to live with their grandmother and spend time with their mother on three weekends out of four, during school terms and for half of each school holiday period.
[3] See Family Law Act 1975 at section 68LA
Ms Giacomo also supports an outcome, which would see Mr Verran spending only supervised time with the children, until he has completed a course of anger management and alcohol counselling.
Ms Giacomo submits it is appropriate that Ms Verran provides the necessary supervision.
Ms Verran is prepared to accept essentially the orders proposed by
Ms Giacomo. These include that she and Ms Hort have equal responsibility for making major long term decisions to do with the children’s care, other than those which relate to their Indigenous background and religious instruction.
Ms Giacomo, as I do, sees this is a difficult and complicated case. However, after considering all the evidence available to her, she has concluded that the children will be able to maintain a connection with their Indigenous background, particularly its Tiwi aspects, and explore and enjoy that culture if they spend regular periods of time in their mother’s care.
Otherwise, Ms Giacomo considers that the children’s best interests will be served if they continue to live in the stable environment of
Ms Verran’s home, which they have come to regard as their own home, over the last thirty or so months.
Needless to say, Ms Hort does not agree with Ms Giacomo’s submissions. It is her position that she should have sole parental responsibility for making all major decisions to do with [M] and [V]’s care. As such, she proposes that the children come to live with her, at the end of the current school year, and she be able to enrol them, at
[H] Primary School, at the start of 2009.
Once [M] and [V] have come to live with her, Ms Hort proposes that they should see Ms Verran on alternate weekends, from after school on Friday until 4:00pm on Sunday, during the school year and for nominated periods during school holidays.[4]
[4] Ms Hort proposes that it be the whole of the April and September/October holidays in alternating years; one week in the mid-year school holidays; and one week in the January school holidays. She has proposals for Christmas and Father’s Day.
As a major component of Ms Hort’s case is the threat posed to [M] and [V] by Mr Verran’s violent behaviour, she seeks strict orders to regulate any future interaction between Mr Verran and the children.
Ms Hort opposes Mr Verran having any unsupervised time with [M] and [V] but, in the absence of any viable alternative, is prepared to accept Ms Verran as this supervisor. She also wishes Mr Verran to undergo anger management, as well as an appropriate parenting course.
Ms Giacomo’s position is no doubt influenced by the evidence of the independent court expert appointed in this case. She is Helen Pavlin, an experienced social worker and family consultant. Ms Pavlin is experienced in assessing the nature of children’s relationships with those who are significant to their care and ascertaining the views of the children concerned, particularly where there is a significant degree of conflict between the parties concerned.
Ms Pavlin does not advocate a change in the living arrangements for [M] and [V]. She is impressed with how well the children have settled into a regular routine, at home and at school, with Ms Verran. It was Ms Pavlin’s sense that the children felt that their grandmother’s home was their home and they felt happy and secure there. As such,
Ms Pavlin did not see any compelling benefits for the children, if there was a change of arrangements for their care, particularly where they should live.
In her report, Ms Pavlin said as follows:
“At this point I would favour continuity of residence, school attendance as established by their grandmother, and alternate weekend recreational and cultural experiences as being progressively established by their mother. I believe the girls benefit from the stability they experience during the school week at their grandmother’s where they already have an established routine. Given the demands on their mother associated with the ongoing care of her two much younger children, and the fact that [M] and [V] have been able to spend time with and communicate with her and their other siblings on a regular basis, and have some regular exposure to aspects of their culture which their mother wishes to foster, I see no benefit in disrupting their present home-life, which quite possibly represents one of the most stable periods in their life to date with the least exposure to violence.”[5]
[5] See family report at page 15-16 [paragraph 54]
Counsel for Ms Hort, Mr Allen, submits that Ms Pavlin has failed to appreciate the level of violence in Ms Verran’s home and its likely impact upon [M] and [V] in future. In addition, he submits that Ms Pavlin has given insufficient consideration to the children’s Indigenous background.
In particular, he submits that there is a grave risk that [M] and [V] will have an imperfect sense of identity, if they are brought up in a home without readily identifiable role models, who share their Indigenous background. As such, he asserts that there is a real chance that both children will suffer some form of identity crisis, as they move through adolescence to maturity.
Essentially, it is Ms Hort’s case that any proper consideration of [M] and [V]’s best interests require that they be totally immersed in an Indigenous environment. Otherwise, they will perceive that only tokenistic regard has been had to this essential component of their background and this will have serious ramifications for their personal sense of identity in the long term.
In addition, she believes that Ms Verran is likely to be either, at best, passively dismissive of or at worst, openly antagonistic towards the children’s Indigenous background and this to will have consequences for the children’s level of self regard, as they grow to maturity.
Accordingly, it is Ms Hort’s case that both children have an urgent need to be exposed to positive Indigenous role models, on a day to day basis. She asserts that, as the children’s mother, she is the best possible and most accessible such role model.
Finally, given the children’s physical appearance and the nature of society within the Northern Territory, Ms Hort asserts that the children will be identified as Indigenous children, whether this is either their or Ms Verran’s preference.
As such, Ms Hort believes that it is highly likely that [M] and [V] will be exposed to some racist behaviour in future. This, in her submission, heightens the need for a change of residence for the children, so that they can gain a proper sense of their identity and be inoculated against the possible consequences of such racism.
Essentially, what Ms Hort says is that [M] and [V] are and always will be Aboriginal and Tiwi children in particular. They will be identified as such by both the Indigenous and Non-Indigenous communities within the Top End of the Northern Territory. As such, they need now to be placed permanently within the matrix of their appropriate Indigenous kinship network so that they can properly know who they actually are and where they fit in.
From Ms Verran’s perspective, she sees [M] and [V] as her grandchildren. She loves them regardless of whether they are, in her words, “black, brown or brindle”. Ms Verran says that she has done a good job in caring for the children, since Ms Hort left them in her care over two and a half years ago. As such, it is her view that it would be derelict of the court to change this longstanding arrangement, particularly as so many question marks regarding Ms Hort’s capacity as a parent remain.
In particular, Ms Verran points to the fact that it is uncertain how long Ms Hort and Mr J will remain in a relationship together. In addition, Mr J himself is something of an unknown quantity, as he chose neither to take part in the current proceedings nor to provide any evidence to the court in this case.
These proceedings are directed towards resolving this complex dispute between the parties. In so doing, the court is directed to apply Part VII of the Family Law Act and the objects and principles which underpin it.
These principles emphasise the importance to children of their cultural to background, particularly the rights of Aboriginal children to maintain a connection with their Aboriginal culture and to have the support and opportunity necessary to explore that culture and develop a positive appreciation of it.[6]
[6] See Family Law Act 1975 at section 60B(2) & (3)
However, regardless of these principles, in determining what is the appropriate outcome in this case, the best interests of [M] and [V] remain paramount.[7] [M] and [V]’s rights to enjoy and maintain their culture are one important consideration amongst many others, these considerations include the significance of their relationship with their paternal grandmother.[8] There is no presumption in favour of biological parents, as against a grandparent, provided by the provisions of the Family Law Act.
[7] See Family Law Act 1975 at section 60CA
[8] See Davis v Davis (2007) 38 Fam LR 671 at 694 [93] and 697 [114]
Documents relied upon
Ms Verran is the applicant in these proceedings, which she commenced on 13 February, 2008. She relies on the following documents:
i)Three affidavits of herself filed on 13 February 2008; 23 June 2008; 17 October 2008;
Ms Verran only named Ms Hort as respondent to her application.
Ms Hort responded to the application on 9 April 2008. She relies on the following documents:
i)Two affidavits of herself filed on 23 June 2008 and 20 October 2008;
ii)An affidavit of her mother, Ms H filed 23 June 2008.
More recently, Ms Hort has named Mr Verran as an applicant. This was as a result of an order made by Terry FM on 28 March 2008, which directed that he be joined as applicant to these proceedings. I am a little puzzled by this order as, prior to 28 March 2008, Mr Verran had filed no material and none of the orders made, up to that stage, indicate his appearance before the Court.
His signature does however appear on the Terms of Settlement, which were filed with the Court on 28 March 2008 and which recorded an agreement which all concerned had reached in respect of interim arrangements for the care of [M] and [V].
No doubt it was Terry FM’s perception that Ms Verran and Mr Verran shared a common position in respect of the proceedings and, as such, the two were to be regarded as co-applicants. However, the fact remains that, both before and after 28 March 2008, Mr Verran has filed no formal documents whatsoever in these proceedings. Nor has
Ms Verran formally sought to call him as a witness, on her behalf, in these proceedings.
In all these circumstances, I thought that there was a degree of artificiality in regarding Mr Verran as being an applicant in these proceedings. However, it is clear to me that he is vitally interested in their outcome. He appeared at court on each day of the hearing and I gave him leave to give oral evidence in the proceedings and to cross examine each of the witnesses concerned.
However, given the absence of any formal documents from him, particularly an application, I thought it appropriate that he be regarded as a respondent in the proceedings.
On 28 March 2008, the formal order was made which directed that [M] and [V] be independently represented in the proceedings. On this date, it was also ordered that a family report be prepared.
Ms Verran, Ms Hort, Mr Verran and Ms H each gave oral evidence in the proceedings and each was cross examined. The only other witness was Ms Pavlin.
Ms Giacomo did not file any affidavit material. In a formal sense, Ms Pavlin is to be regarded as a witness for the Court who called her to give evidence in the proceedings. She too was cross examined by each of the parties concerned, including Ms Giacomo.
Ms Giacomo and the solicitors for Ms Verran and Mr Verran issued numerous subpoenae in this matter. They were directed to the various schools attended by the children and, more particularly, towards the Northern Territory Police, which was directed to produce documents regarding the criminal convictions of both Mr Verran and Ms Hort, as well as their extensive involvement with the police.
As a result of these subpoenae, a bundle of documents was also tendered into evidence. These documents, the affidavit referred to above, the family report of Ms Pavlin and the oral evidence of each of the witnesses outlined above form the evidence on which this case has been determined.
In these Reasons for Judgment, findings of fact are made on the balance of probabilities. In what follows, statements of fact constitute findings of fact.
Background
I have already set out many of the salient facts which bring the parties concerned to this point. However, at this point, it is useful to set out some significant dates, so far as the parties are concerned.
Ms Verran was born in 1951. Mr Verran was born in 1973. Ms Hort was born in 1973. Mr Verran and Ms Hort apparently first met in primary school at Jabiru.
Both have lived in the Top End of the Northern Territory for the vast majority of their respective lives. They have both lived in Darwin and in bush settings on its rural outskirts.
Indeed, Ms Hort deposed that one of the happier portions of her life was when she and Mr Verran lived at Mr Verran’s bush block at Darwin River and lived a quiet life together.
Mr Verran still lives on the block concerned and Ms Hort sees great attractions in respect of her present rural home at [H]. Accordingly, I do not think there is necessarily a huge experiential gulf between the lives of Mr Verran and Ms Hort.
Neither parent seems to have had an extensive formal education. In her childhood, Ms Hort lived in Jabiru, the Coburg Peninsula, Tennant Creek and in and around Darwin. She has been backwards and forwards, to the Tiwi Islands, all her life.
Ms Hort attended [schools omitted] in Darwin. These are boarding schools. She left half way through year 11. She does not regard herself as has having grown up in any particular bush community. Rather, she believes that she has been “in the system all of [her] life”.
Mr Verran’s home life, when he was a child, was violent and unsatisfactory. Ms Verran’s husband, Mr Verran’s stepfather, was a violent and alcoholic person, who regularly beat both Mr Verran and Ms Verran. It is Ms Verran’s view, which I share, that Mr Verran has been seriously damaged by his exposure to this violence. However, it is Ms Verran’s view that Mr Verran has greater issues to do with alcohol.
It is Ms Verran’s evidence that Mr Verran has been a binge drinker, who drinks to excess on weekends. However, she deposes that she has not observed any signs of him having drunk alcohol since November of 2007.
Mr Verran concedes that, in the past, he has been “running down hill because of the grog”. He also acknowledges that he has been very angry about some issues arising from his past. Ms Verran wishes that he would “deal with all the bad things in his cupboard”.
Mr Verran has led a “knock about” life in the Top End of the Northern Territory. He has skills in operating heavy plant such as dump trucks and graders. In the past, he has worked in remote Aboriginal communities, such as Port Keats (Wadeye). Currently he is not working but is awaiting a possible job laying the natural gas pipeline from the Bonaparte Gulf.
Mr Verran has owned his block of 20 acres, at Darwin River, for around 12 years. He built the small house on it himself. The property has a bore and water tanks. However, it currently has no electrical power. Mr Verran hopes to resume paid employment so that he can save the sum of $3,500, which is the sum required to connect to the electricity grid. From his perspective, it is a significant sum of money.
It is Mr Verran’s evidence that [M] and [V] have spent time with him at his home. It is also his evidence that he does not drink when at the block. Ms Verran’s view, with which Mr Verran concurs, is that, without electricity, the block is not suitable for the children to stay overnight.
Mr Verran and Ms Hort commenced their relationship in 1999. They do not appear to have consistently lived together thereafter. Ms Verran and Ms Hort have known each other since Ms Hort was a little girl in Jabiru. It is Ms Hort’s evidence that Mr Verran used to take refuge at her house, when he had to escape Ms Verran’s husband. It is Ms Hort’s case that she and Ms Verran have never got on well.
Mr Verran and Ms Hort’s relationship seems to have been violent and unsatisfactory. They have different views as to why this was so.
Ms Hort says it was as a result of Mr Verran’s alcohol abuse, which precipitated his extreme violence against her. However, perhaps unexpectedly, Ms Hort said Mr Verran “is a good bloke”, when he is not drinking. She also said that she had observed that [M] and [V] were always glad to see their father.
Mr Verran, to Ms Pavlin, acknowledged that he had a history of family violence towards both Ms Hort and [Ms S]. However, in respect of Ms Hort, he indicated that “she was pretty good at causing it, too”.[9] It appears to be Mr Verran’s case that Ms Hort also drank to excess and the two were locked in a mutually abusive and alcoholic relationship.
[9] See Family Report at page 7 [para.19]
To some extent, I accept that this was so. Ms Hort conceded that she had referred to Mr Verran as variously “white trash” and as a “gin jockey”. In defence of these racist comments she said if Mr Verran was “good enough to give it, it was good enough to get it back”.
I suspect that both Mr Verran and Ms Hort have both underestimated the consequences, particularly for [M], of the violence and drinking in their relationship with one another. It also seems to me that Ms Pavlin’s assessment that Mr Verran has:
“… tended to minimise the cyclic difficulties he and the mother of his other two children have had in which she has sought police involvement when he has been drunk/threatening or violent as documented in the subpoenaed material I have since seen.”[10]
is almost certainly correct.
[10] Ibid at page 7 [para.20]
I am concerned that Mr Verran lacks a significant degree of insight regarding the consequences of his behaviour, not only for himself, but for others. My impression is that Mr Verran is not a person prone to introspection or self-examination. But neither is Ms Hort.
Mr Verran confirmed that he had previously attended some AA meetings but had not followed through with them or with another recommended course of counselling at Centacare. In terms of the course of counselling advocated for him, by both his mother and
Ms Hort, Mr Verran said he was willing to undertake it, provided that it fitted in which his work commitments.
Given that Mr Verran aspires to a job working out bush, presumably with extensive overtime, it seems likely that he will lack sufficient commitment to complete these courses. Certainly, it is his view that his employment commitments are presently more important than any course of counselling proposed for him. His own assessment of himself, as a parent, is that he is a “pretty good one”.
This is not a view he shares of Ms Hort. Rather, he regards her as having been a negligent parent in the past. Essentially, it is his case that [M] and [V] will be better off with his mother where they will get “three feeds a day; keep going to school; and go to bed at the right time”.
Mr Verran has been the subject of a number of domestic violence orders involving Ms Hort. On 28 December 2001, Mr S, a Northern Territory police officer applied for such an order on Ms Hort’s behalf. The order was confirmed on 4 January 2002, with Mr Verran’s consent.
Mr S deposed that the basis of the order was that Mr Verran had bashed Ms Hort’s cheek with a wooden bar, wrestled her to the ground and dragged her. This assault apparently broke her nose.[11]
[11] See Exhibit LH-3 to Ms Hort’s affidavit filed 23 June 2008
A similar order was made on 21 January 2004, again with Mr Verran’s consent but without him having made any admissions. Mr Verran was restrained from contacting Ms Hort, either directly or indirectly, other than to make arrangements to see the children concerned pursuant to any applicable Family Court order.
As a result of this violence, Ms Hort was compelled to seek refuge, with [M], at a Women’s Shelter, on at least one but more likely more numerous occasions. Mr Verran is a fit and strong man. Ms Hort is a slightly built woman. In any physical altercation between the two, there can be little doubt that Mr Verran would prevail.
Ms Hort acknowledges that she drank during the period of her relationship with Mr Verran. However, it is her case that she watched what she drank and always tried to remain more sober than Mr Verran. She says that it was her practice to tip out her glass of cask wine from time to time.
On balance, I think it unlikely that Ms Hort drank significantly less than Mr Verran and was always aware of her level of consumption. I think this is likely to be some form of rationalisation of her own previous destructive behaviour.
In the early portion of 2002, Ms Hort and Mr Verran separated. In the middle of that year, Ms Hort obtained rental accommodation for herself and [M], through Territory Housing, at Jingili. She was pregnant with [V] at this time.
Ms Hort’s oldest child is [R], whose father is Mr L, a man from Melville Island. [R] has lived with his maternal grandmother for a number of years. It is Ms H’s evidence that this state of affairs came about because she and other members of her family were concerned about [R]’s exposure to the violent relationship between Mr Verran and Ms Hort.[12]
[12] See Ms H’s affidavit filed 23 June 2008 at paras.23-24
Ms Hort began proceedings, in this Court, against Mr Verran regarding arrangements for [M] on 22 May 2002. At that stage, she sought a Recovery Order in respect of [M] and that a DNA test be undertaken to ascertain her parentage.
At that stage, it was Ms Hort’s case that she had allowed Mr Verran to have contact with [M] but he had refused to return her to him as he had earlier agreed. On 23 May 2002 I ordered that [M] should live with
Ms Hort on an interim basis.
Mr Verran responded to this application on 3 June 2002. He also sought an order that parentage testing be undertaken in respect of [M]. However, the importance of this issue seems to have lapsed between the parties. Certainly both [M] and [V]’s birth certificates indicate that Mr Verran is their father.
In his affidavit filed in the proceedings concerned, Mr Verran deposed that he had little doubt that he was [M]’s father and understood that he was the father of her as yet unborn child. It was also his position that he and Ms Hort had not lived together for any extended periods of time.
Rather, it was his case that Ms Hort and [M] had regularly visited him at his home in Darwin River and he had visited them at Ms Hort’s flat in Palmerston. It was also his case that he had played an active role in caring for [M], whom Ms Hort had left with him for extended periods of time in the past.
At the time, it was Mr Verran’s position that both he and Ms Hort had drank very heavily during their relationship and this had resulted in frequent arguments between the two, which involved mutual physical and verbal abuse. However, Mr Verran denied that he had ever done anything to hurt or endanger [M].
For reasons which are not entirely clear to me, Mr Verran did not follow through with his application that [M] should live with him. Accordingly, Ms Hort’s application proceeded to finalisation on an undefended basis.
On 21 January 2003, orders were made that both [M] and [V], who was born after Ms Hort’s application was filed, were to live with their mother and spend time with their father on each weekend from 9.30am Saturday until 12.00 midday the following Sunday.
What precisely occurred, so far as arrangements for the care of [M] and [V], between January 2003 and April 2006, is not particularly clear. Neither Mr Verran nor Ms Hort saw any need to return to Court to change the orders which had been made.
On balance, it seems more likely than not that Mr Verran regularly saw the children, on weekends, pursuant to these orders and Ms Hort was content to allow this to occur. During these periods, no doubt the children saw Ms Verran from time to time.
In late 2004 or early 2005, Mr Verran became involved with Ms S. It is Ms Hort’s case that this involvement marked a reduction in the level of disputation between her and Mr Verran.
In June of 2003, Ms Hort became briefly involved with Mr R, who is an Aboriginal man from Broome in Western Australia. Ms Hort deposes that she only became involved with Mr R so that “Mr Verran would leave [her] alone …”. This does not appear to me to be a likely reason for the relationship. In any event, Ms Hort and Mr R’s daughter, [X], was born in 2004.
It is Ms Hort’s case that Mr R was also a violent and abusive man, who continually harassed her about arrangements to do with [X]’s care. She says it was necessary for her to invoke the police to assist her, in her relationship with Mr R, on numerous occasions. This is likely to be true but it is unclear whether or not Ms Hort followed through with a domestic violence order against Mr R.
What is clear, however, is that [X] has lived with Mr R since early 2006. Ms Hort asserts that this situation came about as a result of
Mr R’s unilateral action. She claimed to have no knowledge of any proceedings which Mr R commenced in this Court in respect of [X].
On 21 February 2007, Mr R commenced proceedings in this Court regarding arrangements for [X]’s care. An affidavit of service indicates that his application was personally served on Ms Hort at an address in Moulden, a suburb of Palmerston, the satellite town of Darwin, on 21 March 2007.
In his application, Mr R sought orders that [X] live with him and initially have supervised time with her mother. Ms Hort did not formally respond to this application. However, the record shows that she appeared personally in Court on 10 April 2007, the first return date of the application, which was subsequently adjourned to 24 April 2007.
Ultimately, Mr R’s application proceeded on an undefended basis on 8 May 2007. At that time, Terry FM ordered that [X] live with Mr R and that she should spend time with her mother, at times to be agreed between the parties.
Injunctions were made restricting the mother from drinking alcohol to excess or taking any other illicit substances when [X] was in her care and preventing her from taking [X] to Melville Island, without Mr R’s consent.
In his affidavit in support of his application, Mr R is generally critical of the mother’s lifestyle, asserting that she led a transient lifestyle and drank wine and smoked marijuana to excess. It was also his position that, since the early part of 2006, Ms Hort had made no real attempts to spend time with [X].
The impression that Ms Hort seems to wish to leave of herself, during this period, is of a person who had been considerably victimised and, as such, had great difficulty in gaining assistance, either through the police force or other legitimate legal channels.
Obviously, I am not in a position to make an assessment of how
Ms Hort was in either 2006 or 2007. However, during the proceedings before me, she presented as a forthright and confident person. Certainly, in the past, she has had little difficulty in accessing assistance from the Aboriginal Legal Service in Darwin or obtaining help from the Domestic Violence Unit of the Northern Territory Police.
Accordingly, it seems likely to me that the period of 2005 and 2006 was one of marked instability for her. As such, it seems likely that she was drinking more alcohol and smoking more marijuana than she is currently prepared to acknowledge.
In her affidavit material, Ms Hort acknowledges that she was not coping with caring for the children. She also acknowledges that [R] had gone to live with his grandmother as a result of the intervention of other members of her family. It was against this background that [M] and [V] came into the care of Ms Verran.
Ms Hort’s position is that she was probably depressed at the time. She deposes that she realised that she needed to provide [M] and [V] with “a safe and happy home”, which would not involve them “constantly witnessing violence”.[13]
[13] See Ms Hort’s affidavit filed 23 June 2008 at paragraph 74
At Easter time, the children were due to spend some time with
Mr Verran. He says that after the holiday was over, he went looking for Ms Hort to return [M] and [V] to her but could not find her. Accordingly, he felt compelled to leave the children with Ms Verran, as he had to go back to work.
Ms Hort says she had previously discussed with Ms Verran the possibility of [M] and [V] coming into Ms Verran’s care on a temporary basis, whilst she got back on her feet. Ms Hort says a period of 12 months was discussed.
It does not seem to me to be likely that there was any formulated agreement between the two women at the time. Certainly, Ms Verran was not expecting the children after Easter. I think this was a very unstable period for both Ms Hort and the children.
Ms Verran’s case is that [M] and [V] had “problems” when they came into her care. The picture she paints is of two children who were emotionally vulnerable. [V] would soil herself. Both children were having bad dreams.
After Easter of 2006, Ms Hort went to Melville Island, “to clear her head”. She probably did telephone Ms Verran from there but I am satisfied that there was no concluded discussion about if and when the children would be returning to Ms Hort’s care.
Ms Hort returned to Darwin in June of 2006 and surrendered the tenancy of her home in Jingili. She then returned to Melville Island, so that she could “rest” with her family. Ms Hort was in the Tiwi Islands for around four months.
Ms Hort’s case is that she would try to ring [M] and [V] regularly, to stay in touch. Ms Verran’s case is that Ms Hort’s attempts to contact the children were extremely irregular. She says that she went to see
Ms H and gave her (Ms H) her telephone number, in the hope that
Ms Hort would make contact.
Towards the end of 2006, Ms Hort returned to live in the Darwin area. She lived with her mother and with friends at Frog Damn. From the early part of 2007, she had access to a motor vehicle.
Ms Verran’s case is that the only times Ms Hort saw the children was by chance, if they ran into one another at the shops. It is Ms Hort’s case that Ms Verran made it difficult for her to either talk to the children or visit them.
It is clear to me that, after Easter of 2006, [M] and [V] did not see their mother very often. I suspect that Ms Verran was not inclined to go looking for Ms Hort but nor was Ms Hort particularly proactive in coming to see the children.
It is Ms Verran’s case that she, in difficult circumstances, was forced to assume the primary role of parenting [M] and [V] because Ms Hort was not available. She enrolled them at [B] Primary School. Ms Verran says that, over time, the children became calmer and more settled in her care. I accept her evidence in this regard.
Ms Hort remained in contact with the two children but I doubt that it was as extensively as she now contends. She became seriously involved with Mr J, whom she has known for about ten years, in 2006. [A] was born in 2007. No doubt Ms Hort’s pregnancy was a factor in her not being able to see [M] and [V] more regularly.
I suspect that, at the back of her mind, Ms Verran always realised that there would inevitably be some form of court case with Ms Hort, about arrangements for the care of [M] and [V]. However, she herself was not anxious to begin proceedings, preferring to let sleeping dogs lie. For her part, Ms Hort made no steps to bring the arrangements regarding [M] and [V]’s care to an end, until the later part of 2007.
It is Ms Hort’s case that she heard some disquieting information, from some of her relatives who live near Ms Verran in Southport, that
Mr Verran and Ms Verran had been fighting, whilst the children were there. The information was confirmed, on the telephone, by [M]. It was this information, which apparently galvanised Ms Hort into taking action.
The impression I have is that Ms Hort’s living arrangements were not particularly stable at this time. She deposes that after she had finished the telephone conversation with [M], she was:
“I was so angry when I got off the phone. I was mad at
Ms Verran because the reason the girls were in her care was to get them away from the domestic violence and now she was lying to me about it.
At the time I was still living with my mother in Palmerston. I sat down with my mother and my sister and told them what [M] had said and we decided that it was best that mum and I go out and collect the girls.
I realised that I had to find a home so that the girls could come back and live with me. I didn’t want them to move from place to place. I remember asking Ms Verran whether she new of any place in [B] for rent, she said to me “fat chance”.[14]
[14] See Ms Hort’s affidavit filed 23 June 2008 at paragraphs 110-112
It is Ms Hort’s case that she was able to secure some accommodation for herself on a rural block at [H] about three weeks later. Initially, she was living in a small cabin but has now moved to a larger demountable located on the same property. Mr J is now living in the cabin. Ms Hort has been living at the [H] property since the latter part of November 2007. It is her case that she is happy and well settled there.
Mr J is not working at present. The demountable concerned has two bedrooms, as well as kitchen, bathroom and toilet. Ms Hort and [M] and [V], when they are with her, sleep in Ms Hort’s queen sized bed. There is another single bed in the room and a cot for [S]. Ms Hort acknowledges that space is tight but says everyone “squeezes in”.
Initially, Ms Hort’s landlord was a little reluctant to rent to a single parent but he is apparently happy at how Ms Hort has looked after the property and paid the rent. As such, he was content to allow Ms Hort to move from the small cabin into the larger demountable on his property. When she moved, Mr J was able to move into the cabin, which she had vacated.
Accordingly, although Ms Hort and Mr J live on the same property, they do not share the same dwelling. Ms Hort has said that Mr J did not participate in this case because “he did not want to get involved as he has issues with Mr Verran”.
These issues appear to relate to a fist fight, which occurred between
Mr J and Mr Verran at the Palmerston office of Centrelink in 2003. Who caused this fight and what it precisely involved, I do not know.
Ms Hort is very proud of how she was able to get her life on track, as demonstrated by her successfully obtaining her lease in [H]. It is her case that, prior to this time, her life was in a “rut”. She also says that, around this time, she realised she “needed to get her kids back”.
b)What happened between November and December 2007
One of the major planks of Ms Hort’s case is that she has been compelled to act because Ms Verran has exposed [M] and [V] to family violence in her home, as initiated by Mr Verran and she (Ms Verran) is incapable of protecting the children adequately from Mr Verran’s violent and unpredictable behaviour.
In this regard, Ms Hort relies heavily on what [M] has told her, which Ms Verran has largely confirmed. It is Ms Hort’s case that she consistently quizzed Ms Verran about her relationship with Mr Verran and she (Ms Verran) had finally broken down and confirmed that
Mr Verran had come over drunk one night to her home and an argument had ensued between the two, during which [M] had seen her father push Ms Verran.
The version of this event, provided by [M], was that she had seen “daddy pushing Nana … seen Nana fall down and hit her back and her head on the ground …”. At which stage [M] had “run between Nana and dad and was screaming at dad to get out.” [M] had apparently told her mother that she had tried to push her dad out the door.
It is Ms Hort’s case that Ms Verran was dismissive of both her and [M]’s concerns. Ms Hort asserts that, when [M] had been concerned about this behaviour, she (Ms Verran) said “well [M] shit happens”. Ms Hort is also critical that Ms Verran did not take the formal steps of obtaining a domestic violence restraining order, against Mr Verran, in respect of this incident.
Ms Verran does not dispute that there was an ugly incident between her and Mr Verran in November of 2007, to which both children were witness. She however disputes that this is one of many such incidents between her and Mr Verran and rejects the suggestion that she did not behave appropriately in respect of it and can be taken to have either condoned or excused Mr Verran’s behaviour.
Ms Verran was a laconic and phlegmatic witness. I do not doubt that she has had, at times, a very difficult life. She deposed that from her own experience, she knew what a “terrible thing” family violence was. She confirmed that Mr Verran had sworn at her in the past and assaulted her by pushing.
She also confirmed that, to her knowledge, Mr Verran had threatened Ms Hort with violence and had injured her. She also confirmed that
Mr Verran had a history of cannabis use, culminating in him receiving a suspended prison sentence of eighteen months for cultivating a commercial quantity of cannabis. This sentence was imposed by the Supreme Court of the Northern Territory on 20 December 2005.
It is also the case that Mr Verran was involved in a violent altercation, with police, in October of 2007. This incident resulted in Mr Verran being charged with assaulting police. It occurred after Mr Verran had been drinking.
In my estimation, Ms Verran does not have an unrealistic view of
Mr Verran and his problems. She concedes that he has extreme issues to do with his violent temperament and greater problems to do with alcohol. It is her case that Mr Verran has been “trying” to do something about these issues since November of 2007. She wishes he would do more. It is her case that she does not know of Mr Verran having consumed alcohol since November of 2007.
My impression of Mr Verran is that he has a volatile temperament. On one occasion, during the hearing of the proceedings, he lost his composure, during an aspect of the evidence which dealt with his behaviour. He began to leave the court room in an agitated manner. I prevailed upon him to stay and he calmed down. I have no doubt that, when under the influence of alcohol his temperament is far more violent and unpredictable.
Ms Hort too obviously knows Mr Verran very well indeed and has been subject to his violent behaviour in the past. It is her case that the two or three incidents, of which Ms Verran complains, are “the tip of the iceberg” so far as her experience of Mr Verran’s behaviour is concerned.
Although Ms Verran remains loyal to Mr Verran and loves him, I do not think that she is blind to his faults. Nor do I think that she is consciously underestimating either the extent or consequences of his behaviour out of a misplaced sense of loyalty to him.
On balance, I accept her evidence that there have been two or three prior occasions, when Mr Verran has been violent towards her, of which the last incident in November of 2007 was the most serious.
I also accept that Ms Verran’s account of what occurred is likely to be the most reliable one.
Ms Verran deposed that Mr Verran had been drinking on the occasion in November when he came to her home. He had driven there.
He wanted to take the children away with him in his car. Something which Ms Verran would not countenance. This was the genesis of the argument between them.
Mr Verran called Ms Verran “an old bitch” and raised his fist to her. The children were sitting at the kitchen table. Ms Verran was standing up, when Mr Verran pushed her into the corner of the table, which caused her to fall against a wall and break the comb in her hair. The girls were very upset. Ms Verran was hurt and frightened. Mr Verran left but did not take either of the children with him.
Ms Verran concedes that the girls are on edge, when their father has been drinking. They later told her “we don’t like dad hurting you, Nana.” Ms Verran says that both she and the children were really upset by how their father had behaved. However, it is Ms Verran’s case that the children “still love their dad”.
It was suggested to Ms Verran that she was naive to think that
Mr Verran would not behave to her, in a similar way, in future, particularly if he did not seek professional assistance to curb his anger issues and drinking. She conceded that there was a possibility that this behaviour would recur.
It was also put to Ms Verran that she had failed [M] and [V] by not getting an apprehended violence order against Mr Verran or sought any other intervention, including reporting Mr Verran’s behaviour to the Northern Territory Police. Ms Verran did not accept that this was the case. It was her position that, during the incident, she was acting to protect the children and had done nothing to precipitate Mr Verran’s behaviour towards her.
For his part, Mr Verran conceded that he had pushed his mother, in November of 2007 then left. He said he left because he realised immediately that he had done the wrong thing. It was his position that the incident was a “one off”. As previously indicated, it is my view that Mr Verran has a propensity to under estimate the extent and seriousness of his behaviour.
In this regard, Mr Verran conceded that the Northern Territory child welfare authorities had been involved with him and Ms S, in the past because of concerns held regarding his violence towards Ms S. The Department had become involved because neighbours had called the police.
Mr Verran also conceded that he had a significant history of prior convictions and involvement with the police. On one occasion police officers had sprayed him with capsicum spray, at some time in 2003. In addition, he had been convicted of drink driving, in the middle part of 2008 and received a substantial fine of $2,500.00 together with a licence disqualification of twelve months.
As earlier indicated, in October of 2007, Mr Verran had been charged with assaulting police. For his part, Mr Verran conceded that he had “problems with anger and alcohol.” It was also his position that he had stopped drinking of late and, whatever his faults, he had never been angry or violent towards any of his children and had never drunk, in their presence, when they and he had been at his block.
To a certain extent, perhaps surprisingly, Ms Hort confirmed this evidence. As previously indicated, she said that “Mr Verran was a good bloke, when he wasn’t’ drinking.” She also confirmed that [M] and [V] were invariably excited at the prospect of seeing their father and went happily to see him, at contact changeovers.
Accordingly, leading up to Christmas of 2007, relations between
Ms Verran and Ms Hort were tense. In my estimation, they have never had much trust in one another. Up to that stage, neither had thought to formalise any arrangements in respect of [M] and [V]’s care. It was a highly unstable state of affairs.
From Ms Verran’s point of view, Ms Hort had abrogated all responsibility for the children to her and she had done an extremely good job in looking after them. From Ms Hort’s point of view, she now had a stable home and wanted the children back. However, she knew it was unlikely that, given the overall circumstances, Ms Verran would agree to any request from her in this regard.
On Christmas Day, Ms Hort arrived at Ms Verran’s home and asked to take the children for a few days over Christmas. After speaking with the children Ms Verran agreed that they could go with their mother provided she returned them the next day.
Ms Hort concedes that she had no intention of returning the children, as she had indicated to Ms Verran. It is her case that she was justified in taking things into her own hands because of Ms Verran’s unsatisfactory response to Mr Verran’s violent behaviour and her (Ms Verran’s) lack of candor in this regard.
I do not think that this was good parenting on Ms Hort’s part. No doubt she hoped that Ms Verran would meekly acquiesce to the new status quo, which she had engineered. In addition, Ms Hort seems to have given no consideration to the feelings of either [M] or [V], who rightly or wrongly, had been living with their grandmother for well over a year and, as I have found, during this period had infrequent and irregular contact with their mother.
Between Christmas Day and late January of 2008, Ms Verran received no word from Ms Hort in respect of the children. Ms Hort does not seem to think that her behaviour, during this period, is to be strongly criticised. I find this troubling. It was Ms Hort, on her own case, who had caused the children to be placed in Ms Verran’s care because she herself was not in a position to look after them. After Christmas Day, Ms Hort’s attitude towards Ms Verran appears to be one of distain or certainly lack of consideration.
On 29 January 2008, Ms Hort permitted [M] to return to Ms Verran’s home. This occurred because [M] was expressing a wish to see her grandmother. Ms Hort rationalises this wish, on [M]’s part, as arising because [M] was worried about her grandmother’s health, particularly that she might have a heart attack and have no-one to care for her.
The implication of Ms Hort’s evidence is that [M] was inappropriate assuming responsibility for her grandmother’s wellbeing rather than that the child had a desire to return to a household where she felt safe and secure and with which she was familiar. I think the latter reason is more likely to be the reason why [M] was anxious to return to
Ms Verran’s home – she regarded it as her home too.
At the time, Ms Hort was apparently content to separate the two siblings from one another. At the start of term one of 2008, she enrolled [V] at the [B] Primary School, which is more convenient to her home. Ms Hort deposes that [V] apparently told her that she ([V]) did not want to return to live with her grandmother.
The uncomfortable feeling, which I have, is that Ms Hort regarded both children as her “possessions” and, as such, she was entitled to do with them as she wanted, notwithstanding she had placed them in
Ms Verran’s care, either actively or passively, for a considerable period of time. It seems to me that she had little regard either for the children’s feelings, or for Ms Verran’s.
The school records show that [V]’s attendance at school, at [H], was irregular. Ms Hort attributes this to [V]’s anxiety at being separated from her. In my view, it is equally possible that [V] was distressed at being separated from her grandmother and sister.
As a result of this state of affairs, Ms Verran began these proceedings on 13 February 2008. Her application was given a first return date of 4 March 2008. Thereafter, the parties agreed to attend a Legal Aid conference. At this conference, the parties were able to agree on some interim arrangements for the care of the two children concerned.
It was agreed that [V] would be returned to Ms Hort’s care on 4 April 2008 and thereafter the two children would live with their paternal grandmother. It was further agreed that the children would spend time with their mother on each weekend from 4:00pm Friday until 4:00pm the following Sunday and for regular extended periods, during school holidays. The children were to be exchanged between the parties at the [omitted] supermarket at Coolalinga.
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
Above all, the impression Ms Pavlin gained was that the children regarded Ms Verran’s household as their home. She considered that [M] and [V] functioned “like a happy little pair” at their grandmother’s home, which Ms Pavlin likened to an island of calm for the two children concerned.
Ms Verran has confirmed that she does not get on at all well with
Ms Hort. More concerningly, Ms Verran has acknowledged that she has told [M] and [V] that she does not get on with the children’s mother. Without doubt, both [M] and [V] must be well aware of the poor relationship between Ms Verran and Ms Hort.
Ms Pavlin confirmed that Ms Verran did not raise any issues to do with the children’s Aboriginality with her. Ms Pavlin considered that
Ms Verran had some knowledge of these matters, particularly that the children went hunting, when they were with their mother and her family. Ms Pavlin also recognised that Ms Verran was aware that the children were part of a large, extended Indigenous family on their mother’s side.
As in her evidence before the court, to Ms Pavlin, Ms Verran vigorously refuted any suggestion that she had made racist comments in the presence or hearing of the children. In particular, she asserted that she had referred to [R] as a “bush pig” rather than as a “black pig” during a Christmas lunch some years ago.
As previously indicated, in her oral evidence to the court, Ms Verran was laconic and unemotional. There was one exception. This was when it was suggested that she was capable of making racist remarks. She raised her voice and stoutly refuted this suggestion. I did not disbelieve her.
However, that is not to say that I think Ms Verran is incapable of being passively dismissive of the Indigenous aspects of the children’s background. It is clear to me that Ms Verran regards Ms Hort as being feckless, dishonest and lacking in application, so far as the care of her children is concerned.
As such, it is not a large step to think that she will also, either consciously or unconsciously, allocate such attributes to the wider, generalised Indigenous community and the children will be aware of this. This may have implications for the children’s own sense of identity.
As previously indicated, relatives of Ms Hort are neighbours of
Ms Verran. The children told Ms Pavlin that they are no longer allowed to play with the neighbours children or refer to her as “Nana”. I am concerned that Ms Verran, through her poor attitude towards Ms Hort, is driving the dichotomy between the maternal and paternal aspects of [M] and [V]’s family. In the context of the Indigenous background of the children, this cannot be a good thing, particularly in terms of their development of a positive self identity.
It was Ms Pavlin’s sense that the children did have a feeling that they were Indigenous children. They clearly enjoyed hunting, fishing, eating bush tucker and doing craft work with their mother. As such, Ms Pavlin thought that Ms Verran needed “to make room for [these sorts of things] to happen for the children.”
Ms Pavlin also considered that the children needed to be exposed to positive Indigenous role models, in order to develop their own sense of identity. Of note was Ms Pavlin’s observation that [V] brought up the issue of her skin colour. However, Ms Pavlin did not think that this was to be regarded as “pathological” behaviour on [V]’s part, merely noteworthy.
Overall, Ms Pavlin’s assessment of Ms Verran and her level of input in the children’s sense of connection to the Indigenous aspects of their family was that she neither actively encouraged nor actively
dis-encouraged these aspects of the children’s lives. Ms Pavlin’s sense was that the children felt good about their background and there was no evidence that Ms Verran was actively dismissive of it.
Ms Pavlin’s assessment was that Mr Verran was fond of [M] and [V] and they were fond of him. This matches what Ms Hort has said.
Ms Pavlin did not think that Mr Verran was an organised parent and, as previously indicated, she thought he lacked insight into the consequences of his violent and alcoholic behaviour on others.
In regards to the prospects of Mr Verran being assisted by a process of intensive counselling or some other form of therapy, Ms Pavlin noted that “when people are damaged by violence, it is very difficult to turn them around”. At this stage, this assessment seems pertinent to
Mr Verran.
However, after speaking with both Mr Verran and Ms Verran,
Ms Pavlin gained the impression that the relationship between them was currently “fairly equable”. I do not think that either Mr Verran or Ms Verran are likely to have been calculating enough to want to deceive Ms Pavlin in this regard. Rather, I think it more likely that
Ms Verran’s evidence that there has been no further altercation between her and Mr Verran, since November 2007, is more likely to be true.
To Ms Pavlin, Mr Verran detailed his criticisms of Ms Hort’s parenting, which seem to match the criticisms he has made of her during the current proceedings. It remains his position that [M] and [V] will be better off if they continue living with Ms Verran, where they will have a stable home and will be well looked after.
Ms Hort confirmed to Ms Pavlin that, in 2006, she entrusted the children to Ms Verran’s care because she knew they would be safe and well cared for by Ms Verran and, at that time, her life was in crisis. From Ms Hort’s perspective, this arrangement was open ended and was not likely to be less than twelve months in duration.
Ms Hort described herself as being renewed after spending some time on the Tiwi Islands, with a fresh awareness of the importance to the children of having a full knowledge of their cultural origins and heritage, particularly being able to speak Tiwi with some level of fluency.
Ms Pavlin acknowledged the importance of these issues to Ms Hort. She also indicated that it was likely that Ms Hort was now “more grounded and ready, in her mind,” to resume the full-time parenting of the children, after her break from them.
Ms Pavlin considered that [M] and [V] had “a fond and confident connection with each of their main parenting figures.” At their grandmother’s they hugged her and performed a song and dance routine. At their mother’s the children spoke of bush walking and hunting “long bums” and learning which part of the water-lilly root was edible.
These are difficult issues, which have been at the forefront of political debate, within Australia, for several generations. In the context of this case, there is the possibility that, if [M] and [V] remain living predominantly with Ms Verran, the children may lose the benefits of being Indigenous children – a sense of connection and belonging to culture and a people – but retain the disadvantages – they will be subject to racism and stereotyping as members of some form of underclass, whether they like it or not.
The advantages stem from the “collective nature of Aboriginal family life”, which sees that “responsibility for the growing up of children invested in many people.”[32] In addition, Indigenous children growing up within an Indigenous context are likely to be inoculated, to a significant degree, against the detrimental emotional consequences of suffering racial discrimination.
[32] See Ralph ibid at page 144
They will have Indigenous people and role models to whom they can refer such an experience. As such, they will be able to put such an experience within a larger context of being an Aboriginal individual, surrounded by proud and wise kinsmen – something likely to be lost to an Indigenous child, who is predominantly living in a European milieu.
As Ralph puts it:
While the achievement of stable and affectionate attachments is a highly important developmental goal for all children, the achievement of a coherent sense of identity based on cultural affiliation is equally important.
…
The Aboriginal perspective is based upon a collectivists view of family and social life that sees responsibility for the growing up of children invested in many people. According to this view, children come to trust in the capacity and commitment of a multitude of people to care for them and nurture them through childhood and into adulthood. By this means children come to take their place in Aboriginal society where responsibilities and obligations to family and kin are deeply rooted and pervasive. From this perspective the disruption caused to a child’s primary attachment, for example, is out-weighed by the benefits arising from the child’s exposure to a broader and deeper network of family and kin to whom the child will eventually form strong attachments.”[33]
[33] See Ralph ibid at page 143 - 144
[M] and [V] have a bond with their mother, which was formed in their earliest infancy. This bond has been weakened but not extinguished, as a result of what occurred after Easter of 2006. In its place, the children have formed a significant attachment to Ms Verran, who does not share the children’s Indigenous background and is unlikely ever to play an active role in it, both because of her own cultural orientation and personal inclination.
It is likely to be traumatic and difficult for [M] and [V] to transition into Ms Hort’s care. It may also not accord with their present wish, as most recently evidenced by [M]’s desire to return to Ms Verran’s care, in January of 2008. However, as Ms Pavlin characterises them, [M] and [V] are resilient and emotionally robust children, who will cope with most things life serves up to them.
It is generally recognised as being beneficial for a child, being raised within a European nuclear family model, that he or she has a “stable, continuous, secure and affectionate relationship with at least one parent or adult care-giver” and to disrupt such relationships is likely to have a “negative developmental consequence for the child”.[34]
[34] See Ralph ibid at page 141
I accept that Ms Verran is and has been such a continuous, reliable, stable and affectionate care giver for [M] and [V] and has been more so than Ms Hort. Regrettably, it is my view that, for all sorts of complex reasons, Ms Hort has been unreliable, so far as the children are concerned. I remain concerned that she is likely to remain unreliable in regards to many aspects of these children’s ongoing care. However, Ms Verran is unable to provide [M] and [V] with the socio-cultural context which is likely to be most appropriate to them.
This is the nub of this difficult case. I do not think Ms Verran is a racist. She undoubtedly loves the two children concerned deeply, a love which is unaffected by their background. However, at both a deep emotional level and practically, she does not understand what it is to be Aboriginal. Ms Hort and her family do. [M] and [V] are and will remain Aboriginal children. As a result, at one level, in spite of her love for the children, Ms Verran will be unable to empathise with the societal position likely to be occupied by [M] and [V] and provide for them completely in this regard.
I am also concerned that because of her undoubted antipathy for
Ms Hort, Ms Verran will find it difficult to support the children’s sense of connection to their Indigenous background. In addition, she may unwittingly fall into the error of communicating stereotypical views to the children about Aboriginal people in general. As a result, I remain concerned that there is a very real possibility of [M] and [V] suffering some form of identity crisis, as they move from childhood to adolescence and beyond.
The issue in this case is how best to balance [M] and [V]’s undoubted need for security and reliability and their emotional attachments and other matters related to their care, with their right to maintain and enjoy strong cultural connections. It is not a balance which falls easily into place in my mind.
From Ms Verran and Ms Pavlin’s point of view, the balance will be achieved if the children live predominantly with Ms Verran and spend most weekends and significant proportions of each school holiday period with Ms Hort. To use Ms Pavlin’s phrase, the children will be able “to sally forth from a secure base” and to spend time with their mother and extended family.
From Ms Hort’s and Ms H’s perspective, such an outcome will be tokenistic and fraught with all manner of difficulties. From their point of view, [M] and [V] will only regard themselves as Tiwi if they are totally immersed in its culture, language and traditions. This can only come about if the children live predominantly within a Tiwi orientated household.
At this stage, Ms Hort has no plans to move to live permanently on either Melville or Bathurst Island. Her intention is to remain living in the rural outskirts of Darwin.
Ms Hort herself describes her life and education, up to this stage, as being in the “mainstream”. She attended high school in Darwin. In the past, she has visited the Tiwi islands for spiritual and cultural “rejuvenation” but has lived in suburban Darwin, as well as on its rural outskirts. This is the physical environment in which the children have lived with Ms Verran.
I am unaware of Ms Hort’s level of proficiency in the Tiwi language.
I accept that her desire that [M] and [V] learn the language at school is a genuine one. I also accept that Ms Hort enjoys hunting, fishing and gathering food in the bush and is able to pass on these traditions to the children.
Accordingly, if the children live with Ms Hort predominantly, they will not be moving directly to live on the Tiwi Islands. In addition, they will be exposed to Ms Hort’s present parties, Mr J, who is not an Indigenous person.
Accordingly, it is my impression that the children are unlikely to speak Tiwi predominantly in their mother’s household. In addition, it seems more likely than not that the children will engage in hunting and fishing, whilst with their mother and other family members on weekends and during school holidays. It also seems likely that the children will go to the Tiwi Islands, with their mother, when occasion demands that they should go, such as to attend a funeral or other ceremony, or for recreational reasons.
This case provides a different factual situation to that which confronted the court in M v L(Aboriginal Culture). In that case, the father was a Maung man, who lived in Eastern Arnhem Land. The mother was an Indigenous woman, who lived on the outskirts of Katherine. Many kilometres separated the parties’ two homes and there were great practical difficulties in the children spending periods of time with one or other of their parents, particularly during the monsoon season.
As such, Kay J observed that the children concerned in the case could not be maximally exposed to the two different and distinct cultural backgrounds of their parents. The children concerned in that case had to live predominantly with one parent or the other.
Similar considerations arose in Davies. The child concerned was under three years of age. She had lived with her European grandmother in rural Victoria since very shortly after her birth. The mother was a Western Arrente woman from Ernabella in the north of South Australia. It was found that the child would gain only limited benefit from interacting with the Koori people of Victoria, given her matrilineal Indigenous connections.
It was also found that the child needed to develop a positive connection with her mother’s culture to ensure her best interests were met. In order to maintain this connection, it was determined she needed to live in her mother’s community with her mother. By necessary implication, it would have only been possible for the child concerned to visit Ernabella infrequently because of logistical considerations.
I do not think that there are the same practical difficulties apparent in this case. The parties concerned live in relative proximity on the rural outskirts of Darwin. In my view, if the children concerned live with Ms Verran, it is still open to them to enjoy a connection to their Aboriginal background to a significant degree. However, the question remains is whether the outcome proposed by Ms Verran will serve the best interests of [M] and [V], not just for now, but in the longer term.
I do not consider that the outcome proposed by Ms Giacomo and adopted by Ms Verran will be tantamount to the children simply receiving information and knowledge about their cultural background, in a tokenistic or meaningless way. In my view, [M] and [V] will be able to have an active experience of the lifestyle, culture and traditions of the Tiwi people by being able to spend regular weekend time and school holidays with their mother and other relatives.
Ms Verran can never know what it is to be an Indigenous person. However, I do not think that she is a racist or would actively do anything to harm [M] and [V]’s sense of self identity. The children came into Ms Verran’s care because Ms Hort either actively or passively agreed to such an arrangement. In this sense, she recognised the children’s significant attachment to the paternal side of their family.
The Darwin area provides a complex multicultural and polyglot society. A significant proportion of its population are Aboriginal people, who lead a wide variety of lifestyles. As such, if the children remain living with Ms Verran, I do not think that it can be said that the children will be Indigenous children isolated within some form of white enclave. Many of their Tiwi relatives live in the suburban areas of both Darwin and Palmerston.
As Ralph has observed, the transmission of Aboriginal culture, from generation to generation, is highly influential in determining a child’s best interests, from the Aboriginal perspective. This was the import of Ms H’s evidence. I consider that [M] and [V] will be able to be part of this transmission of knowledge and culture, notwithstanding that they live with Ms Verran during the school week.
i)The attitude that each party has displayed to the responsibilities of being a parent
The responsibilities of being a parent are multiple and complex. One of them is to be available to participate in spending time with any child concerned and assuming responsibility for the care of that child [section 60CC(4)]. In this case, I am satisfied that for significant periods of time Ms Hort abrogated her parental responsibility for [M] and [V] to Ms Verran.
I accept that there were complex reasons why this situation came about. These include the problems confronting Ms Hort at the time. In addition, Ms Hort almost certainly thought it was time for the two children to spend an extended period of time with their mother. Such a notion accords with the collective view of child rearing, to which reference has already been made.
However, notwithstanding these factors, Ms Hort was essentially an absent parent, so far as [M] and [V] were concerned, for a period of around twenty months. During this period, I am satisfied that she only had sporadic contact with the children. Necessarily the children have become well settled in Ms Verran’s care, where they are happy. Accordingly, Ms Hort’s actions have created much of the dilemma in this case.
Another responsibility of being a parent is to ensure that a child attends school regularly. In my view, Ms Verran has shown herself to be the more reliable custodian for [M] and [V], so far as this responsibility is concerned. I reach this view because of [V]’s school record, when she was in Ms Hort’s care alone.
Currently, [M] and [V] appear to be happy, well adjusted and well cared for children. This is to Ms Verran’s credit. In my view, she is clearly motivated by altruistic concerns for [M] and [V]. Again, I point out that Ms Verran did not actively seek out the care of the two children concerned. Rather, they came into her care because of Ms Hort’s actions.
j)Any family violence order involving the children
k)Any family violence order
As Ms Pavlin points out, [M] and [V] have been exposed to family violence in every household in which they have lived. This include
Ms Verran’s household. However, so far as Ms Verran is concerned, I am satisfied that she has never been a protagonist of any such family violence but rather has been its victim.
It is the mother’s case that her household will be a safer one for the
two children concerned. She asserts that Mr J is a quiet and non-drinking person. Regrettably, given his absence from these proceedings, I am not in a position to make any assessment regarding him. As such, I am unable to conclude conclusively that Ms Hort’s household is indeed the safer one for these two children.
For the reasons already provided, I am satisfied that Ms Verran, from her own personal experience, is aware of the extreme dangers which family violence poses for children. In my view, she was acting protectively, so far as [M] and [V] were concerned, when Mr Verran assaulted her in November of 2007. I do not think that she can be significantly criticised for her behaviour on this occasion.
As such, I am satisfied that the children will most likely be protected from exposure to family violence, if they remain living with
Ms Verran. For the reasons already given, I have grave concerns about Mr Verran’s past behaviour and the level of his insight into the consequences, for others, of his past violent behaviour. As such, at this point, I agree with Ms Giacomo and Ms Hort that any time he spends with [M] and [V] should be supervised.
At this point, I do not think that there are any relevant family violence orders applying to either the parties concerned in this case or [M] and [V]. Ms Hort has been able to apply for such orders, on her own behalf, in the past. She is critical of Ms Verran for not obtaining such an order against Mr Verran, particularly after what happened in November of 2007.
I accept that it was open to Ms Verran to obtain such an order. She chose not to do so. I can understand why. I do not think her decision, in this regard, indicates that she is necessarily cavalier about the issue of family violence, so far as [M] and [V] are concerned. To the contrary, it is my view, gained from assessing her in the witness box, that she is sincere in her condemnation of such violence.
l)Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
This is a complicated case. It raises many difficult issues. In the past, the care of [M] and [V] has been fluid. The relationship between
Ms Verran and Ms Hort is poor and likely to remain so. These are not promising harbingers, so far as the avoidance of future litigation between the parties is concerned.
My impression of [M] and [V], gained particularly from Ms Pavlin’s evidence, is that they are happy and well settled in Ms Verran’s home. Given their respective ages, at the present time, they are unlikely to be deeply troubled about issues to do with their identity and where they properly belong.
This may not always be so. As I have indicated, the authorities speak of the real risk of Indigenous children suffering a sense of identity crisis at the onset of adolescence. It may be, as the children mature and gain insight they will form the view that where it is they live is simply wrong and this will inevitably lead to another round of litigation, with heart breaking consequences.
Whether this will be so for [M] and [V] is impossible to say. It is one factor which militates in favour of the children going immediately to live with their mother, notwithstanding other factors to do with their need for stability and predictability, so far as their day to day routine is concerned. At this stage, I have to the conclusion that the factors which fall for consideration under this heading are finely balanced and, as such, should not be highly influential in determining the outcome of this case.
Conclusions
As these lengthy reasons for judgment indicate, I have not found this to be an easy case to determine. Regardless of the difficulty, at the end of the day, it is necessary for the court to focus on how it believes the best outcome may be achieved for [M] and [V], after weighing and considering the various considerations relevant. Necessarily this is a process of synthesis. No one factor is necessarily determinative.
However, as I observed earlier, the essential nub of the case is how best to balance [M] and [V]’s need for security and predictability, with their right to maintain and enjoy strong cultural connections to the Indigenous peoples to whom they are matrilineally related, particularly the Tiwi people.
I have come to the conclusion that the balance will be best met if [M] and [V] continue to live with Ms Verran and spend the periods of weekend and holiday time with Ms Hort proposed by Ms Giacomo.
[M] and [V] are well settled in Ms Verran’s care. They appear to be thriving in her household. Ms Verran has provided them with a measure of security, which has been at times absent from their lives prior to this stage.
For the reasons already provided, I am satisfied that the children will have a sense of being Tiwi children and will have a meaningful sense of connection to that culture’s traditions and practices if they see their mother and other members of their maternal family regularly. At this stage, I think such an outcome is likely to serve the best interests of [M] and [V].
Ms Giacomo proposes that Ms Hort and Ms Verran have shared parental responsibility for [M] and [V]. Given the relationship between the mother and paternal grandmother, section 61DA of the Act does not apply to them.
Although the relationship between Ms Hort and Ms Verran is poor, given their mutual interest in the welfare of the children, I consider that they should each exercise parental responsibility for [M] and [V] in terms of making major long term decisions.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [Family Law Act section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Ms Giacomo proposes that the mother have parental responsibility for ensuring that [M] and [V] maintain a sense of connection with their Aboriginal culture and so far as religious instruction is concerned. I do not think such an order is necessary in this case. The mother will naturally assume responsibility for these matters, which are likely to come to the fore when the children are in her care.
Educational issues are another matter. In the short to medium term [M] and [V] should remain at the [B] Primary School, where they are well settled. Where they attend secondary school should be a matter for consultation and discussion between Ms Hort and Ms Verran, before a decision is made.
In my view the presumption of equal shared parental responsibility, so far as Mr Verran and Ms Hort are concerned, is rebutted by the issues related to Mr Verran’s prior violent behaviour. In addition, given the circumstances of this case, it would be unworkable for the presumption to be applied.
Pursuant to section 65DAE, parents do not have to consult on issues that are not major long‑term issues, particularly in the context of a child spending time with one of his or her parents. Accordingly,
Ms Hort will have authority to make day‑to‑day decisions for the children, during the many occasions when they will be in her care.
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 four hundred and forty-six (446) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 21 January 2009