W & S

[2000] FamCA 1753

[2000] FamCA 1753

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT   No. TV.389 of 1999

IN THE MATTER OF:	W	(Applicant Foster Mother)
AND	S	(Respondent Great Aunt)

REASONS FOR JUDGMENT

CORAM:	Justice Rowlands
DATE OF HEARING:	13 – 17 November & 6 December 2000
DATE OF JUDGMENT:	22 December 2000

Catchwords

CHILDREN - Contact
CHILDREN - Residence - Cultural issues

Legislation considered

Cases considered

APPEARANCES:

MR READ

MR RIETHMULLER

MR FELLOWS

of counsel, instructed by Boulton Cleary & Kern, appeared on behalf of the Applicant Foster Mother

of counsel, instructed by Wilson Ryan & Grose, Lawyers, appeared on behalf of the Respondent Great-Aunt

of counsel, instructed by Groves and Clark, appeared on behalf of the Child Representative

1. This case concerns living arrangements for an Aboriginal child named J who is aged 10. 

1. Presently she lives with a foster mother, the applicant in these proceedings, Ms W, in her household in Queensland.  Also living there are N, the daughter of a previous husband of the applicant and another woman, and two other foster children, S (8) and M (7), who are unrelated.  S and M are of Aboriginal descent while N is Caucasian.

1. The applicant was born in Holland and migrated to this country as a small child with her family, who settled in Victoria.  After a number of marriage failures she left the southern states for Queensland.  She does not maintain contact with her grown up children in Victoria or other family members.  She claimed Aboriginal descent, however all parties now appear to accept that this was not validly made.

1. The applicant seeks orders that provide for the child to reside with her and have holiday contact with Ms DS, the respondent, and her family.

1. J’s mother is Ms PS, who lives on the Island where J was born.  Mr PT is the child’s father.  He also lives on the island and is a carpenter. 

1. The respondent, a middle aged woman, is J’s great aunt, being the sister of her maternal grandmother and enjoys a status in the Aboriginal community ranking closely with a grandmother in respect of J.  She lives in MI with her partner and their children.  They range from 15 to 3 years of age. They visit Aboriginal friends and relations on the island from time to time.  J has had contact visits to the respondent, who now seeks residence of the child.

2. A Child’s Representative was appointed and appeared through counsel in the proceedings.  In final submissions the Child’s Representative’s counsel supported the respondent’s application.

1. It appears that when J was about six weeks old she was given to the applicant to look after by her single mother and the respondent.  For various and disputed reasons this arrangement has continued.  All parties and the father, who gave evidence, accept that the mother has an alcohol problem.  Despite being served with the appropriate papers she has taken no part in the proceedings.  The father, in evidence, supported the respondent’s application and I may generally infer that the mother probably does also.

1. The Family Law Act 1975 provides, in Part VII, that in the consideration of matters relating to residence, contact and other parenting issues the best interests of the child is the paramount consideration.

1. In determining what is in the best interests of a child the Court is obliged to consider various matters set out in Section 68F of the Act.  Briefly put these include the child’s wishes, relationships, the effect of changes in her circumstances, practical difficulties, the capacity of each parent to provide for the emotional and intellectual needs of the child, background, protection from harm, parental attitudes, family violence and other relevant circumstances.

1. The background and harm criteria to be considered in determining the child’s best interests are set out in the Section in these terms:

“(f)the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;

(g)the need to protect the child from physical or psychological harm caused, or that may be caused, by:

(i)being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or

(ii)being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person”

1. The object of Part VII is stated in the Act to be: to ensure that children receive adequate and proper parenting to help them to achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.  One of the principles underlying the objects is children’s right of contact on a regular basis except where this would be contrary to a child’s best interests.

1. To date the parents have taken little real interest in J.  As will later be discussed the father’s approach to parenthood is maturing. The mother’s desires remain unknown.  The respondent has an important place in the child’s family and her life.  She has an interest in her mother’s relationship with the child to which I will return. 

1. The Court had the advantage of a Family Report dated 28 June 2000 prepared by Dr B, a Family Court Counsellor who is a psychologist.  She concludes her report as follows:

   “81.[The respondent] perceives [J’s] future as one of not just learning about Aboriginal culture but also establishing her identity and relationship with her blood family. The latter topic is a deeper, unique issue related to Aboriginal Australians in their current position in Australian life. [The respondent] has spoken of her family’s historical experience of loss including fractured families, of land, a generation of children, their autonomy and self-respect.  According to [the respondent] [J] represents a symbol of that loss.  She needs to be restored to her family and her group.

   …

   84.[The applicant] has dealt with challenges on her “whiteness” previously and dismisses fears that [J] will be unable to cope with racist taunts. She believes [J] will develop multicultural competence having been reared with both white and black people.

   85.The parents dispute the nature of the giving/receiving of [J]. [The applicant] is adamant she was given [J]. She does not know about obligations of reciprocity.  She must have been uncertain about keeping [J] in 1992 because she attempted to negotiate a legal document.

   86.[J] has lived with [the applicant] for ten years.  For the last six she has had minimal contact with her mother’s family due to loss of communication through distance.  From a European world viewpoint [J] has formed a strong attachment to [the applicant] and to her siblings.  She would like to live with [the applicant] and see [the respondent] for the holidays.  [The applicant] will endeavour “to grow up” [J] to be a good citizen with a knowledge of both cultures.

   87.From [the respondent’s] Aboriginal viewpoint [J] has been lost or stolen from her blood relations.  It is expected [J] will search for personal and family identity in the future.  Although she has had ten years attachment to [the applicant] her most significant attachment should be to her own group.  [J’s] best interest is to have a firm racial identity, to know her own family and their history and to be prevented from being an outcast among her own people.”

1. In the witness box Dr B’s position was much more supportive of the respondent’s case for residency.  She relied upon her general learning, part of which came from her own academic studies and a seminar which included Aboriginal elders together with her knowledge of the circumstances of this case.  I will return to these matters at a later stage.

1. While acknowledging the child’s wishes were expressed as: she would “like to live with Mum and visit Nanna for holidays”, Dr B said she did not put much weight on those wishes.  She said:  “I did get the impression that she had been schooled up to say that.”  She made it clear that such “schooling” would have been by the applicant.

1. Turning now to relationships.  J has lived for ten years with the applicant and been brought up with three foster siblings, none of whom are related.  The general body of evidence does not suggest that relationships within that group are other than generally good.  Dr B reports (paragraph 86 quoted above) that a strong attachment has been formed.  However there was disturbing evidence from Ms H, who helped in the household, that N (14) made disparaging racist remarks and hit J with a jug cord.  Ms H is a witness I accept.  She made proper concessions and appeared truthful with no apparent motive to lie about these things.  The incidents described go beyond normal sibling arguments and are disturbing.  She was also critical of aspects of home management including nutrition and discipline, and referred to tension in the house between the children and the applicant.

1. J has no relationship, at this stage, with her natural parents.

1. It appears that the applicant has not wished to foster a relationship between the child and her mother or members of her clan.  She may not have known who J’s father was.

1. I accept the evidence of the respondent that she has been frustrated in establishing contact by the applicant, although she has had some success.

2. Further I accept that the respondent has, albeit mildly, persisted, for many years, in her attempts to have J returned to her family.  As a traditional Aboriginal woman brought up on the island it is understandable that she has not pushed as hard as one might normally expect.  While the handing over of J to the applicant was a voluntary act in which the mother and the respondent co-operated, it appears to me that her retention of the child was not consensual.

1. The relationship between J and the respondent is good.  The number of visits which have taken place have been successful.  Given the respondent’s relationship, household, experience and nature, and indeed her accepted likeness to J, this is not surprising.

1. Coming now to the effects of changes in circumstances and practical difficulties.  The applicant and the respondent live many hours travel apart by road.  Weekend contact is not practical because of this and the fact that air travel is too expensive for the parties.  Telephone contact and school holiday contact are practical.  It is part of the respondent’s case that she will arrange visits to the island from time to time for J to see both of her parents and family and tribal members.  This adds a further dimension to travel, although all is reasonably practical during school holidays.  Expense remains a problem for the parties.

1. Changing the child’s established situation in the circumstances outlined is likely to be quite traumatic for her in the short term at least.  The Court Counsellor, Dr B, was of the view that other factors outweighed this hopefully short term deficit.

1. It is convenient to look at parental attitudes and capacity, background, and protection from harm together.

1. By and large the applicant appears to care for J adequately although there are deficits in her parenting.  She is, I accept, strong in her desire to keep drink out of the house when entertaining.  However there was convincing evidence of a steady reliance on ‘junk food’ and a lack of sustained proper foods together with slackness in relation to homework supervision, despite her evidence to the contrary.  Reference has been made elsewhere to tensions and apparently unnoticed or unchecked abuse from N directed to J.

1. I accept that the applicant has a capacity to present her household in a better manner for authority than its usual state, but this may be a relatively normal human trait.

1. The respondent appears to run a good house for herself, her husband and six children in an Aboriginal community.  She demonstrated good parenting sense arranging for two of her daughters to attend boarding school when she became concerned about the company they were keeping.  The respondent presents as a decent capable woman of strong faith who is in a good partnership with a steady man who is also an Aboriginal.

1. Concerning background, the particular matter here relates to J’s need to appropriately maintain her Aboriginal connection.

1. The respondent was an impressive witness.  She appeared to be an Aboriginal woman of traditional Aboriginal views and values.  As a member of the N Tribe, who apparently come from an area around [a country town], north of T, she maintains her connection with her family, clan and culture in T and on the island. Visits to the island give her the opportunity to take J to visit her father and her mother who live in this predominantly Aboriginal environment.

1. The applicant is a European woman of fair complexion who claimed to be of Aboriginal decent.  She told the Court that her paternal grandmother was an Aboriginal girl shipwrecked on the Dutch coast.  She said that a child (who later became her grandmother) was taken from Australia in the late 1800s to Europe.  She produced a photograph from an Australian publication and suggested that a small Aboriginal girl in the photograph had been identified by Aboriginal elders as her grandmother.  It became obvious that the photograph was taken in the early 1900’s and could not have depicted her grandmother if her version of events were correct.  When this became apparent her evidence changed to the effect that the girl depicted in the photograph was the sister of her grandmother.  Despite her alleged research the applicant did not produce birth certificates or other registration documents from Holland regarding her parentage of a kind that one might expect from a researcher who has the benefit of a tertiary education. The respondent’s legal advisors obtained birth certificates from Holland for the applicant herself, her parents, her paternal grandmother, and her grandmother’s mother.  Records dating back to 1786 were produced.  These confirm that the applicant’s ancestors were Dutch born to that time.  There is no real doubt that the applicant is not of biological Aboriginal decent.

1. The applicant’s Aboriginality was something that she apparently “discovered” about 10 years ago.  She said her research in this area flowed from something her mother told her about her heritage.  It appears that she has a strong desire or need to be a member of the Aboriginal community.  She has been accepted by some Aboriginal people as a community member, no doubt on the faith of her story, and she has, with the assistance of Abstudy, obtained a University degree.  To her credit the applicant has established strong friendships and taken a stand against excess alcohol use within the Aboriginal community.  Presently she is married to an Aboriginal.  He was in gaol for murder when they met and remains there.  The relationship now appears to be over.  I am inclined to accept evidence that she has been in a romantic or physical relationship with another Aboriginal.

1. Particularly relevant to this topic but also as a general observation upon the witnesses, counsel for the Child Representative felt able to make the following submission which I consider is supported by the evidence.

   “With the exception of [the applicant], the Child Representative considers that each of the witnesses may be regarded as credible.

   [The applicant] presents as a puzzling figure.  It is a compliment to her that she has an openness to and involvement in the aboriginal community in ways that are not commonly seen amongst European Australians.  But it is her reason for doing so that is concerning.  It is clear that she has an underlying pathology / psychology that has not been explored and that she has not allowed to be explored.  Her claim to an aboriginal descent, or put another way – her apparent need to claim an aboriginal descent is a source of real concern.  This presents a problem in assessing the witnesses who support her in the sense that it is difficult to predict how they will react to and regard [the applicant] when the “fraud” becomes apparent.  If for example she ends up “cut off” from them then, … she will become even more isolated and “without family.” (The applicant has no relationship with her adult children in Victoria, her parents or her eight siblings, and she failed to be frank about two of her four marriages.)

The consequences for the child if this were to occur are concerning.

1. J will have supervised contact with her mother if she is with the respondent.  The applicant will not encourage it.  Well handled, this is desirable particularly if the mother’s situation improves.  I am satisfied the father’s situation has improved dramatically.  At the time of J’s birth he was a ‘playboy’, drinking and having short term relationships which on a number of occasions produced children.  He kept company with the mother for a matter of weeks and their relationship had ceased before J’s birth.

1. Now he speaks with legitimate pride of the fact that he is a fully qualified employed carpenter who does not drink.  He has a perhaps romantic ambition to build a house and have all his children in it.  Certainly appropriately managed contact between him and J, via the respondent, is both feasible and sensible. 

1. Dr B, particularly following her M seminar with Aboriginal elders, expressed a view, really their view, but which she appeared to accept concerning a similar hypothetical case, that the consequence of the child not being returned to her group would mean she would “go for dying.  She will have no identity  …  that could lead to suicide.”  She would become an “outcast.”

1. It appears to me important that the child know, grow up with, feel connected to and be accepted by her own people – including, if possible, her own clan.  I gain the impression that allowing J to grow up with a Caucasian foster mother, a Caucasian foster sister and two Aboriginal foster siblings from a different clan was seen as placing her at serious emotional risk in the circumstances.  While the Aboriginality factor is, of course, but one factor in the total consideration of the child’s best interests, it is an important one in this case.

1. Another concerning matter in the home of the applicant is the evidence of Ms H in relation to racist taunts and violence toward J at the hands of N.  I accept the evidence that the taunts have been made and the flogging of J by N with a jug cord have occurred.  The direct involvement of the applicant in these actions is not suggested.

1. I have come to the conclusion, after a consideration of the appropriate matters, that it is in the best interest of J that she live with the respondent and have contact with the applicant.  My concerns about the level of care and supervision in the applicant’s home are considerations but the strong desirability of J having, and being encouraged to have a knowledge and close association with her family, her clan and her people, is a prominent factor.  It is clear that her relationship with the respondent is warm and her prospects for a meaningful association with her people and her biological parents are significantly enhanced by such an arrangement.  Her father is clearly ready for that and likely to contribute to her life by reason of his personality and maturing interest in family matters.   This close association would not only facilitate a closer connection with J’s clan on the island and their culture but also with her stepsiblings.

1. The child’s relationship with her mother is likely to be given the best prospects of fulfilment if the respondent is the residential carer. 

1. There also remains the shadow of the applicant’s puzzling personality exemplified by her living a lie or a fantasy concerning her past and her origins, combined with her failure to relate to any members of her own family: children, parents or siblings.

1. Nonetheless there are some experimental elements in this proposal.  True J would see her long term foster siblings on contact with the applicant.  However J has been ten years with the applicant and, despite the serious deficits, their attachment is strong.  Accordingly I propose to take a precautionary approach.  Contact of the only practical kind will occur namely for half of school holidays and residence in the first instance will be of an interim nature.

1. Unless a party makes an application to the Court between 15 and 31 October 2001 (and serves it upon the other parties) the interim orders I propose to make will become final orders on 1 November 2001.  In the event of a party making such an application Dr B will undertake a supplementary Family Report concerning relationships, wishes and other relevant matters for a short, probably telephone hearing on or about 10 December 2001 which will then lead to the final determination.  (Directions would be made in November concerning any other evidentiary material).

2. I was grateful for the assistance I received from all counsel during the hearing which included extra efforts to adduce evidence in difficult circumstances.

*No application of the kind mentioned in paragraph 43 was made.  Accordingly the interim orders became the final orders.