Waugh and Bannon

[2014] FCCA 893

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAUGH & BANNON [2014] FCCA 893

Catchwords:
FAMILY LAW – Children – Applicant [nationality omitted] Father, Respondent Indigenous Mother ([omitted] Island, Torres Strait) – child now 9 years of age raised by her indigenous extended family, estranged from her biological Father – in the child’s best interests that time not occur between the Father and child – “no contact” order made.

Legislation:

Family Law Act 1975, s.60CC

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011

MRR v GR (2010) HCA 4

Applicant: MR WAUGH

Respondent: MS BANNON

File Number: BRC 5500 of 2011

Judgment of: Judge Baumann

Hearing dates: 2-3 September 2013

Date of Last Submission: 3 September 2013

Delivered at: Brisbane

Delivered on: 6 May 2014

REPRESENTATION

Counsel for the Applicant: Mr Wilson

Solicitors for the Applicant: Sharma Lawyers

Counsel for the Respondent: Mr Sara

Solicitors for the Respondent: Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd

Counsel for the Independent Children's Lawyer: Mr McGregor

Solicitors for the Independent Children's Lawyer: Carter Farquar Lawyers

ORDERS

1. The Mother have sole parental responsibility for the child [X] born [in] 2005.

2. The Mother shall advise the Father in writing within fourteen (14) days of making any long term decision relating to the child’s education, religious upbringing, health or name.

3. The child live with the Mother.

4. The Father spend time and communicate with the child at all such reasonable times as is agreed between the Mother and the Father but not otherwise.

5. The Father is restrained from attending the child’s school without the consent in writing of the Mother first had and obtained.

6. The Mother provide the Father with a copy of the child’s school reports within fourteen (14) days of the receipt of the report by her and provide the Father with a current photograph of the child on an annual basis.

7. The Mother advise the Father in writing of any serious medical condition or accident suffered by the child within fourteen (14) days of such an even or diagnosis.

8. The parties will keep each other informed of their respective postal address and any change thereto for the purpose of any communication required of them under the terms of this order.

9. The Father pay to the Independent Children’s Lawyer the sum of $357.50 within seven (7) days of the date of these orders.

IT IS NOTED that publication of this judgment under the pseudonym Waugh & Bannon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 5500 of 2011

MR WAUGH

Applicant

And

MS BANNON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This Court is often confronted with cases where a parent (usually a father) has spent little or no time with a child and seeks the Court’s assistance in creating an opportunity to facilitate a child exploring a relationship with that parent.

2. They are difficult cases, often involving issues between the parents that shaped the lack of time previously taking place.

3. This is one such case, where the child (who is soon to turn 9 years of age) not only has spent no time with the Father, but really does not know of his existence or identity.  Apart from the Father’s failure at any time before 2011 to pursue time with his daughter [X], the unique additional characteristic in this case, is that [X] has been raised as a Torres Strait Islander child within a close and loving family in which her Mother, the Respondent in these proceedings, is the main, but not the only carer.  The process of evaluation and observation undertaken by the Court has been thorough although slow.  Through that process, the parents have rarely reached any consent arrangements – with the Court having been required to make a number of interim decisions to move the matter forward, in the child’s best interests.

4. Perhaps inevitably, this is one of those cases that was always headed for trial – which occurred on 2 and 3 September 2013.  The reasons which follow attempt to explain to the Father, in particular, why the Court is unable to support his genuine wish to spend time with his daughter.

Relevant brief chronology

1. Hereafter in these reasons, statements of fact shall be construed as findings of fact.  In particular, considering the orders which have been made during the currency of these proceedings in an attempt to explore the options available realistically to the Court, to create an opportunity for [X] to interact physically with her Father, the chronology gives some details and insight into those events.

2. The Father, who is of [omitted] ethnicity, was born in 1958 and is now 56 years of age.  The Mother, born in 1968 and soon to turn 47 years of age, is an indigenous woman who identifies herself as Torres Strait Islander with strong links to the [omitted] Island culture.

3. The parties had a brief relationship for a number of weeks in August/September 2004.  During this period, [X] was conceived.  It is likely that had [X] not been conceived, these parties would be unlikely to have reconnected in any way after September 2004.

4. At the time of this brief relationship, the Mother was living with her family, and managing with their assistance, the care of her six children being:-

   a)[A] (born 1994); [B] (born 1995); [C] (born 1998) and [D] (born 1999) whose father Mr S has maintained regular contact with them since the parents separated in around 2000/2001.  Mr S is not of aboriginal heritage.

   b)[E] (born 2001) and [F] (born 2003) whose father has not maintained any contact with them since the parents separated before [F]’s birth.

5. [X] was born [in] 2005 and shortly after her birth the Mother saw the Father at some local shops.  It was not an arranged meeting, and the Father showed little interest in seeing the baby other than a few minutes – disputing that he was the father.

6. This event, witnessed by the maternal grandfather Mr B, was described by Mr B as the Father “turning his back on” his daughter.  The fact that there was a number of years between that casual meeting, and the commencement of these proceedings by the Father only caused to demonstrated in the eyes of the paternal grandfather (and the extended family), the lack of genuineness in the Father’s current application.

7. In June 2011 the Father initiated proceedings in this Court, seeking a Commonwealth Information Order (to ascertain the whereabouts of the Mother), and ultimately that [X] spend alternate weekends and half of all school holidays with him.  It is clear that it was not until the Child Support Agency was causing deductions from the Father’s Centrelink to be made, that the Father decided to commence proceedings – particularly after DNA testing conducted in February 2011, which established him to be the biological father.

8. By November 2011, the Mother had been located and had filed a Response, as an unrepresented person, seeking essentially that the child have no “contact with the Applicant against her will” and that in the event contact is ordered, that the Mother be present if any contact occurs.

9. On 29 November 2011, the Court ordered an assessment by a Family Consultant and some ancillary orders that required the parties to exchange their full criminal history.

10. On 31 January 2012, Family Consultant Ms M, conducted an assessment and produced a brief report dated 9 February 2012.

    
    

    Ms M did not see the child, but after discussing the history with the parents, recorded that:-

    “The parents were unable to negotiate further.

    Ms Bannon needed to consult with her extended family.  She seemed unable to make a decision without their input.

    Mr Waugh’s priority appeared to be the child support debt.  This was weighing heavily on him.  He seemed to trust that eventually he would get to meet [X].  He did not appear to be pressing for this to happen within the immediate future.

    The cultural issues are a major component in this matter.

    Experience with children who have been adopted and fostered indicates that, generally, it is preferable for children to know the truth about their identity earlier rather than later.  They can then grow up accepting this as part of their life story.  Delaying telling a child about their biological parents can lead to the child experiencing anxiety and becoming distrustful of the parent who has concealed the information.

    The decision about when and how to tell [X] and indeed who will tell [X] about her parentage requires a judicial decision.  It is complicated by the cultural factors.  It is also complicated by the factor that [X] has already overheard some information and reportedly was distressed by this.

    If the Court were to decide that orders should be made for [X] to be told about and/or introduced to Mr Waugh, then it may be of assistance for the process to be facilitated through a section 65L intervention.”

11. In the face of that report, and the continued articulation by the Mother of her concerns about telling [X] of her biological father, the Court ordered on 14 February 2012 that:-

    a)The Mother could allow members of her family to read the Family Consultant’s report “for the purpose of assisting the Court in understanding how and in what circumstances [X] being introduced to her biological father can be supported by the family”.

    b)A notation, that the Court would ascertain whether the indigenous consultant and liaison officer in Cairns is available to play a role in the matter.  As the family report referred to later in these reasons reflects, Ms A, the Court’s indigenous liaison person, did come to Brisbane for the family report interviews.

12. By 19 March 2012 it was clear to the Court that the Mother felt unable to progress any time between the Father and [X] in circumstances where her extended family held significant concerns about doing so.  At this juncture, I should note that for many of the appearances the Mother made before the Court, she asked for her niece Ms B to speak for her.  Ms B, who is a law student, was highly articulate and respectful of the process.  When I saw the Mother ultimately at trial in the witness box, her shy and non-assertive nature was readily apparent.  In any event, a family report was ordered.

13. On 13 June 2012, interviews and observations were conducted by family consultant and social worker Ms O.  I deal more extensively with Ms O’s opinions and observations later in these reasons, however, her recommendations, which were adopted in practice by the Court were:-

    “(1)Mr A and Mr Waugh meet as soon as possible to discuss a time for a limited family gathering in which [X] is introduced to her birth father.

    (2)before the initial meeting, [X] be told by her mother and other significant adults about her birthfather, ensuring that she is given positive messages about him particularly from her maternal grandfather.

    (3)a process for a graduated introduction and getting to know you period between Mr Waugh and [X] commence as soon as practicable.

    (4)I concur with my colleague Ms M that a Section 65L supervision order may be the most appropriate way of progressing this and keeping this process on track.”

14. To facilitate (hopefully) the limited “family gathering” in which [X] was to be introduced to her birthfather (noting the further recommendation that the child be told by the Mother and her family about her Father in a positive way), the Court allowed the Mother to show the report to her brother, Mr A – a pastor in their local church, who was identified as a possible conduit for the changes that were recommended by Ms O.  What was envisaged was an informal gathering – to allow firstly the Father and the Mother’s family to get to know each other from which, it was hoped, that [X] would be introduced sensitively to her birthfather.

15. For reasons not agreed between the parties, the only attempt to “get together” with [X] was a family bar-b-que.  This was proceeded by an uncomfortable meeting at a coffee shop where the Father (apparently on legal advice) sought to record the discussion.  At the public gathering the Father remained distant from the child – I sense uncomfortable about the level of interaction (if any) he should have with [X] and also uncertain about the family’s support for him to do so.  In my view, then as now, the family does not support him engaging with the child.  The reasons for their position is dealt with shortly.  A number of delays in trying to arrange the family fathering occurred, and when it did, it was not successful.  It seems at or around this meeting, the Father was identified as “[first name omitted]” – a man who knew her mother many years ago.  So began, it seems to me, a degree of confusion for the child as to who this person was and why he was around.

16. After appointing an Independent Children’s Lawyer (“ICL”) on 8 October 2012, and in the light of the lack of success of any attempts at engagement between the Father and [X], on 1 February 2013, the Court made an order in very precise terms, as follows:-

    “1.This matter be adjourned to 9:30 on 11 March 2013  in the Federal Magistrates Court of Australia at Brisbane.

    2.That pursuant to s65L of the Family Law Act 1975 the child shall subject to the terms of this order spend time with the Father at 2:00pm on 5 February 2013 in the presence of Ms O (family consultant) and subject to the terms of this Order for up to two further occasions at 2:00pm on the 12 February 2013 and 5 March 2013.

    3.The said family consultant shall prepare a report as to the supervised visits.

    4.The Mother accompanied by her niece Ms B shall be entitled to have not less than 15 minutes with Ms O prior to the commencement of the supervised visit to explain to Ms O whether the Mother wishes to be present and why when the child is informed that her biological Father is present to meet her.

    5.Ms O shall be entitled to regulate entirely the manner in which and length of time in which any introduction of the Father to the child is undertaken.

    6.If the family consultant believes that the child should not have more than one opportunity to be introduced to the Father then she shall cause a memorandum to that effect to be prepared which shall be distributed to the parties.

    7.The family consultant Ms O have leave to read exhibit One today being a report of Dr V in respect of the Father dated 30 January 2013.

    …”

17. This order, supported by the Father and the ICL, was opposed by the Mother and her family.  Prior to this order, a psychiatric assessment of the Father on 15 January 2013 was conducted by independent psychiatrist Dr V.  His report dated 30 January 2013 was marked as an Exhibit in the proceedings held on 1 February 2013.  Dr V opined that although he could see “no specific psychiatric reason why he would be a significant risk to the child whilst caring for her”, he raised a cautionary note, that due to the Father’s lack of contact with the child and high degrees of observed “emotionality at times”, any time should initially be supervised as it is “difficult to gauge whether the Father will be able to appropriately manage his emotions whilst caring for the child or with the child”.

18. This recommendation appears to be shaped by the one of the conclusions of Dr V (who I note was relied upon by the ICL at the trial, but was not required for cross-examination) expressed as follows:-

    “It does appear however that the Father continued to experience considerable anxiety bordering on agoraphobia.  He is hyper vigilant to either physical or emotional attack from others and this leads him to have difficulty managing interpersonal conflict.  He also sees himself as being the victim of racism and due to his inability to trust others has somewhat of a paranoid stance.  Given these features, I would consider that the Father suffers significant personality vulnerabilities of a mixed type with some anxious avoidant traits and perhaps some paranoid traits as well as some Cluster B traits.”

19. The three supervised visits on 5, 12 and 28 February 2013 ended without, from the Father’s perspective, any positive conclusion.  In her report of such visits, Ms O observed a significant change in enthusiasm by the child (since the second visit), in engaging with “[Mr Waugh – first name omitted]”, and did not seem interested in engaging in any further play or conversation.  She clung to her Mother, despite the Mother’s attempts at encouragement.

20. When the matter returned to the Court on 27 March 2013, in light of the report of Ms O and in circumstances where the Father made it clear through his lawyer he wanted to pursue an order for defined time with [X] (vigorously opposed by the Mother), at the Court’s initiation Mr R was appointed a Court Expert to examine the material, and as directed by the ICL, to provide a cultural report on matters likely to assist the Court at trial, with the four questions specifically raised by the ICL being:-

    a)Under cultural lore from [omitted] Island customs and practices, should a child be told about a biological father whom she does not recognise as “her father”?

    b)Whether according to [omitted] Island culture the decision to introduce a child to a father should be made only by the adoptive fathers and not the biological father?

    c)Whether the Mother in these circumstances should be able to properly suggest that the cultural values of [omitted] Island extend to the facts of this case; and

    d)How the child should be introduced to the Father.

21. The report by Mr R dated 30 April 2013 was before the Court and

    
    

    Mr R was cross-examined as the first witness at the hearing.  Clearly the report, despite further negotiations between the parties, did not avoid the necessity of a hearing – which proceeded on 2‑3 September 2013.  The Father was represented by Mr Wilson of Counsel and the Mother was finally legally represented, with Mr Sara of Counsel appearing for her.  Mr McGregor of Counsel appeared for the ICL.

22. The Court apologises of the delay in delivery of these reasons in this difficult and complex case.

Principles

1. The orders I am asked to make are parenting order and as such the Court must:-

   a)Follow the defined legislative pathway being aware of the overarching objects and underlying principles.

   b)Be mindful of the requirement imposed by s.60CA that the best interests of the child or children are the paramount consideration, but not the only consideration.

   c)Give proper weight to the primary considerations (s.60CC(2)) and the additional considerations (s.60CC(3)) and must also consider the evidence in light of s.60CC(4) and (4A) of the Act.

   d)In certain circumstances apply a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

2. The Court notes that as the Application was filed before the commencement of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, s.60CC(2A) does not apply.

3. In addition to the general principles set out above, which assists in illuminating what has been described as the “legislative pathway”, the facts of this case also specifically draw into focus s.60CC(3)(h) and s.60CC(6).

4. Section 60CC(6) provides:-

   “(6)For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)     to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

   (ii)     to develop a positive appreciation of that culture.”

1. Furthermore, the Court must have regard to any “kinship obligations, and child-rearing practices, of the child’s Aboriginal or Torres Strait Islander culture”, when applying Part VII of the Act, to the circumstances of an aboriginal or Torres Strait Islander child (see s.61F).

Competing proposals

1. By final submissions, Counsel for the Father Mr Wilson (who could not have does more in the pursuit of his client’s genuine application), urged the Court to make the orders set out in the Case Outline filed 26 August 2013 which are annexed to these reasons and marked Appendix One.  The orders proposed a staged increase of time from six months of weekly interaction for three hours (either in the presence of the Mother or at a Contact Centre), and then increasing after 12 months to alternate weekends from 10:00am Saturday to 4:00pm Sunday and holidays and special days.

2. The Mother submitted that the Applicant should have no contact with [X], with a final order providing for the child to live with the Mother and for the Mother to have sole parental responsibility.

3. The ICL’s proposal, annexed and marked Appendix Two, does not seek a “no contact” order preferring for the Court to make an order that the Father spend time and communicate with the child “at all reasonable times as shall be agreed between the Mother and the Father but not otherwise”.  The Mother, according to the ICL’s proposed orders, shall have sole parental responsibility but shall be required to “advise the Father in writing within 14 days of making any long term decision relating to the child’s education, religious upbringing, health or name”.  The Father is to be restrained from attending the child’s school without the prior written consent of the Mother.

4. What lies at the core of this dispute is whether, on a proper application of the objects and principles set out in the Family Law Act 1975, it is in [X]’s best interests to be informed of the true identity of her biological father and also to be given the opportunity to develop a relationship with him.

The parents

1. The nature of the brief relationship the parents had, means that neither knew much about the other party, and I suspect they have learnt more through the investigations and assessment undertaken during these proceedings.

2. Although I find that the catalyst for the Father’s interest in [X] was the child support enforcement through his welfare payment, as the matter proceeded I am satisfied that the Father genuinely wants to have a relationship with [X]. As Dr V noted, to some extent his desire is fuelled by his own customs and values as an ethnic [omitted], who regards family as important.  Although he married young and did so as “the accepted custom” when the Mother of his now adult son became pregnant, he does not see his son now and he deeply feels a sense of that loss of relationship.  The death of both his parents and his periods of homelessness and destitution all add to him seeing his daughter as the only worthwhile thing in is life.  I pay tribute to the patience he has observed in these proceedings for so little actual engagement with [X].  It is not surprising, in these circumstances, that the Father will essentially take whatever he can get by way of time, so as to keep alive his hope of a relationship.  I do not ignore that to some degree, but in my view not as the major factor, the Father also regards it is fair that [X] get to know the children of his sister.  Apparently, their father is aboriginal.  At times the Father gave the impression that his sister’s arrangements with the father of their children were problematic and that he also feels “discriminated” by the focus on [X]’s aboriginality.

3. The Mother has relied heavily on her family to support and assist her to raise seven children born of three different fathers. In this circumstance, it would be quite natural and to be expected that the Mother, who presented as a shy and non-assertive person, looks to her extended family for guidance and direction.  The observance of the cultural practices of the Torres Strait Islander customs only reinforces, it seems to me, how difficult it would be to act contrary to her family’s wishes and those practices.  The Mother in any event has no personal desire to do so – however I acknowledge that she has always complied with the orders of the Court – even when she felt uncomfortable in doing so.

4. I propose to assess the evidence within the matrix of the relevant s.60CC(2) and (3) considerations, however to provide a context to those findings, I make some observations about the evidence from

   
   

   Mr R and the report writer, Ms O.

Mr R

1. Mr R is a forensic psychologist by profession and aboriginal person who has a long demonstrated experience in assessment and reporting upon indigenous families in all Australian contexts.  I accept his expertise qualifies him to provide advice to the Court upon indigenous cultural issues, particularly those relating to aboriginal and Torres Strait Islander child-rearing practices and kinship relationships.

2. For the purpose of his report, Mr R interviewed the Mother, the maternal grandfather Mr B and two other members of the Mother’s family.  He also spoke with Ms A and read a number of reports and affidavits filed in the Court.  He explains his decision not to interview the Father as “the referral questions were specifically focused on Torres Strait Islander cultural issues, and as such Mr Waugh’s views were not considered relevant or necessary in responding to these questions”.  Mr R did not speak to, or observe, [X].  Under cross-examination, the opinions set out in the report were explored, and I readily accept the evidence of Mr R that:-

   a)The family still lives and adopts the practices of the Torres Strait Island culture, even though the child has lived and continues to live in Suburban Brisbane.

   b)Mr B is the patriarch of the family.

   c)The maternal family draw on the underlying principles of traditional child-rearing practices, which he assessed as “genuinely held and based on an informed understanding of Torres Strait Island culture”.  As a result, the principles identified were:-

   i)Torres Strait Islander children are raised within a collective family culture in which other family and kin have a significant say in how the child will be raised, and by whom.

   ii)The fact of being a birth parent does not bestow on the individual any specific or exclusive right to make decisions as to how the child will be raised, and by whom.

   iii)It is accepted that children may grow up and age without knowledge of their biological parentage, even when this information is known to others.

   d)Although the facts in this case do not create a “traditional adoption”, there are strong cultural protocols “that restrain others from informing any adopted child of their biological parentage”.  The Bannon family, who adhere to the traditions of [omitted] Island have applied these traditions, customs and values to [X]’s situation.  The family are reluctant to go against the protocols and norms of their culture.

   e)From the perspective of [omitted] Island culture, adoptive fathers (or others) would never inform a child of their true biological father, and a biological father would not expect the child to be informed at any time.

   f)[X]’s cultural identity is that of a Torres Strait Islander child and the Court should have regard to the kinship obligations and the child-rearing practices of Torres Strait Islander peoples.

   g)The maternal families adherence to the cultural practices already mentioned, would make it difficult for them to change their views, that the Father has no right to have a say in any matter relating to [X].

Family Reports – Ms O

1. Although an initial assessment by family consultant Ms M helped to identify the issues (which really have not altered since that assessment in January 2012), the family consultant did not see [X].

2. That privilege was accepted by social worker Ms O who initially saw the child on 13 June 2012.  As the report dated 13 July 2012 notes, indigenous family liaison officer Ms A was present in family report interviews with the Mother and the extended family members identified in the report.  Furthermore, Ms O observed and facilitated some attempts at interaction between the child and the Father under the s.65L process ordered by the Court.

3. Ms O, under cross-examination, fairly acknowledged that on cultural perspectives, she would defer to the expert Mr R, who had raised concerns about the Mother and her family being required to break a cultural protocol.

4. I accept Ms O’s opinion, that from her observations the Father “has not yet grasped the significance to [X] of her extended family and Torres Strait Islander lifestyle”.  I accept that the Mother and her family are “quite resolute” about a no-contact order for [X] and as Ms O opined, if an order is made that is not “accepted emotionally” by the Mother and her family, it could undermine the “collective family structure” that supports and has nurtured [X] and which is her reality.

5. To the extent it may have been open to criticise Ms O about her decision not to introduce the Father as the “biological father” of [X] when they met on 5 February 2013, as articulated in her second report (at paragraphs 6 and 7) that the truth “was adhered to as much as possible within the bounds of [X]’s understanding, so that later as [X] learnt more about her circumstances, the initial information she had been given was not contradictory”.

6. As a result, it was decided to introduce Mr Waugh to [X] “as a man that her Mother had known before [X] was born”.  He was not referred to as “[first name omitted]” as it was likely the maternal grandfather may have made some negative remarks about a man named [first name omitted], which the child is likely to have heard.

7. A fair reading of the second report reveals in my view, that with the Mother always present, the child was polite and courteous for the first two visits, but by the last visit, the child’s demeanour had become more “clingy” to the Mother and generally unresponsive.  I cannot discount the possibility that after the second visit, that members of the Mother’s family may have spoken about the process in the hearing of the child.  Although the Father believes the mother and/or her family may have directly spoken to the child, there is no evidence this occurred.  However, the constant emotional resistance by the Mother to time occurring, wholly supported by the Mother’s family, would I believe be hard to disguise.  Regrettably, the s.65L process did not advance the matter greatly, although Ms O says they served “as a reality check for Mr Waugh, who has not experienced his daughter’s shyness and resistance and has been able to lower his expectations about the pace and nature of his likely future relationship with [X]”.

8. I must observe, although the Father’s proposal at the final hearing did include a graduated regime, the pace to overnight time and extended holiday time was, if time is permitted to occur, optimistic.

9. In her final analysis, Ms O, who had begun with a recommendation (at paragraph 35) that “now that [X] has started the process of getting to know her biological father, it would seem logical to see it through”, became less robust by the time of the hearing and after considering the report of Mr R.  She said, correctly in my view, that at this point in time we are at a “crossroad” where the Court must decide whether it is worth pursuing the goal of the child having a relationship with the Father or was it less damaging not to pursue a relationship at this time.

10. I do not criticise Ms O for regarding the dilemma at this point as finely balanced and difficult.  I too regard the issues as such – however, as required by law, the Court must make a decision as to which road [X] will travel for her infancy – acknowledging of course that when she becomes an adult, she may wish to pursue more information about or opportunities to meet her birth father Mr Waugh.

11. I accept the opinions and assessments set out in Ms O’s two reports that arise from her discussions and observations of the parties – upon which she was not seriously challenged under cross-examination.

12. Finally, I regard it as important to make the finding, consistent with all the evidence, that [X] presents as a healthy and happy child; content in the loving care of her Mother and her extended family; progressing satisfactorily at school and, whilst shy by nature, a quite social girl; identified as a Torres Strait Island child who has been reared within the customs and protocols of that culture and a child, who identifies Mr S as a father figure through his involvement with the Mother and as the biological father of four of her older siblings.

13. It weighs heavily in my consideration of this mater, that [X] has much to be thankful for and that I would be reluctant to put at risk this child’s sense of identity and security unless the benefits of doing so outweigh the risks.

Primary considerations

1. In the examination of the evidence which follows, in a narrative style, I will deal with the relevant primary and additional considerations, but rely upon (but do not repeat) findings already made in these reasons.

2. The Court must consider “the benefit to the child of having a meaningful relationship with both the child’s parents”.  In this context, “parent” means biological parent.  Ms O had expressed the theoretical and developmental norm that the child’s sense of identity is enhanced by an understanding of who their biological parents are, however, within the cultural values adopted in the Mother’s family the fact of “biological” connection is not important. They reserve the right within the family to inform the child – but no set timetable is applied.  The lack of interaction to date makes it extremely difficult to assess what might be the reaction of [X] to being told Mr Waugh is her biological father, however, there is no doubt at all in my mind that the Mother and her family would, although likely to comply with an order to do so, find such a breach of their cultural protocols as disrespectful and upsetting.  The child would whatever might be her reaction, remain within the primary care of the maternal family and have to confront the emotional hurdles created by such a decision, every day.  In this circumstance, this is hardly a clear case that the child will benefit in having a meaningful relationship with the Father – assuming it can be created.

3. Although the Mother and her family, knowing so little about the Father, initially raised concerns about his mental health, criminal record, behaviour and even right to live in Australia, in the final analysis of all the evidence, I do not regard the Father poses any risk to the child physically or psychologically save for one area of concern.

4. My concern is that because of his strong sense of entitlement that [X] has the right to “know the truth”, coupled with his genuine yet desperate desire to be a part of his daughter’s life, he would find it hard to mask his true feelings and could overwhelm the child – and probably confuse her, if not frighten her.  I do not suggest the Father would seek to create such an outcome – as his admirable patience through this long legal process suggests some insight – but rather he is an emotional man with a lot of pent up feelings.  Even the calm presence of his Mother might be unable to balance the child. This concern gives some support to the proposal of the ICL that an injunction be issued to restrain the Father from attending the child’s school.

Additional considerations

1. [X] has expressed no views about having contact with the biological father – simply because she does not know of his existence and has not been asked.

2. I am satisfied the child’s closes relationships are with the Mother and her extended family including her six siblings.  There is no need to try and “rate” the various relationships that she has with family members because I find, on the evidence, that she draws comfort, support and her sense of identity from all of them at different times and in different ways.

3. As is clear from these reasons, perhaps sadly, the reality for [X] is that she has no relationship with the Applicant Mr Waugh.

4. It cannot be ignored that it was the Father’s own actions in, firstly disputing paternity and then not taking any actions at all to make contact with the Mother to see the child for the first six years of her life, which set a poor foundation for commencing a relationship.  The Father did not seek to participate in making decisions or spend time with the child, and the Mother simply got on with her life and attended to the care of [X].  I accept the Father’s evidence that he was consumed by his own personal problems and those of his elderly sick parents, but the fact remains that he chose not to pursue any contact with [X] until he was forced to pay child support.  In these circumstances, I am not critical of the Mother’s resistance to involving the Father in decision making or supporting, unless ordered by the Court, to facilitate time.  It seems further for some years the Father did not pay any child support at all.

5. As the tenor of these reasons would reveal to a careful reader, the Court has formed the view on all the evidence that the effect on the child now of introducing the Applicant to her as “her father” and to then require her and the family to support what is likely to be a long and not necessarily successful process designed to have the child accept the Father in her life, is fraught with risks to her emotional and developmental stability.  The limited and irregular time (say even weekly short visits), would be diluted by the continuity of her accustomed home life being raised as a Torres Strait Island child within that culture.  In circumstances where she has come to believe that Mr S is “her father” of sorts and where the collective nurturing of the extended family has proved so supportive, putting those supports at risk of conflict with a developing insistence about meeting her biological father, in this case, is contrary to the child’s best interests.

6. I do not say that there are no benefits from knowing her father and learning about his heritage and the important customs of his [omitted] culture.  I accept, if the child was able to cope with the information, it could be enriching.  It is simply in the circumstances of this child’s current life, maturity and reality the benefits are outweighed by the disadvantages to her of the alternative.

7. In this case, I am satisfied the Mother has demonstrated the capacity to provide for the needs of [X] and she has the support of her family to do so.

8. Although the Father is critical of the Mother’s attitude to the responsibilities of parenting – manifest he would say in her failure to support his application to spend time with the child, I regard such criticisms in this case as unfair.  Although the Father says it is part of his [omitted] culture, that a father should marry the Mother of his unborn child, the Father did not take steps to acknowledge his parental responsibilities when the Mother saw him only a few weeks after the child’s birth.  In so doing, the maternal grandfather reacted as one might expect for any Father who saw his daughter “abandoned” - namely he thought poorly of the Father.  In my view, such a response by the maternal grandfather is founded in the love and support of his daughter and granddaughter – and not entirely the customs of the Torres Strait Islander people.  That his views are shared by the other family witnesses called by the Mother in her case (her brother and her niece) is hardly surprising.

9. I regard the order I propose to make as least likely to lead to further proceedings, as it will put to rest for the child’s infancy, any prospect of a relationship developing with the Father unless it were initiated by the child.

10. In particular, I refer to s.60CC(3)(h) and s.61F as earlier noted, and the evidence of Mr R (which I accept) and the evidence of the Mother and her family members as to the importance and practice of Torres Strait Island customs and protocols, further demonstrate that:-

    a)The likely impact of the parenting order sought by the Father for the child is potentially emotionally devastating; and

    b)The child rearing practices of the Torres Strait Island culture coupled with the kinship obligations which have been displayed by the family, from which [X] draws support, when taken into account as the Court is mandated to do, further supports the orders which the Court proposes to make which does not prescribe any actual time between the Father and [X].

Parental responsibility

1. Whilst the Mother, supported by the ICL, sought an order for sole parental responsibility, the Father sought an order for equal shared parental responsibility.  The evidence and findings above support an order for the Mother to have sole parental responsibility as the Father will not be spending any time with the child and there is no communication between the parents and that is unlikely to change – other than as ordered.

2. The Mother has, since the birth of the child [X], made decisions of both a long term and daily nature and should continue to have, in the best interests of the child, the sole authority to do so in the future.

Discussion and form of orders

1. I have observed the Father over many months in my Court and then in the witness box.  Although his actions shortly after the birth of the child were entirely inappropriate, in circumstances where the relationship with the Mother was brief, it is understandable that the Father may not have grasped the significance of the moment he saw the little baby when only a few weeks old.  It is unhelpful to speculate what would now be the position if he had – followed by ascertaining her true paternity then (if in fact he truly doubted the Mother’s assertion that he was the Father), and beginning a journey of support of the Mother and engagement with the child.

2. The Father would ask the Court to accept that he is the subject of discrimination because he is not an aboriginal person.  I reject that suggestion.  The Mother and her family, even within the boundaries of the cultural norms explored above, has readily accepted Mr S into their lives and as a father figure for [X].  Mr S, who did not give evidence at the hearing, is not an aboriginal man.

3. Where the Father in this case genuinely seeks a relationship with his daughter and has, from his history, lost so many important family relationships, it is easy to see why he has persisted doggedly in this litigation.  I am not critical of him for doing so, but sadly for him, this case is not about “his rights”.

4. The child’s best interests is the paramount consideration, and I have for the reasons, given above, come to the conclusion that the orders proposed by the ICL (which do not prescribe any defined time between the Father and [X]), are in [X]’s best interests.

5. The Mother’s proposed order that the Father has “no contact” is a harsher way of achieving the same effect as the orders proposed by the ICL – but without the stigma such an order often creates in the wider community.  “No contact” orders often are associated with behaviour of parents found to have been sexually or physically abusive of a child.  This is not such a case.

6. I accept the obligation, for any time to occur, that is must be with the Mother’s approval as things currently stand, means no contact will occur.  However, [X] is only 9 years of age, and I have confidence in this caring and loving Mother that, even if it is years into the future, if the child expressed a wish to meet her biological father, the Mother would seriously consider facilitating such a meeting.

7. It is inevitable, I suspect, that at some time in the child’s life, the role Mr Waugh played in her conception will be disclosed to her or otherwise uncovered.  The Court cannot change history.

8. However, if that never occurs, the Father can draw some comfort from the evidence in this case that [X] is developing into a healthy, well-adjusted child – proud of her aboriginality and supported by many of the extended family (in addition to the Mother), in her life’s journey to become an adult who will reach her full potential.

9. The orders appearing at the commencement of these reasons are in [X]’s best interests.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Baumann

Associate: 

Date:  6 May 2014

APPENDIX ONE
(Father’s proposals)

1. That the child, [X] (“[X]”) born [in] 2005 live with the mother.

2. That the parents have equal shared long-term parent9ing responsibility in relation to [X].

3. That [X] spend time with the father as follows:

   a)For the first six months following the date of the Final Orders – Once a week for a period of three hours supervised by the mother or at a contact centre with the timing and supervision to be agreed between the parties.

   b)For the next three months following the date of the Final Orders – Each second Saturday at the Father’s residence from 10:00am to 4:00pm.

   c)For the following three months following the date of the Final Orders – Each second weekend at the Father’s residence from 10:00am Saturday to 4:00pm Sunday.

   d)Commencing nine months after the date of the Final Orders at the Father’s residence:

   i)Half of school holidays.

   ii)Half day on her birthday and the father’s birthday where such does not fall on a school day.

   iii)On the Father’s Day (if not already spending time with him) from 10am to 4pm.

   iv)On Christmas Day – Half day.

4. The costs of any supervision or any costs related to the use of a contact centre be equally shared between the parties.

5. That the father shall communicate with [X] each Tuesday between 6:30pm and 7:00pm and the mother shall initiate the telephone call.

6. Both parents are to keep the other informed of a current contact address and telephone number and will inform the other parent in writing as soon as practicable of any such change.

7. Both the mother and the father must take all reasonable steps to ensure that the other parent is kept informed in a timely manner of any issues relating to the well-being, health and care of [X] whilst in their respective care.

8. That should a medical emergency arise in relation to [X] whilst in the care of a parent, the parent must notify the other parent as soon as practicable of the time and nature of such medical emergency, the name and address of any treating medical practitioner(s) and hospital and the location of the child. That by this Order each parent authorises any professional care provider of [X], for example (her school or doctor), to release any relevant information to both parents and, where applicable, both parents shall be at liberty to obtain any relevant documentation from the care provider (including but not limited to school reports, newsletters, school photographs and medical reports) with the parent seeking the documentation to meet any costs.

9. Each parent is to use their best endeavours to ensure [X] attend all her sporting and extra-curricular activities during those times that [X] is in their respective care.

10. Both parents are restrained by injunction from denigrating the other parent to [X] or in her presence or speaking in a non-positive way about the other parent to her or in her presence and/or permitting any third party to do likewise.

APPENDIX TWO
(Mother’s proposals)

1. That the mother have sole parental responsibility for the child [X] born on [in] 2005.

2. The mother shall advise the father in writing within 14 days of making any long term decision relating to the child’s education, religious upbringing, health or name.

3. The child shall live with the mother.

4. The father shall spend time and communicate with the child at all such reasonable times as shall be agreed between the mother and the father but not otherwise

5. The father is restrained from attending the child’s school without the consent in writing of the mother first had and obtained.

6. The mother shall provide the father with a copy of the child’s school reports within 14 days of the receipt of the report by her and shall provide the father with a current photograph of the child on an annual basis.

7. The mother shall advise the father in writing of any serious medical condition or accident suffered by the child within 14 days of such an event or diagnosis.

8. The parties will keep each other informed of their respective postal address and any change thereto for the purpose of any communication required of them under the terms of this order.

9. The father shall pay to the Independent Children’s Lawyer the sum of $357.50 within 87 days of the date of this Order.