Wry and Marney and Anor

[2011] FamCA 1026

FAMILY COURT OF AUSTRALIA

WRY & MARNEY & ANOR [2011] FamCA 1026

FAMILY LAW – CHILDREN – Consent orders made – Family Report containing matters of cultural significance

Family Law Act 1975 (Cth)

APPLICANT: Ms Wry

1st RESPONDENT: Ms Marney

2nd RESPONDENT: Mr Reno

INDEPENDENT CHILDREN’S LAWYER: Malcolm Kennedy

FILE NUMBER: DNC 550 of 2009

DATE DELIVERED: 29 September 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 29 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McGee

SOLICITOR FOR THE APPLICANT: Aboriginal & Torres Strait Islander Women’s Legal Service NQ

THE 1ST RESPONDENT: In person

THE 2ND RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Kirkman-Scroope

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Kennedy Spanner Lawyers

Orders

IT IS ORDERED BY CONSENT THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. The Independent Children’s Lawyer is discharged 6 months from today.

3. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

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

FAMILY COURT OF AUSTRALIA AT  BRISBANE

FILE NUMBER: DNC 550  of 2009

Ms Wry

Applicant

And

Ms Marney And Mr Reno

Respondents

EX TEMPORE

REASONS FOR JUDGMENT

1. At the outset of the proceedings today, and I think – I think on a earlier occasion, I made it clear to the parties that the experience of this court is that the best result that can be achieved for children in circumstances such as the present, is for those who care about those children to agree on the arrangements that should apply to them.  It has been, for all of you a long, and I'm sure, a difficult day.

2. I am a non-indigenous Australian, and I do not pretend to understand the intricacies of Australia’s indigenous cultures.  However, from what I have been told, from the cases that I have done and from what I have read, the notion that those who are kin to a child should form an integral part of the child’s life, is central to those cultures.  So also is the notion that disputes should be talked about, and wherever possible, agreement reached.

3. The parties have, today, sensibly and intelligently, reached an agreement in respect of B’s future arrangements.  They have done so with the assistance of an indigenous liaison worker, Ms C.  Her assistance is very much appreciated by the court. 

4. Ms C and the Court also had input from a thorough, comprehensive, thoughtful, and ultimately very helpful family report prepared by family consultant, Ms D.

5. I record that the report provided information about matters important to the E people.  Both parents agree that the child is from the E people, and this is her rightful cultural identity. 

6. The report also provided important information about matters of cultural significance to Aboriginal & Torres Straight Islander people more generally.  Again, I want to record how helpful Ms D’s report was in that respect.

7. I want to incorporate into these short reasons some things that Ms D said in her family report.  Ms D observed the child in the homes of both the mother’s and the father’s family groupings:

   147.Importantly, the most predominant recurring feature throughout the interviews with the child’s family is the significant investment available to her from all of her maternal (adoptive and biological) and paternal family members. [The child’s] parents, her maternal biological grandmother, her maternal adoptive grandmother and her paternal grandmother are all determined that the child grow up a proud, confident, strong, moral, educated and politically informed Indigenous woman.

   148.[The child’s] maternal and paternal families are also committed to the child learning and carrying with her the separate histories of her maternal and paternal family. The stories, cultural heritage and history that belong to the child’s mother’s biological family (i.e. Yirrkala Bark Petition in 1963) and the father’s biological family (i.e. Marney Native Title case in 1992) are significant to both Indigenous and Non-Indigenous history and law.

   149.Both of the child’s parents value their own separate family links, but they are both particularly proud of the child’s connection to her [E] clan and country. Importantly, both parents expressed a strong desire for the child’s connection to her [E] identity to be promoted and protected.

   …

   202.It is evident that [the child] has much to enjoy and experience from significant time with both her maternal and paternal families. The family’s differences in cultural rules, lifestyle and personalities will likely complement the opportunities that the child has over time.

8. Mr Reno, Ms Marney, those paragraphs, I remind you, speak of the fact that both of the child’s family groupings care for her, love her very much, and want what is best for her.  I think that is extraordinarily important for everybody in this case to understand and to bear in mind. 

9. In terms of the Objects, Principles and Considerations which the Family Law Act 1975 (Cth) (“the Act”) obliges me to consider and analyse in assessing the child’s best interests, I consider the matters addressed in Ms D’s report relating to continuity of care, attachment, relationships with siblings, the willingness and capacity to promote time and relationships with other family groupings, the responsibilities of parenthood, and importantly, the promotion of a particular aboriginal culture, to be particularly important.

10. I have also had regard to what is said in Ms D’s report about the two Primary Considerations. 

11. I will not, in the context of these reasons which sustain consent orders made between the parties, address the first of the two Primary Considerations in detail. But, I have noted, and attached significant weight to, the matters contained in Ms D’s report from paragraph 25 on page 3 through to page 6 of the report, and again, paragraphs 172 to 184 of that report.

12. To the extent that issues of abuse are raised in these proceedings, as that expression is defined within the Act, in terms of rule 10.15A, those same matters contained in Ms D’s report to which I have just referred, satisfy me that those matters have been dealt with appropriately in the orders that are proposed to be made by consent by all of the parties, (and which are supported by the Independent Children's Lawyer).

13. In summary, I consider that the orders proposed to be made are in the child’s best interests. 

14. Finally, I want to say to the parties, and in particular, to the father and Ms Marney, that it takes great courage and strength to be able to agree to orders that might be different to those which are desired. 

15. All parties in this case should be congratulated on their ability to reach agreement.  It is a sign, as Ms D says in her report, that all parties love and care for the child. I also want to congratulate the parties, and in particular, Ms Marney and Mr Ryan, on their strength and courage in being able to reach an agreement which, in my view, at least, is in the child’s best interests.

16. I thank the legal practitioners for their assistance in arriving at these orders, and I want to again thank Ms C and Ms D for their considerable assistance in this case.

17. I will note, for the record, that The Independent Children's Lawyer, through his counsel, gives an undertaking to provide a clean copy of the orders via email sent contemporaneously to the other parties within seven days.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 29 September 2011.

Associate: 

Date:  3 November 2011