Carden & Hilliard and ANOR 2014 FamCA 438
Children aged 9 and 7 years who were of Aboriginal and South Sea Islander heritage lived with their mother. Both the paternal grandmother and her late husband had extensive involvement in the Indigenous and South Sea Islander Community, and they had played significant roles as caregiver, provider, protector and supportive counsellor in raising and assisting children from other families. The paternal grandmother spoke of a tradition of South Sea Islanders where grandparents intervened when parents were deemed unable to provide appropriate care for children (culture).
The judge quoted previous authorities that if children were not linked to their culture, there was a loss of relationships with a vast range of kin who could perform a wide variety of roles associated with social relations, emotional and physical support, educative knowledge, economic interactions and spiritual training.
The judge commented about the ongoing emotional relationship between the estranged father and mother. The mother reported that the father had threatened another man she was seeing and said, “He seems to enjoy wrecking any relationship I have with anyone else.” The family assessor considered it highly probable that both the mother’s and the father’s inability to emotionally disengage from one another would fuel further conflict. The judge found that the father had coached the children to make allegations against the mother.
The judge commented that there was an underlying fact at play, that the father had not emotionally disengaged from the mother and he probably saw his capacity to make allegations of abuse by the mother as a means of controlling her, and perhaps even of reconciling with her. The judge expressed a view that the father was likely to continue to use the children as a means of exerting control over the mother. The judge considered that the risk of emotional harm posed by the father to the children was an unacceptable risk.
The judge noted that on occasions when the mother planned to become under the influence of alcohol, the mother had arranged for family members to care for the children and she had left the home to drink. The judge found that this was a serious consideration adverse to the mother (alcohol abuse).