Hort & Verran 2009 FamCAFC 214

A paternal grandmother commenced proceedings that resulted in a judge ordering two children aged 9 and 7 years to live with the paternal grandmother and to spend time with the mother.  The grandmother was delegated sole parental responsibility to decide about the children’s unsupervised access with their father based on his compliance with counselling on drug and alcohol matters and anger.  The mother had earlier left the children in the care of the paternal grandmother for an extended period of time.  The mother re-partnered and appealed orders.  No evidence was given about the mother’s new partner in the hearing, and this relationship ended by the time of the appeal.

The appeal challenged the weight given by the judge to the children’s right to maintain contact with their Aboriginal culture.  The mother who was Aboriginal submitted that the children should live with her as the children might lose their cultural inheritance if they remained living with the grandmother as the grandmother did not actively encourage links to the Tiwi culture.  The maternal grandmother had provided evidence as an elder about cultural issues and her evidence was admitted by the judge. The elder submitted that for children to absorb their culture they must live the culture through direct experience and not just learn about the culture in an intellectual way by being informed.

The judge had acknowledged that the paternal grandmother disliked the mother because of the mother’s lack of application towards the children, and the judge recognised a chance that the grandmother might pass on stereotypic views about Aboriginal people to the children resulting in the children having identity problems during their teenage years.  Evidence had been given that the mother’s house provided less structure and routine.

The Appeal Court noted that the judge had quoted previous judgments that the requirement for an Aboriginal child to maintain a connection to their lifestyle, culture and traditions involves an active need for the child to participate in the lifestyle, culture and traditions of the community to which they belong.  This need … goes beyond a child being simply provided with information and knowledge about their heritage but encompasses an active experience of their lifestyle, culture and traditions.  This can only come from spending time with family members and community.

The maternal grandmother spoke the Tiwi language to the children, and participated in many aspects of the Tiwi culture.

The Appeal Court discharged the order for the paternal grandparent to have delegated responsibility for making decisions about the father spending time with the children.  The other grounds for appeal were dismissed.