Family Court of Australia

Donnell & Dovey	[2010] FamCAFC 15	

FAMILY LAW - CHILDREN – With whom a child lives – With whom a child spends time – Relocation – from Brisbane to the Torres Strait – Adequacy of reasons – Where the child’s mother had died and child was living with eldest sister – Where the Federal Magistrate ordered that the child eventually leave the sister’s care in Brisbane to live with the father in the Torres Strait – Cultural issues – Torres Strait Islander culture – Aboriginal culture – Indigenous child-rearing practices – Where according to Wakka Wakka traditions it is culturally appropriate for a child to live with their eldest sibling upon the death of a parent – Exceptions to the practice – Limited evidence – Where the Federal Magistrate considered the placement of the child’s half-siblings with their respective fathers – Where the father had been largely absent from the child’s life – Not open to the Federal Magistrate to find it culturally appropriate for a child to live with their father upon the mother’s death
FAMILY LAW - EVIDENCE – Absence of anthropological evidence – Where the parties did not seek to place anthropological evidence before the Federal Magistrate – Whether the Federal Magistrate should have adjourned proceedings until further evidence was available – Where the Federal Magistrate accepted the evidence of the parties in relation to cultural issues
FAMILY LAW - LEGISLATION – Family Law Act 1975 (Cth) – Best interests of a child – Definition of “parent” – Section 60CC – Application of primary and additional considerations to a non-parent – Application of section 61F 
FAMILY LAW - DISCRETION – Parenting capacity – Where the Federal Magistrate made a finding based on the father’s intentions to parent the child – Whether the Federal Magistrate had adequately considered the father’s past conduct in relation to parenting the child
FAMILY LAW - EVIDENCE – Expert evidence – Reliance by Federal Magistrate on the single expert’s evidence – Differential treatment of parties by the single expert – Methodology employed by the single expert led to a perception of bias – Procedural fairness was not afforded to the sister by the single expert in preparation of the expert’s report – Emphasis placed on the child’s Torres Strait Island heritage – the child’s Aboriginal heritage was not properly considered – Emphasis placed on “parent-child relationship” without consideration of cultural context – Where the Federal Magistrate erred in relying on the single expert’s evidence – Appealable error established – Appeal allowed	

Evidence Act 1995 (Cth), s 144
Family Law Act 1975 (Cth), s 60B, s 60CA, s 60CC, s 61B, s 61C, s 61F, s 64B, s 64C, s 65C, s 65DAA, s 69ZX(3)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Family Law Rules 2004 (Cth), r 15.59(3), r 15.63
Federal Magistrates Act 1999 (Cth), s 42
Federal Proceedings (Costs) Act 1981 (Cth), s 6, s 8, s 9	

A v J (1995) FLC 92-619 
Aldridge & Keaton [2009] FamCAFC 229
B and R and the Separate Representative (1995) FLC 92-636 
Champness & Hanson (2009) FLC 93-407 
Davis v Davis (2008) 38 Fam LR 671
Hort & Verran [2009] FamCAFC 214
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3  NSWLR 378 
In re CP (1997) FLC 92-741
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 
Marsden & Winch (No. 3) [2007] FamCA 1364 
McCall & Clark (2009) FLC 93-405 
Mulvany & Lane (2009) FLC 93-404 
Potts & Bims [2007] FamCA 394 
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 	

Appellant:	Ms Donnell	

Respondent:	Mr Dovey	

Independent children’s lawyer:	Michael Emerson	

File Number:	BRC	2316		of	2008	

Appeal Number:	NA	29		of	2009	

Date Delivered:	10 February 2010	

Place Delivered:	Perth	

Place Heard:	Brisbane	

Judgment of:	Warnick, Thackray & O'Ryan JJ	

Hearing date:	23 September 2009	

Lower court jurisdiction:	Federal Magistrates Court	

lower court judgment date:	3 March 2009	

LOWER COURT MNC:	[2009] FMCAfam 515	

REPRESENTATION

COUNSEL FOR THE Appellant:	Ms Brasch with Ms Umashev	

SOLICITOR FOR THE Appellant:	Parker Family Law	

COUNSEL FOR THE RESPONDENT:	Mr Linklater-Steele	

SOLICITOR FOR THE RESPONDENT:	Brisbane North Family Law	

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

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Emerson Family Law	

Orders
(1)	The appeal be allowed.
(2)	The orders made by Federal Magistrate Howard on 3 March 2009 be set aside.
(3)	The matter is remitted for hearing before a Federal Magistrate other than Federal Magistrate Howard.
(4)	There be no order for costs. 
(5)	The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
(6)	The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
(7)	The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by him in relation to the appeal.
(8)	The Court grants to each of the parties and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the rehearing of the application.

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

THE FULL COURT OF THE Family Court of Australia at BRISBANE	

Appeal Number: NA 29  of 2009
File Number: BRC 2316  of 2008

Ms Donnell 	
Appellant

And

Mr Dovey 	
Respondent

REASONS FOR JUDGMENT
Introduction
1.	This appeal concerns O B-Dovey, the eight-year-old son of Mr Dovey and the late Ms B.  
2.	O is descended from two indigenous groups.  His father is a Torres Strait Islander and his mother’s people are from the Wakka Wakka tribe.  The appeal raises important issues concerning O’s indigenous heritage.  
3.	O’s mother and father lived together for about two years before they separated in 2002, when O was seven months old.  The father returned to live in the Torres Strait.  O remained with his mother in Brisbane, together with his half-brother and half-sisters from his mother’s previous relationships.    
4.	O’s mother died in a motor vehicle accident in 2007.  Ms Donnell, the appellant, is her eldest daughter and O’s eldest half-sister.  She and her husband have cared for O since the mother died.  
5.	O’s father had seen O on only four brief occasions from when he went home in 2002 until the death of O’s mother.  Upon learning of her death, the father travelled to Brisbane and spent about 10 days with O.  They stayed in the home of the mother’s brother, where three of O’s half-sisters were also staying.
6.	O commenced living with Mrs Donnell and her husband shortly after the funeral of the mother.  The father was unhappy with this arrangement and decided O should live with him.  In September 2007 he instructed solicitors to prepare an application to secure that outcome.  The application was signed but never filed.  By this time the father had returned to G, on the mainland, where he had been living for some months.  In due course he went back to the Torres Strait.
7.	After an unsuccessful attempt at mediation in January 2008, proceedings were commenced by Mrs Donnell in March 2008 in which she proposed that O live with her.  The father opposed the application.  An interim consent order was made for O to remain with his sister, but arrangements were made for him to spend time with his father.  As it turned out, O’s father was only able to see him on a few occasions before trial.
8.	The father’s case had been that O would live in the Torres Strait, where the boy would be immersed in the local language and culture.  However, just a few weeks before trial the father returned to live at G, where he decided he would remain for about two years before going home to the Islands.
9.	Immediately following the two day trial in March 2009, Federal Magistrate Howard decided that O should live with the father.  The change in residence was to be introduced gradually; however, the operation of the orders was later stayed pending this appeal.  
10.	… We will refer Mr Dovey as “O’s father” or “the father”.  We will refer to Mrs Donnell as “O’s sister” or “the sister”, and we will sometimes refer to her husband as “O’s brother-in-law”.  In citations from the Federal Magistrate’s reasons we will substitute “the report writer” for the name of the report writer.   
Background  
11.	The following brief background is drawn largely from the findings of the Federal Magistrate; however, in some instances we have relied upon other material which we understand is not controversial.  
12.	O was born in 2001.  He is the only child of the relationship between the father and the mother.  O was given the name “O … B-Dovey”.    
13.	O lived with both parents until their separation in 2002.  We have already referred to the limited involvement the father had in his life from 2002 until the death of O’s mother in 2007.  
14.	In the absence of findings by the Federal Magistrate, we will not detail all of the various claims about what occurred immediately following the death of O’s mother.  It is sufficient to say that O’s sister gave evidence that she was unhappy with what she understood to be the father’s decision to allow O to remain living with her late mother’s brother.  She took O and he has remained with her ever since.  
15.	O’s sister commenced proceedings in March 2008, seeking sole parental responsibility and an order for O to live with her.  She proposed that O spend time with the father for a total of four weeks each year.  At trial she proposed an order for equal shared parental responsibility.  She also proposed that while the father remained at G he would have O each second weekend and for half of all school holidays.  If the father returned to the Torres Strait she proposed that he have O for all of the school holidays, apart from the Christmas holidays which would be shared equally.  She also proposed weekly telephone communication.  
16.	The father’s amended Response sought that O live with him and that he have sole parental responsibility.  He proposed that while he was still living in G the sister would have O on one out of three weekends and for half of school holidays.  He proposed that upon his return to the Torres Strait the sister would have O for the whole of the June/July school holidays and half of the Christmas holidays.  He also proposed weekly telephone communication.
17.	O’s father was 33 years of age at the time of trial.  He married his present wife in November 2008.  They had been in a relationship for about five years and they now have a daughter, who was born in 2008.  At the time of trial they were living in the home of the wife’s mother at G, which is about a four hour drive from Brisbane.
18.	O’s sister was 21 at the time of trial.  She and her husband were married in 2007.  They now have two children.  The first, a boy, was born in 2007.  The second was born after the trial.  
19.	At the time of trial, O was living with the sister and her family in B, which is a northern suburb of Brisbane.  His other half-siblings were also living on Brisbane’s north side.    
•	N, then nearly 18, was living in … about 20 kilometres from B;
•	M and K (12 and 11) were living with their father, Mr M, in L, which adjoins B; 
•	C (5) was also living in L with her father, Mr G.    
20.	O’s parents come from large indigenous families.  O’s father has numerous relatives, spread over many generations, in the Torres Strait.  O’s mother was a Wakka Wakka woman.  O’s sister gave evidence that the land of the Wakka Wakka runs from Proserpine to Brisbane.  She has many relatives in Brisbane.
The Federal Magistrate’s orders
21.	During the trial O’s sister and father agreed all of the orders that would be made once the Federal Magistrate determined with whom O would live.  
22.	The Federal Magistrate decided that O should live with the father.  The parties had agreed that if this was to occur, O would spend gradually increasing times with his father.      
23.	The first orders made by the Federal Magistrate were those agreed concerning parental responsibility and the promotion of O’s appreciation of his indigenous heritage.  These orders were as follows:  
1.	That except as provided for in paragraph 2 below, the Applicant and Respondent will consult each other and use their best endeavours to reach agreement about major long term issues for the child O … B-DOVEY born 2001 (known as O …), including but not limited to:-
(a)	the primary school to be attended by the child
(b)	the secondary school the child attends;
(c)	the child’s name; and
(d)	the child’s health; and
(e)	any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with either party as provided for in these orders.
2.	That with respect to the child’s shared Aboriginality and Torres Strait heritage:
(a)	the party with whom the child lives shall be responsible for ensuring the child learns about and is involved in both the Aboriginal and Torres Strait Island aspects of his shared culture;
(b)	notwithstanding (a), the other party will be entitled to advise the resident party of cultural events, happenings or age-relevant teachings and the resident party will use their best endeavours to facilitate the child’s involvement in those events, happenings and age-relevant teaching;
(c)	further, when the child spends time with a party, that party is entitled to involve the child in their own traditions and practices.
AND IT IS NOTED, with respect to cultural issues, both parties acknowledge their respect for the other party’s culture and importance to positively promote the child’s shared Aboriginality and Torres Strait heritage.
24.	It appears the first of the orders was drafted in these terms because the Federal Magistrate was doubtful that an order could be made allocating “parental responsibility” to a person who is not a parent (Transcript, pages 63 to 64).  As we will later discuss, this was a misapprehension (as was belatedly drawn to his Honour’s attention during closing addresses – Transcript, page 157).  As it turns out, no order has been made for allocation of parental responsibility.  This appears contrary to the intent of the parties (see Transcript, pages 64, 66 and 131).   
25.	The Federal Magistrate’s orders then laid down the agreed program by which O would spend increasing periods of time with his father.  This involved:
•	for the first three months, O spending time with the father each alternate weekend from Friday afternoon to Sunday afternoon;
•	for the next three months, O spending time with the father for three out of every four weekends from Friday afternoon to Sunday afternoon;
•	the weekend visits being suspended during school holidays in these two periods (i.e. O would spend all school holidays with his sister);
•	O moving to live with the father at the end of these two periods.    
26.	The Federal Magistrate next made an order preventing the father from relocating to the Torres Strait before January 2011.  This consent order was made in the context of the father’s plan to remain in G for two years.   
27.	The orders went on to provide that once the relocation occurred, O’s sister could spend time with O for all school holidays, save for the Christmas holidays which would be shared equally.  The costs of travel were to be shared equally.  In the meantime, whilst the father was still at G, O’s sister would be able to spend time with O each second weekend and for half of school holidays.    
28.	The orders also made provision for O’s sister to communicate with O by telephone, letter, email and Skype.  
The Federal Magistrate’s reasons
29.	The trial was conducted over two days in March 2009, at the conclusion of which the Federal Magistrate delivered judgment.  We might observe that the learned Magistrate set himself an ambitious task in delivering reasons ex tempore in a case such as this.  
30.	After referring to some factual background, his Honour said he should consider “the applicable sections and sub-sections in pt.VII of the Act”.  He first recited ss 60B(1) and (2), which set out the objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying those objects.
31.	His Honour also set out s 60B(3), which deals with the right of Aboriginal and Torres Strait Islander children to enjoy their culture.  He observed that the case was very interesting because O “has at his disposal two diverse, ancient and very rich cultures”.  He went on to say that he had no doubt that O was going to live a life:
which will be the envy of children around the world because of the importance that the people closest to him in his life have placed upon their cultural heritage.  That is to say, the Aboriginal cultural heritage and the Torres Strait Islander heritage.
32.	His Honour then set out s 60CA, which directs the court to regard the best interests of the child as the paramount consideration.  
33.	His Honour next referred to s 60CC, which indicates how a court determines what is in a child’s best interests.  He noted that this essentially involves the court considering the matters set out in ss 60CC(2) and (3).  
34.	His Honour then recited s 60CC(2), which contains the two “primary considerations” to be taken into account.  His Honour noted that the first of these is “the benefit to the child of having a meaningful relationship with both of the child’s parents”.  His Honour said that unfortunately O now had only one parent.    
35.	His Honour went on to say (emphasis in the original): 
18.	It is worth noting at this point in time that whilst s.60CC(2)(a) is indeed the first stated primary consideration, it is a consideration which has to be taken into account and (for want of a better term) “considered” along with the additional considerations which are set forth in s.60CC...  
36.	Having noted that the other “primary consideration” was not relevant, his Honour found there could be no doubt that it would beneficial for O to have a meaningful relationship with his father.  He said that “in respect of that issue concerning the importance of s.60CC(2) I will before perfecting final orders, turn my mind to the specific cases I have been referred to by counsel this afternoon”.  His Honour did not return to identify those cases, nor did he discuss how he turned his mind to them.  However, he did say it was clear: 
19.	… that the first stated primary consideration is a matter which has to be given due weight having regard to the fact that it is referred to as a primary consideration but cannot be seen as a defining consideration in respect of any parenting order.  Any order that is made, it goes without saying, must be consistent with the best interests of the child.
37.	His Honour then turned to consider s 60CC(3), which sets out the “additional considerations” that must be taken into account.
38.	Having found that O’s views ought not be given any weight, his Honour moved to s 60CC(3)(b), which concerns the nature of the child’s relationship with each of the parents and with other persons (including any grandparent or other relative of the child).  Given that one of the grounds of appeal directly challenges this part of his Honour’s reasons, we set it out below in full:   
22.	I find that the child has an excellent relationship with his father.  I find that the child has a close and loving relationship with his father.  By the same token, I find that the child has an excellent, close and loving relationship with his older sister, [the sister], her husband, [O’s brother-in-law] and his other maternal relatives.  I also find that it is highly likely to be the case that the child will get along well with the father’s nuclear family.  I will make no comment about the extended family because of generally the lack of evidence in relation to them.
39.	His Honour next referred to s 60CC(3)(c), which refers to “the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”.  His Honour said he would consider that subparagraph “even though it refers specifically to parents”.  He recorded that it seemed to him that both parties had presented as willing and able to facilitate and encourage a close and continuing relationship between O and the other party.  He noted that, to their credit, the parties had been able to substantially agree the orders to be made, other than the primary issue of “residence”.  His Honour found this pointed towards their willingness and ability to encourage the relationship between O and the other party.  
40.	His Honour next discussed s 60CC(3)(d), which is in these terms:  
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)	either of his or her parents; or
(ii)	any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living.
41.	As this is an important factor, we will repeat all his Honour had to say about it:
25.	In this regard there will of course be a period of transition no matter what occurs.  In particular, with the father living in [G], it will take some time for the child to become used to travelling to and from [G] between his current home in [B] and the father’s home in [G].  I am satisfied though that wherever this child remains living primarily or wherever this child lives primarily, the support that he will receive from those people who are closest to him will soften any impact or likely effect of an adverse nature upon the child as a result of the travelling and the movement that is almost inevitable in this child’s life.
26.	The father, of course, is proposing to live in [G] for a period of approximately two years.  After that the father proposes to return to the Torres Strait.  My comments in relation to the changes in the child’s circumstances include the situation where the father is in the Torres Strait.  I do not consider that there will be any undue, long term, negative impacts upon the child whether he remains living primarily in [B], primarily in [G] or primarily in the Torres Strait.
42.	The next provision considered was s 60CC(3)(e), which relates to the practical difficulty and expense of a child spending time with and communicating with a “parent”.  His Honour said that “clearly it won’t be easy”, especially when the father returned to live in the Torres Strait.  However, no matter where the child was living it seemed to his Honour that the parties would (because they had already agreed to do so) share the cost of travel that would enable O to maintain “proper contact with each party”.  (We note there was no ground of appeal directed to this finding, notwithstanding the difficulties that had already been experienced in ensuring that contact visits occurred when arranged.)
43.	Paragraph 60CC(3)(f) relates to the capacity of each of the child’s parents and any other person, including grandparents or relatives, to provide for the needs of the child, including emotional and intellectual needs.  His Honour expressed satisfaction that each party had the capacity to provide for these needs.  He particularly noted that the father had worked at various jobs, including traditional fishing in the Torres Strait.  
44.	The next factor considered was s 60CC(3)(h), which is clearly of importance given that O’s mother was Aboriginal and his father is a Torres Strait Islander.  This provides as follows:
If the child is an Aboriginal child or a Torres Strait Islander child:
(i)	the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and
(ii)	the likely impact any proposed parenting order under this Part will have on that right.
45.	His Honour expressed his satisfaction that whatever order he made, O would have the opportunity to enjoy both cultures, including the right to enjoy those cultures with other people who share them.  
46.	His Honour then dealt with the factors in paragraphs 60CC(3)(i) through to (m), although he recognised that some of the findings about these factors touched on some of the others already discussed. 
47.	In dealing with this group of factors, his Honour first referred to the father’s evidence that he had prepared an application for O to live with him in September 2007, but this had not been pursued because his lawyers failed to prosecute the matter.  His Honour found that the father had “evinced an intention” to apply for an order for O to live with him and accepted his explanation why this had not occurred.
48.	His Honour also considered it was important to note the father’s evidence that he had previously considered making an application for “custody” while O’s mother was still alive.  The Federal Magistrate accepted the father’s evidence that the mother had threatened to “disappear” if he did so, and it was for that reason he had not proceeded.  
49.	His Honour then found that O’s sister and her family “identify as members of the Wakka Wakka Tribe”.  He recorded that the sister had given evidence that part of the Wakka Wakka tradition is that “it is the responsibility of an eldest child to raise a younger sibling in circumstances where the parents have passed away”.  He then recited the following very important paragraphs from the trial affidavit of the sister:
38.	Our Mother was a woman of the Wakka Wakka tribe and their land runs from Proserpine to Brisbane.  I also identify as a Wakka Wakka woman.  The tribal line is matriarchic and it is the women who are dominant and assume the leadership role.  Our Mother helped her sisters to look after their children if they could not manage and the women keep the family together.
39.	When a parent passes away, it falls to the oldest child to look after their financial affairs and the younger children and to make the necessary arrangements.  That is how it has always been in my family, so the role I have taken on with [O] is culturally appropriate.  The Respondent was barely there and I took that place and took on that responsibility.  I respectfully ask that this Honourable Court have regard to the kinship obligations and the child rearing practices of our Aboriginal culture.
40.	The Aboriginal Elders are usually Grandparents and older people and they hold a special place in our community and have a respected status.  The Elders know more and therefore it falls to them to teach the younger people in the tribe.  Our Nanna, [S], who is my Grandmother’s first Cousin, is an Elder and I can seek her out for advice and guidance if needed.  She lives nearby at [MD] and works as a Drug and Alcohol Counsellor.  In her spare time, she also works with troubled indigenous children and attends camps with them.
50.	His Honour said he accepted the evidence of O’s sister that “when a parent passes away it falls to the oldest child to look after their financial affairs and the younger children and to make the necessary arrangements”.  However, he went on to say that the “situation in respect of this matter requires some closer consideration”.  He then noted that three of O’s half-sisters had been living with their fathers since the death of O’s mother.  His Honour said:
36.	This set of circumstances appears to me to be consistent with the applicant’s evidence of the Wakka Wakka tradition.  To put it another way, if there is a suitable parent available it is not inconsistent with the Wakka Wakka tradition for a child who has lost one parent to go and live with the remaining suitable parent.  In this case, for the reasons that I will continue to enunciate, I consider that there is a suitable parent and that of course is the father.
51.	His Honour then found that the father had close cultural and family connections to the Torres Strait Islands.  He said it was “not surprising” that the father had returned to the Torres Strait after separating from O’s mother.  He went on: 
37.	… It is also not surprising, on one level, that the separation occurred between himself and the mother in view of the evidence before the Court that it is a part of the Wakka Wakka tradition that a mother plays a dominant role and the evidence before the Court that it is part of the Wakka Wakka tradition that a mother may take several partners and have children with those several partners. 
52.	His Honour then dealt with the significance of the father’s absence from O’s life  As this is of considerable importance we will repeat all his Honour said: 
38.	The father then travelled of course to live in the Torres Strait after he separated from the mother.  What impact does his absence during that time have upon the outcome of these proceedings?  The tyranny of distance has been referred to by … counsel for the Independent Children’s Lawyer.  In this case there are the following issues:-
a)	the tyranny of distance is inter-twined with cultural issues and the need for both parties to spend time with relatives and friends sharing a similar cultural background.  That is why I have found that it is not, to my mind, altogether unusual that the father went to the Torres Strait after separation;
b)	I accept the father’s evidence that he attempted to organise to have the child visit him in the Torres Strait; those attempts were unsuccessful;
c)	I accept his evidence that the mother on occasions agreed that the child could come to visit but then changed her mind.
53.	His Honour then noted that O’s father and sister had once had a good relationship and said he was satisfied, having regard to the fact that they had substantially agreed on most of the orders to be made, that “their formerly good relationship will be re‑enlivened” when the proceedings were concluded.
54.	His Honour found there had been “one instance of family violence” [i.e. between O’s parents]; however, he accepted the opinion of the report writer that the father was “not an habitually violent person”.  His Honour noted that no party had sought to make any particular issue of that one violent incident.  He also noted that the relationship of O’s parents had been “rocky” and the mother had used marijuana “inappropriately”.  
55.	The Federal Magistrate then referred to the father’s “fishing career in the Torres Strait”.  He noted the father’s evidence that for periods of time “he may or may not be fishing”.  His Honour inferred from this evidence that the father was in a position where he could be flexible with his fishing activities.  He said he would infer that the father would restrict his time away fishing when he and O were living in the Torres Strait.  He also noted the father’s evidence that he had had land‑based jobs.  He accepted that, if necessary, the father would obtain a job on land.
56.	His Honour found that O had enjoyed his time with his father in the Torres Strait when he had visited recently.  He also accepted that O had “greatly enjoyed living primarily with his older sister and her husband” who he accepted had been “excellent role models”.  He also accepted that they would continue to be excellent role models because in the years ahead “[O] will continue to spend a significant amount of time with the [sister] and her extended family”.
57.	His Honour noted that O’s brother-in-law had recently been promoted and had been able to “obtain relatively substantial income”, which would mean that the parties would have the capacity to share the cost of travel once O began living in the Torres Strait.  He went on to express his satisfaction that the time O would spend with his father in the Islands would enable the father to teach the boy “the traditional ways of the Torres Strait Islanders, including, importantly, the art of fishing – not only from the cultural perspective but as a possible future working career”.
58.	His Honour then expressed satisfaction that O’s mother’s family would ensure O was “well versed in the traditions of his Aboriginal culture” during their time with him.  He found that the father and O’s sister were “essentially gentle people with [O’s] best interests at heart” and that O would enjoy the benefits of both cultures.
59.	His Honour then turned to consider the two reports of the report writer who had been appointed during the proceedings.  He noted that she had twice visited the Torres Strait to observe O with his father.  (This was incorrect as O was not with the father when she made her first trip.)  He noted that the report writer had also been to O’s home in Brisbane to observe O with the sister, her husband and extended family.  He expressed his satisfaction that the report writer “had sufficient time and opportunity to observe [O] with both the [sister] and her family and with the father”.  He noted, without making any further comment, that the report writer had referred in her report to “Aunty [S]” who his Honour found “holds an important position within the [sister’s] family”.
60.	His Honour next referred to a submission by O’s sister’s counsel concerning Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”).  He noted that the submission essentially was that little or no weight should be given to the two reports for a number of reasons:
including the fact that, in counsel’s submissions, the report writer over‑emphasised the importance of the Torres Strait Islander culture to the detriment of a proper examination of the Aboriginal culture and the relative importance of both cultures.
61.	His Honour said that for reasons he had already stated he did not consider this to be the case.  In doing so he referred to the earlier paragraphs in his judgment in which he had found that the report writer had visited both residences and had met with “Aunty [S]”.  He went on to say:
I consider that the report writer did have sufficient opportunity to observe the child, [O], with both parties and their families in the parties’ respective home environments.  In the father’s case the Torres Strait will be the long-term home environment.  The report writer’s opinion, as stated in her reports, is that the child ought to live primarily with the father.  I particularly note that the second report by the report writer did specifically address certain issues, including the issue that she ought, that is the report writer, ought give more consideration to [O’s] Aboriginal heritage.  I consider that the report writer has taken into account in an appropriate way the importance of the child’s attachments to the respective families and the importance of the respective cultures of those families.
62.	The Federal Magistrate then set out an extract from the second report containing the report writer’s recommendations.  We repeat this extract below as it is of considerable significance.  The underlining was added by his Honour.  His Honour omitted paragraph 5.6 but we think it worth including since it refers to potential difficulties in O being able to remain in contact with an absent father/sister by telephone.
5.	SUMMARY and RECOMMENDATIONS 
5.1	 	There have not been significant developments in this matter in the preceding months.  Financial and employment restrictions have prevented the father from seeing his son and so [Ms Donnell] remains reluctant to support a change in residency for [O] based on the lack of demonstrated commitment on the father’s part to parenting [O].  The father has relocated for a period of time to [G].  This ought to minimise some of the disputes around contact.
5.2	 	My views around the abilities and commitment of each adult party to support and love this boy remain unchanged.  [The sister] is unquestionably devoted to [O] and, if [O] did not have a parent who was willing and able to care for him, I would have no hesitation in fully supporting her ability and capacity to provide wonderful parenting to her little brother.  [O] loves her and her husband [O’s brother-in-law] and he is both comfortable and relaxed in his world with them.  [The father] and his wife [J] are also committed to caring for [O].  My observations of their behaviour as parents toward their daughter [T] and [O] support my view that they too are competent and loving parents.  Each time I have seen [O] with his father, I have observed an increasing level of familiarity and connectedness.  I note, however, that [O], is not quite as relaxed with his father and step-mother as he is with his sister and her husband.  This is not at all surprising given the time he has spent with each of these families.
5.3	 	There is a sense that the issue of culture has detracted from other critical aspects of this matter.  It has been suggested that my previous report was biased against Aboriginal culture in favour of Torres Strait Culture.  Obviously, [O’s] cultural identity will be comprised of both cultural heritages and it would be absurd to suggest that one culture does or should be priorities [sic] above the other.  The issue is probably more around which family might more willingly expose [O] to the alternate culture.  The fact that [O] knew very little, if anything, of his parental cultural heritage until relatively recently suggests that this may not have been a high priority for [O’s] maternal family.  Nonetheless, the court can but hope that whoever [O] lives with, he will maintain a strong and appropriate cultural awareness of both Aboriginal and Torres Strait culture. 
5.4	 	The other issues that speak to the ‘best interests’ for this child are around his identity formation – in every sense.  It was pleasing to hear [the sister] and [O’s brother-in-law] acknowledge that [O] does have a right to have a relationship with his father and that it would be wrong to discourage or thwart a relationship between them.  Certainly, the fact that [O’s] other young siblings live with their respective fathers, suggests that this arrangement is accepted with the maternal family.  There is abundance [sic] evidence that speaks to the importance of the parent-child attachment, parent-child identification and parent-child belonging.  Strong and functional formation of the afore-mentioned concepts provide children with a stronger opportunity to create more functional adult lives and relationships. [Footnote: Prof Guy Diamond:  Attachment Based Family Therapy Training, Brisbane, January, 2009.]  Conversely, children that are denied (for whatever reason) strong and loving parent-child relationship are at significantly greater risk of poor outcomes (across a range of issues) in adulthood.  Although [O] has been afforded a level of protection from long-negative effects following his mother’s death, from his maternal extended family, it is critical that he has the greatest opportunity available to him to be nurtured, supported and parented.  As noted in my previous report, I believe that this will be achieved most fully via living with his father and continuing to enjoy the benefits of all the relationships he currently has with the maternal family.  I recommend that [O] live with his father and spend time with his siblings and extended maternal family during school holidays. 
5.5	 	It appears that the most contentious issue is likely to be how and when this change in living arrangement might occur.  Given that [O] is obviously more familiar with [the sister], it seems reasonable that the transition to his father’s family ought to occur in such a way that [O] has the opportunity to build a deeper relationship with his father prior to a full transition of residence occurs.  I expect that this could occur within the first half of 2009.  I believe that visits for weekends, public holidays (long weekends), school holidays and perhaps even a part day or so off school (to compensate for travel time), is likely to be afford [sic] [O] the opportunity to feel more comfortable with his father and develop a deeper bond with [J] [the father’s wife] and his [i.e. [O’s]]  sister.  If [O] has frequent contact with his father over the next say four months, I would expect that he could start Term 3 at [G].
5.6	The issue of telephone contact remains difficult – especially because [O] – like his father – is not a great telephone talker.  Whilst I encourage and even recommend telephone contact as an adjunct to visits, I would not wish to be prescriptive in this regard.  Neither would I want “telephone contact performance” to become a reference point or marker for “parental performance”.  
63.	Having set out this extract, his Honour said he noted in particular paragraph 5.4, in which the report writer “talks of the fact that there is an abundance of evidence that speaks to the importance of the parent/child attachment, parent/child identification and parent/child belonging.”  He said this would be “particularly underlined in the quotations which will be included in the reasons and the reference to Professor Guy Diamond”.  (This part of the extract was duly underlined when his Honour’s ex tempore reasons were published.)  
64.	His Honour then said he had noted the criticisms made of the report writer’s report but went on to say:
Those criticisms did not specifically address that particular piece of evidence included in the report writer’s report.  To my mind, that sentence does deserve to be highlighted.  The Court’s attention was drawn specifically to it by … counsel on behalf of the father.
It is clear that the sentence to which his Honour was referring in this passage was the one in paragraph 5.4, where the report writer referred to the abundance of evidence concerning the “importance of the parent-child attachment, parent-child identification and parent-child belonging”.  
65.	Although it clearly had other important ramifications for the outcome of the proceedings, it seems his Honour regarded the preceding discussion of paragraph 5 of the report as linked to the submission relating to the decision in Makita.  This appears to be so because immediately after the discussion concluded his Honour recorded that the Makita decision “does not, in this particular case, impact upon my findings that the report writer had a proper opportunity to observe [O] with both parties and their families”.
66.	His Honour went on:
59.	It seems to me to be the case that the Aboriginal heritage and the Torres Strait Islander heritage, whilst they are extremely important issues in this case, ought not be issues which totally subsume the case.  The Court must consider matters and issues which go beyond the cultural issues to which I have referred.  There really is no evidence before the court to rebut the expert evidence of the report writer of the importance of a parent/child attachment.  I accept the evidence of the report writer.  I accept her recommendations.
60.	It is important to note at this point that I also accept the following opinion noted by the report writer in evidence in Court today that in respect of her opinion she is keen for [O] to live with the person whom she believed can “nurture his strongest sense of self that he can have”.  I accept that evidence and I accept that the evidence is consistent with her recommendation as to where [O] should live primarily and it is consistent with paragraph 5.4 of her written report, in particular that sentence to which I just referred.
61.	The Court has had an opportunity to observe both the father and the [sister].  Having regard to the objects of Part VII of the Act (quoted earlier) which appear in s.60B and having regard to the evidence generally – even if the Court were to leave the report of the report writer to one side – for the reasons that I have stated herein (in particular I note paragraphs 1 – 48 inclusive and paragraph 62) I would exercise my discretion in favour of a conclusion that the child should live primarily with the father.  Having said that, I in no way resile from the findings I made earlier that the report writer’s opinions are both valid and ought be accepted by the Court.
67.	It is important to record that paragraphs 1 to 48 inclusive and paragraph 62 of the reasons, to which the Federal Magistrate referred in the paragraph just quoted, were all of the paragraphs in his reasons which did not relate to the report writer and her reports.  
68.	Paragraph 62 was the final paragraph in the reasons.  Here the Federal Magistrate recorded it was important to refer to the father’s decision to move to G, which he found was “essentially a child-focussed decision”.  He said the move would make it much easier for O and his transition from the home of the sister.   He said the fact the father was living in G would allow O to spend regular time with his family in Brisbane over the next two years and, in fact, he would be primarily living with his sister for the next six months.
Grounds of Appeal
69.	The amended Notice of Appeal contained the following grounds.
1.	Abandoned.
2.	In the circumstances of the Father’s limited involvement with the child since 2002 (a matter accepted by all parties at trial), His Honour failed to give reasons, or adequate reasons to support his findings that:
(a)	The child has an excellent relationship with his Father;
(b)	The child will get along well with his nuclear family;
(c)	The Father’s move to [G] was child focused;
(d)	That the Father was the party most able to nurture the child’s strongest sense of self.
3.	Further to the matters set out in (2) above, His Honour’s findings were contrary to the weight of the evidence.
4.	His Honour erred and his discretion miscarried by placing undue emphasis on the placements of the subject child’s siblings with their Fathers upon the death of their Mother without reference to those Fathers’ involvement with their children prior to the Mother’s death.
5.	In considering the relevant s60CC matters, His Honour erred and his discretion miscarried by placing emphasis on the Father’s parental intentions, as opposed to his actual conduct as a parent.
6.	His Honour erred and his discretion miscarried by
(a)	accepting and placing weight on the Family Report, and/or
(b)	by finding that Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 had no application to this matter and in doing so, His Honour failed to give reasons, or adequate reasons to support this finding.
7.	In the premises:
(a)	His Honour erred and his discretion miscarried by placing undue emphasis on the status of the Father as a parent.
(b)	His Honour failed to give reasons, or adequate reasons, to explain why he was prepared to accept the Appellant as a parent for the purposes of s60CC(3), but not for s60CC(2)(a)
(c)	His Honour erred in law in treating the Appellant as a parent for some s60CC purposes, but not others.
8.	When considering the s60CC factors, including s60CC(3)(h) and (6), His Honour erred in failing to inform himself of any anthropological evidence and/or “well recognised peer reviewed research” concerning the parties respective Aboriginal and Torres Strait Islander cultures.
70.	Although the amended Notice of Appeal proposed that the Full Court re‑exercise the discretion of the Federal Magistrate, all counsel agreed that if the appeal was allowed there would be no alternative other than for the matter to be remitted for rehearing.  
Ground 7 – inconsistent application of the legislation 
71.	We will address Ground 7 first.  We do so not only because all counsel addressed it first in their submissions, but also because in dealing with this ground it will be convenient to set out the statutory provisions which provide the legal context in which the decision was made.    
72.	Although framed in three parts, the ground raises two issues.  The first asserts error by the Federal Magistrate in placing undue emphasis on the status of the father as a parent.  The second complains of the contradiction in his Honour having been prepared to treat O’s sister as a parent for the purposes of the “additional considerations” in s 60CC(3) but failing to treat her as such when considering the one relevant “primary consideration”.  
73.	The ground raises vexed issues concerning key provisions in Part VII of the Act.  It highlights some of the difficulties associated with a law which seeks to guide the exercise of the discretion required to ensure that the outcome of proceedings is the one most likely to promote the child’s best interests.  The difficulties are particularly acute when the child is of Aboriginal or Torres Strait Islander origin.  
74.	We will postpone until later in these reasons our discussion of the tension that arises when interpreting the legislation as it relates to Aboriginal and Torres Strait Islander children.  This will also involve deferment of consideration of the first limb of Ground 7.  This is more appropriately discussed with the complaint concerning the family reports, upon which his Honour relied heavily in placing weight on the father’s status as a parent.  
75.	At this stage we will focus our attention on the second limb of Ground 7, which raises an issue of general application in disputes involving a “parent” and a non-parent.  In tracing the provisions relevant to this discrete topic we will nevertheless flag the provisions in Part VII that relate to Aboriginal and Torres Strait Islander children.  
76.	The distinction between parent and non-parent first appears in the opening provisions of Part VII, namely ss 60B(1) and (2), which set out the objects of the legislation and the principles underlying those objects.  These provide:
 (1) 	The objects of this Part are to ensure that the best interests of children are met by:
(a) 	ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) 	protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) 	ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) 	ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) 	The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) 	children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) 	children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) 	parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) 	parents should agree about the future parenting of their children; and
(e) 	children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
77.	These provisions are followed by s 60B(3), which seeks to amplify the meaning of s 60B(2)(e) in cases involving Aboriginal or Torres Strait Islander children.  To this point in the legislation, nothing is said to suggest that the objects and underlying principles, insofar as they create a distinction between parents and non-parents, should be applied differently when dealing with Aboriginal or Torres Strait Islander children.  
78.	Subsection 60B(3) provides:
For the purposes of subparagraph (2)(e), an Aboriginal child’s or 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.
79.	The next important, indeed overarching, provision, is s 60CA which provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
80.	It will be noted that there is no reference in this provision to any distinction between parents and non-parents.  The child’s best interests remain the paramount consideration regardless of the biological (or other) connection of the child to the parties to the proceedings.  
81.	It will also be noted that s 60CA introduces the concept of a “parenting order”.  That expression is defined by s 64B which relevantly provides:
(1) 	A parenting order is:
(a) 	an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b) 	an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
(2) 	A parenting order may deal with one or more of the following:
(a) 	the person or persons with whom a child is to live;
(b) 	the time a child is to spend with another person or other persons;
(c) 	the allocation of parental responsibility for a child;
(d) 	if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) 	the communication a child is to have with another person or other persons;
…
(i) 	any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
82.	It will be seen that s 64B(2) makes clear that parenting orders, including orders for “parental responsibility”, may be made in favour of non-parents as well as parents.  The point is reinforced by s 64C, which provides that “a parenting order in relation to a child may be made in favour of a parent of the child or some other person”.  Section 65C goes on to provide that a parenting order may be applied for by a parent, a grandparent, the child him/herself, and “any other person concerned with the care, welfare or development of the child”.
83.	The expression “parental responsibility” is defined by s 61B to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.   Hence an order can be made for a non-parent to have parental responsibility or to share that responsibility with another person who may or may not be a parent.  However, s 61C makes clear that in the absence of an order of the court or parenting plan, only the “parents” of a child have “parental responsibility”.  
84.	The allocation of parental responsibility can have important consequences for the way in which a court deals with an application for parenting orders.  This is so because s 65DAA provides that “If a parenting order provides … that a child’s parents are to have equal shared parental responsibility” then the court must “consider” whether the child spending equal time with each of the parents would be in the child’s best interests and reasonably practicable and, if it is, then the court must “consider” making an order to provide for the child to spend equal time with each of the parents.  
85.	Section 65DAA goes on to provide that if, in such circumstances, the court does not make an order for the child to spend equal time with each of the parents, the court must “consider” whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable and, if it is, the court must “consider” making an order to provide for the child to spend substantial and significant time with each of the parents.
86.	The provisions of s 65DAA do not have any application in circumstances where one parent is given sole parental responsibility.  More importantly for present purposes, it is clear that the section can have no application in circumstances where an order is made for a parent to share parental responsibility with a person who is not a parent.  
87.	It will be seen from this brief review of the relevant provisions that the legislation makes important distinctions between parents and non-parents.  Ultimately, however, orders can be made in favour of either parents or non-parents and, in determining what those orders should be, the best interests of the child remain the paramount consideration.  
88.	This brings us to s 60CC, which contains the factors the court must take into account in determining what orders will be in the child’s best interests.  It is the Federal Magistrate’s treatment of these factors which is the subject of attack in the second limb of Ground 7.  However, before moving to discuss those factors we should also flag one other provision of the legislation which we consider is of considerable importance to this appeal.
89.	This is s 61F, which is in the following terms:  
Section 61F Application to Aboriginal or Torres Strait Islander children
In:
(a) 	applying this Part [i.e. Part VII] to the circumstances of an Aboriginal or Torres Strait Islander child; or
(b) 	identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;
the court must have regard to any kinship obligations, and child-rearing practices, of the child’s Aboriginal or Torres Strait Islander culture.
90.	Although we have said we regard s 61F as important, no mention was made of it during the hearing below or in the Federal Magistrate’s reasons.  We do note, however, that the sister’s solicitor clearly had it in mind when drafting paragraph 39 of the sister’s affidavit, and she also made specific reference to it in her Case Outline Summary (Appeal Book 182).  
91.	We will later explain why we consider this provision has significance in the present appeal.  It is sufficient to say here that in the absence of any argument we will proceed on the assumption that s 61F does not have relevance to our consideration of the second limb of Ground 7 – and more specifically, does not have any impact on the definition of “parent”.  
92.	The only attempt made in the legislation to assist in interpreting the meaning of the word “parent” is contained in s 4(1), which says that “parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child”.  We therefore proceed on the basis that “parent” means a biological or adoptive parent and does not include a person who stands in loco parentis to a child:  Mulvany & Lane (2009) FLC 93-404 per May and Thackray JJ at [32].  See also Hort & Verran [2009] FamCAFC 214, per Coleman, O’Ryan and Strickland JJ at [84].   We exclude from consideration for present purposes the difficult issues associated with children born as a result of artificial conception procedures, as to which see the decision of the Full Court in Aldridge & Keaton [2009] FamCAFC 229 at [16] to [22].  
93.	Importantly, for present purposes, we accept that the word “parent”, when used in relation to a child, does not include a person who may be treated as a parent of that child by the customs of people of Aboriginal or Torres Strait Islander background.  Whether this assumption can withstand critical analysis is a matter best left to an occasion when the Court has the benefit of argument on the possible application of s 61F.  
94.	We turn now to consider s 60CC, which on its face maintains clear distinctions between a “parent” and a non-parent.  To assist understanding of our discussion, we will set out the section in full, including the two paragraphs containing the “primary” and “additional” considerations the court must take into account.  We have bolded some parts of the text to draw attention to those factors which specifically refer to “parents” and those which may have application to a party to the proceedings who is not a “parent”.
	Section 60CC How a court determines what is in a child’s best interests 
(1) 	Subject to [an irrelevant matter], in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations 
(2)	The primary considerations are:
	(a)	the benefit to the child of having a meaningful relationship with both of the child’s parents; and
	(b)	the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
	(3)	Additional considerations are:
	(a)	any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
	(b)	the nature of the relationship of the child with:
	(i)	each of the child’s parents; and
	(ii)	other persons (including any grandparent or other relative of the child);
	(c)	the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
	(d)	the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
	(i)	either of his or her parents; or
	(ii)	any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
	(e)	the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
	(f)	the capacity of:
	(i)	each of the child’s parents; and
	(ii)	any other person (including any grandparent or other relative of the child);
		to provide for the needs of the child, including emotional and intellectual needs;
	(g)	the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
	(h)	if the child is an Aboriginal child or a Torres Strait Islander child:
	(i)	the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
	(ii)	the likely impact any proposed parenting order under this Part will have on that right;
	(i)	the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
	(j)	any family violence involving the child or a member of the child’s family;
	(k)	any family violence order that applies to the child or a member of the child’s family, if:
	(i)	the order is a final order; or
	(ii)	the making of the order was contested by a person;
	(l)	whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
	(m)	any other fact or circumstance that the court thinks is relevant.
(4)	Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
	(a)	has taken, or failed to take, the opportunity:
	(i)	to participate in making decisions about major long‑term issues in relation to the child; and
	(ii)	to spend time with the child; and
	(iii)	to communicate with the child; and
	(b)	has facilitated, or failed to facilitate, the other parent:
	(i)	participating in making decisions about major long‑term issues in relation to the child; and
	(ii)	spending time with the child; and
	(iii)	communicating with the child; and
	(c)	has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)	If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
(5)	If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(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.

95.	The predecessor to s 60CC was s 68F(2).  This now repealed subsection contained the list of matters the court was required to take into account in dealing with disputes concerning children.  Although that list of factors contained some that referred only to parents, this did not seem to give rise to any particular difficulty.  This was to change following the amendments made to the legislation in 2006.  The amendments to Part VII placed a sharper focus on parents in the objects and principles underpinning them.  They also provided what might appear to be a hierarchy in the importance to be attached to some of the factors.  In particular, the first of the “primary considerations” places a particular emphasis on the benefit to a child of having a meaningful relationship with both parents.
96.	There have now been a number of cases which have come before the Full Court involving a parent and a non-parent in which it has been asserted that the trial Judge or Magistrate erred because of an inconsistent approach taken in addressing the relevant factors.  This has especially been so where although one of the parties is not a “parent” within the meaning of the Act, they have been regarded within the family as if they were a “parent”.  The difficulty has also arisen in other cases where one of the parties has been the primary carer to the child and hence largely stood in the place of a “parent”.  For an example of each of these types of cases see Mulvany & Lane (supra) and Hort & Verran (supra).  
97.	In both Mulvany & Lane and Hort & Verran an issue was raised on appeal arising out of the approach taken at first instance to the application of s 60CC(3)(c).  It will be noted that this paragraph makes no reference to the willingness and ability of a non-parent party to facilitate, and encourage, a close and continuing relationship between the child and one or both of the child’s parents.  Yet, in a case involving a non-parent (who may have played and seeks to play a significant role in a child’s life), it would seem essential to address that person’s willingness and ability to facilitate the relationship between the child and the child’s parent(s).  
98.	Anxious to address this factor, some judicial officers have treated the non-parent as a parent, or as if a parent, when addressing s 60CC(3)(c).  In the present case, the Federal Magistrate expressly noted that this factor refers only to parents but said he proposed to consider the provision nevertheless.  
99.	While we accept this approach has the benefit of grouping findings in a way that provides an easy flow to the judgment, it has become apparent that it can also give rise to suggestions of error.  The appearance of error can be avoided by a simple means when addressing factors such as ss 60CC(3)(c) and (e), which are referable only to a “parent”.  To the extent that the subject matter is also relevant to a non-parent, discussion can be delayed until the point in the reasons where the judicial officer is addressing s 60CC(3)(m), which refers to “any other fact or circumstance that the court thinks is relevant”.
100.	The suggested error in the present case, and in the earlier cases, arises out of the fact that having treated the non-parent as a parent, or as if a parent, for the purposes of discussion of s 60CC(3)(c), the judicial officer has not been willing to regard the non-parent as a person to whom s 60CC(2)(a) applies.  It will be recalled that this is the paragraph which contains the first of the primary considerations, namely “the benefit to the child of having a meaningful relationship with both of the child’s parents”.
101.	In our view, there can be no doubt that s 60CC(2)(a) has no application to a person who is not a “parent”.  This is so because the paragraph refers only to “parents”, and there is no extended definition of that word – save for the one incorporating adoptive parents (and query the potential application of s 60H).  However, that fact does not give rise to any difficulty in ensuring all relevant matters are taken into account.  In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent.  As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.  
102.	We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.  For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75].  
103.	On our analysis, the various factors contained in ss 60CC(2) and (3) may be seen as a series of signposts the legislature has determined are potentially  important for the court to take into account in exercising its very wide discretion.  Some of the signposts will lead nowhere.  In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another.  Sensibly, the legislature has recognised that it cannot provide an exhaustive set of signposts as the destination is uncertain and the routes by which it may be reached are as infinite as the factual circumstances that present themselves in courtrooms every day.  
104.	This is why the legislature has included a “catch-all” provision, s 60CC(3)(m), which ensures the court can take into account every factor that may assist in reaching the right destination.  It is important to keep in mind, however, that s 60CC(3)(m) is contained within the set of factors deemed to be “additional considerations”.  Therefore, any matter not captured by s 60CC(2) cannot be a “primary consideration”, regardless of how important it may be in determining the outcome.  
105.	For the reasons above, we consider the Federal Magistrate would have erred if he had treated O’s sister as a “parent” for the purposes of s 60CC(2)(a), as that provision has no application to someone who is not a “parent”.  
106.	Although the Federal Magistrate did discuss the willingness and ability of O’s father to facilitate and encourage a close and continuing relationship between O and his sister (and vice versa) when dealing with s 60CC(3)(c), he did so having expressly acknowledged that the paragraph applies only to parents.  It would have made no difference if his Honour had discussed this clearly relevant factor when addressing s 60CC(3)(m).
107.	We accept that when discussing s 60CC(3)(e) the Federal Magistrate did not expressly acknowledge that it too applies only to parents; however, nothing turns on this.  His Honour’s treatment of that issue, which was clearly relevant, has not been the subject of any complaint.  Furthermore, his treatment of that factor needs to be read in the context that his Honour was giving his reasons ex tempore and had already demonstrated that he was alive to the issue that some of the “additional considerations” do not apply to non-parents.  
108.	For the sake of completeness, we observe finally that in her closing address at trial, counsel for the sister accepted that the Federal Magistrate could not treat O’s sister as a “parent” for the purposes of s 60CC(2)(a), but she did invite his Honour to treat her as a parent for the purposes of s 60CC(3)(c)  (Transcript, page 158 and 159).
109.	For these reasons we do not consider there is any merit in the second limb of Ground 7.  
110.	Before moving from this ground, we should record that some of the remarks we have made concerning the application of s 60CC(2)(a) may seem at odds with statements made by May and Thackray JJ in their joint judgment in Mulvany & Lane (supra) and remarks made by Finn J in the same case.  
111.	May and Thackray JJ said:
75.	… Whilst we accept the learned Federal Magistrate was right to conclude the father was not a “parent” within the meaning of the Act, we consider he erred in the way he allowed that conclusion to affect the process of reasoning by which he reached his decision.
…
78.	In our view, his Honour was quite right to consider and make findings in relation to all of the relevant “additional considerations” in s 60CC(3), even though he acknowledged some had no application to the father because they relate only to a “parent”.  However, for the sake of consistency it seems to us his Honour should have adopted the same approach when discussing s 60CC(2)(a).  What occurred instead is that the father was treated as a “parent” for some purposes but not others.
112.	In the present proceedings, counsel for O’s sister relied upon paragraph 78 of Mulvany & Lane in support of her proposition that the Federal Magistrate, having treated O’s sister as a parent for the purpose of s 60CC(3)(c), erred in refusing to regard her as such for the purpose of s 60CC(2)(a).  However, we do not regard May and Thackray JJ as saying that a non-parent must be treated as a “parent” for any of the provisions in s 60CC.  They have clearly said the opposite in relation to the primary considerations in the portion of paragraph 75 quoted above.  
113.	The remarks made by May and Thackray JJ in Mulvany & Lane need to be considered in the particular factual context of that case.  The party referred to as “the father” had always understood he was the biological father of the child.  The child also understood that he was his biological father.  The fact that “the father” was not a biological parent only came to light following testing in the period prior to the trial.  The whereabouts of the biological father were unknown and the mother intended that “the father” would have an ongoing relationship with the child.  In these circumstances the maintenance of the relationship between the child and “the father” was clearly a matter of considerable importance.  
114.	We understand May and Thackray JJ to have said no more than that in these factual circumstances it would have been appropriate for the Federal Magistrate to have discussed the importance of the child having a meaningful relationship with “the father”.  This does not mean, however, that the benefit to the child of maintaining a relationship with “the father” in that case could be treated as being a “primary consideration”.  
115.	Our interpretation of their Honours’ decision is supported by what they said in paragraph 82 (emphasis added):
82.	Such discussion, however, is ultimately unhelpful.  It diverts attention away from the central enquiry, which is to determine the outcome that will be best for the child.  Instead, it focuses attention on semantic issues about whether relevant matters should be discussed by reference to one s 60CC factor instead of another.  In our view, provided his Honour gave due weight to all relevant factors, it would matter not whether he considered the child’s very important relationship with the father by reference to s 60CC(2)(a) or by reference to one of the additional considerations.
116.	Whilst we are in general agreement with what May and Thackray JJ said in paragraph 82 of their judgment, we would add that if the maintenance of a relationship between the child and a non-parent is discussed by reference to s 60CC(2)(a) it should be made clear that the factor is not being treated as if it were a “primary consideration”.  In fact, given the number of appeals coming before the Court related to this topic, we consider the safer course may be to delay discussion of that issue until the “additional considerations” are being addressed.  
117.	In dealing with this same issue, Finn J said in Mulvany & Lane:
5.	I am prepared to accept (at least as presently advised) that his Honour was correct in concluding that the father was not a “parent” as that term is used in Part VII of the Act.
6.	Having reached that conclusion, his Honour was not prepared to consider or treat the father as “a parent” for the purposes of s 60CC(2) (primary considerations in determining the child’s best interests) or of s 61DA (presumption of equal shared parental responsibility).  Yet he was prepared to consider or treat the father as a parent for the purposes of s 60CC(3) (additional considerations in determining the child’s best interests), saying in this regard:
Because of the nature of the relationship between the [father] and the child I consider it appropriate in the special circumstances of this case to consider the relevant subsections within s.60CC(3).
7.	Nowhere does his Honour explain why he adopted this apparently inconsistent approach to the father’s position under the various provisions of the legislation which he applied in determining this case.  In my view this is a significant flaw in his Honour’s reasoning.
…
10.	However, this argument overlooks what in my view is another significant flaw in his Honour’s reasoning, and that is, his approach to, and application of, s 60CC(2)(a).  That paragraph provides that a primary consideration in determining what is in a child’s best interests is “the benefit to the child of having a meaningful relationship with both parents”.
11.	His Honour determined (in paragraphs 20 and 21 of his reasons) that as the mother was the only parent “who is a party to the proceedings”, it would follow that the only primary consideration relevant in this case is the benefit of the child having a meaningful relationship with the mother.  His Honour then went on to determine (in paragraphs 31-33 of his reasons) that the mother could only properly discharge her obligations as a parent if she was living in a country where she was happy and well settled, and that this could only be in Hong Kong.  Therefore for the child to have a meaningful relationship with the mother, he would have to live with her in Hong Kong.
12.	In my opinion, it was not open to his Honour to interpret s 60CC(2)(a) in the way in which he did, that is, in effect to hold that where a child only has one parent participating in the parenting proceedings, it will be a primary consideration in determining the child’s best interests, that the child have a meaningful relationship with that parent.  The legislation does not say this.  Indeed it could well be asked why, if his Honour was prepared to place an interpretation on s 60CC(2)(a) other than an interpretation clear on its plain words, did he not interpret the expression “parents” to include the father in this case?
…
15.	It is indeed unfortunate that given the now very detailed provisions of Part VII and the acknowledgement in that Part of the important roles that persons who are not natural parents of a child can have in a child’s life (see, for example, s 60B(2)(b)), that the legislation does not give some clearer indication of the weight to be attached to the child’s relationship with a person other than his or her parent, compared with the child’s relationship with the natural parent in the determination of proceedings between a parent and a person other than a parent.  
16.	As the legislation currently stands, and assuming that it is correct that “parent” means only a natural or adoptive parent, it would seem that in a case such as this, the court can only reach its determination in parenting proceedings on an application of s 60CC(2)(b) (protection from harm) and of the additional matters in s 60CC(3) so far as they expressly or impliedly refer to a person other than a parent.
118.	In view of what was said in paragraphs 15 and 16 of Finn J’s reasons, we do not necessarily think her Honour is saying that a non-parent, if treated as a parent for the purposes of the additional considerations, ought also be treated as a parent for the purposes of the primary consideration in s 60CC(2)(a), though the content of paragraph 6 and 7 of her reasons may lead to that conclusion.  To the extent that Finn J may have come to that conclusion, we respectfully disagree.
119.	It does occur to us, however, that what Finn J may have been saying in paragraph 12 is that, as a matter of statutory construction, s 60CC(2)(a) can never have application when one parent has died because in such circumstances it is not possible for the child to have “a meaningful relationship with both of the child’s parents”.  Support for the suggestion that this is the way her Honour may have construed the provision can be found in what she said in paragraph 16.  
120.	This was not a construction urged on us by any counsel.  We do note, however, that another experienced judge has taken a similar approach to that adopted by Finn J by suggesting that in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents “fall away”.  
121.	In Potts & Bims [2007] FamCA 394 at [8] Moore J discussed the statutory provisions in the context of a case involving both of the parents and the maternal grandparents.  Her Honour concluded that to the extent the matters in ss 60CC(2) and (3) might be relevant, they could only be considered by reference to those factors that do not refer to parents, and in particular the catch-all provision of s 60CC(3)(m).  We repeat below what Moore J said on this point:
The provisions about children’s arrangements are to be found in Part VII of the Family Law Act 1975.  The concept of best interests of the child is at the heart of it and that is designated to be the paramount consideration in making any parenting order.  Some Part VII provisions refer to ‘parent/s’ which, given the word’s ordinary meaning and in the absence of an expanded definition or some other descriptor such as ‘party’, means a number of sections do not apply when assessing ‘best interests’ in proceedings that are not between parents but between a parent and a non-parent [eg. relative].  Section 60B(1) and (2) set out the objects of Part VII and the principles underlying them.  However, a number are expressed to apply to ‘parent/s’ and so are excluded in proceedings of the latter kind.  For example, paragraphs 60B(1)(a), (c), and (d) fall away and what remains is paragraph (b); namely, the object of protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  Similarly, paragraphs 60B(2) (a), (c) and (d) fall away as underlying principles and there remains paragraph (b); namely, [‘except when it would be contrary to a child’s best interests’] ‘children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)’.  With objects and underlying principles as a guide, the determination of what is in a child’s best interests requires the court to consider both ‘primary considerations’ and ‘additional considerations’ set out in s 60CC.  But again the use by the legislature of the word ‘parent/s’ in a number of those considerations operates to exclude those factors in proceedings between a parent and non-parent.  Falling within that group is the primary consideration in paragraph 60CC(2)(a) and the additional considerations at paragraph (c), (e), and (i).  However, that does not mean those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f) [capacity to provide for needs] or, if nowhere else, under paragraph (m) [any other fact or circumstance relevant].  On that same analysis, the presumption of equal shared parental responsibility imposed by s61DA and, if it applies and the order is to provide for equal shared parental responsibility, consideration of the child/ren spending equal time or substantial and significant time, as set out more particularly in s65DAA, are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent.  Nonetheless, the particular applications may make it necessary to address those outcomes in any event.  
122.	Another Full Court has recently discussed the issues that arise in cases in which the parties are a parent and a non-parent.  In Aldridge & Keaton (supra) the Full Court quoted the passage we have recited from Potts & Bims and said (at [112]) that it “accurately encapsulates the relevant legal principles to be applied when determining a parenting application which involves a non-parent/s”.    
Ground 2 – adequacy of reasons for factual findings
123.	By this ground it was asserted that in light of the father’s limited involvement with O, his Honour failed to give reasons or adequate reasons to support four separate findings.  
124.	In dealing with each of these complaints, we propose keeping in mind what was said by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280:
If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons… But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.
125.	We will also keep in mind what the Full Court of this Court said in A v J (1995) FLC 92-619 at 82,232:
It is important to guard against too zealous an application of the requirement to give reasons, particularly in circumstances where it is argued that inadequacy in the reasons lies in the failure to make findings of fact leading to a finding of a material or an ultimate fact…
Ground 2(a) – O’s relationship with his father 
126.	This ground challenges the finding made at paragraph 22 of his Honour’s reasons where he said, in dealing with s 60CC(3)(b):
I find that the child has an excellent relationship with his father.  I find that the child has a close and loving relationship with his father.  
127.	Having made these succinct findings, his Honour passed immediately (and equally succinctly) to deal with the relationship between O and his sister and other relatives on the maternal side.
128.	In addressing this ground, counsel for the sister stressed how infrequently O’s father had spent time with O since 2002, when O was seven months old.  She contrasted his Honour’s findings about the “excellent” and “close and loving” relationship between father and son with the remarks of the report writer that the father’s involvement with O had been “incredibly limited” and that their relationship was “being consolidated”.  
129.	It was further submitted that the Federal Magistrate’s reasons were “inadequate with respect to the father’s absence from the child’s life” and that the finding that the father’s time with O had been “incredibly limited” had not itself been the subject of consideration or reasons in dealing with ss 60CC(3)(b), (d), (f), (i) or (4)(a).  Finally, it was submitted that in paragraph 22 his Honour had simply made findings and that “it is difficult to identify the reasons, or adequate reasons, that gave rise to that finding”.
130.	In response, counsel for the father submitted that the Federal Magistrate had the benefit of observing both parties during the trial and had considered the evidence-in-chief and the family reports.  It was submitted it was open to his Honour to find that O had “an excellent relationship” with his father in light of:
•	the testimony of O’s sister that the father and O had a “good relationship” and her acceptance that O loved the father;
•	the acceptance by O’s sister that the father’s limited involvement with O had primarily been due to the distance between their homes;
•	the fact that O had enjoyed his time with the father during his visits to the Torres Strait;
•	his Honour’s finding that both the father and sister were “essentially gentle people with [O’s] best interests at heart”;
•	the evidence of the report writer, and his Honour’s acceptance of her findings, that there was a positive relationship between father and child.
131.	Counsel for the Independent Children’s Lawyer supported the submissions of counsel for the father.  She submitted that “it doesn’t not [sic] necessarily follow that because a parent has had limited involvement in a Childs [sic] life that their relationship must be less than excellent”.  She also drew attention to O’s sister’s acceptance of the proposition that if O was to spend more time with his father, “their relationship will be more solid”. 
132.	We accept that nowhere in the Federal Magistrate’s reasons is there any explanation for his finding that O and the father enjoyed an “excellent relationship”.  However, it is not necessary for a judicial officer to provide reasons or explanations for every finding.  As well as reminding ourselves of what was said in A v J (supra), we should also bear in mind what Mahoney JA said in Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3  NSWLR 378 at 385‑386:
There is, in my opinion, an established course of decision in this State that, in certain circumstances, it is the duty of the judge to state his reasons for deciding as he does and that his failure to do so may constitute an error of law  … However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument ... In determining whether, in a particular case, there is a duty to give reasons and the extent of it, regard should, in my opinion, be had to the function to be served by the giving of reasons. 
133.	The function to be served by the Federal Magistrate in giving his reasons was to identify why he considered it was in O’s best interests to live primarily with his father.  In circumstances where O’s sister had conceded that father and child had a “good relationship”, and where the report writer had spoken positively of the nature of the relationship, we do not consider it was essential for his Honour, particularly in an ex tempore judgment, to explain why he used the word “excellent” when describing the relationship.  
134.	In concluding there is no merit in this complaint, we have not overlooked that the sister’s concession in her oral evidence about the existence of a “good relationship” was followed immediately by her comment, “but it could be a lot stronger” (Transcript, page 16). 
Ground 2(b) – O’s relationship with his “nuclear family”
135.	This complaint also arises from paragraph 22 of the reasons and concerns the Federal Magistrate’s finding that “it is highly likely to be the case that the child will get along well with the father’s nuclear family” if he lived with his father. 
136.	In support of this ground, counsel for O’s sister stressed that at the time of trial O had seen the father’s wife on only one occasion – i.e. during his holiday in the Torres Strait in January 2009.  It was further noted there was no evidence to suggest that O had met the father’s mother-in-law.  In these circumstances it was submitted that the Federal Magistrate had such limited evidence about the father’s nuclear family that his finding about O getting on well with them could only be founded “on hope and speculation”.
137.	In response, counsel for the father noted that:
•	no objection had been taken at trial to the affidavit of the father’s wife (in which she had said that having spent time with O over the recent Christmas holidays, and having spoken with him once on the telephone, “We have a friendly relationship and I felt that [O] became more comfortable with me the longer we spent together at Christmas”);
•	his Honour accepted the evidence of the report writer who had observed O with the father’s wife; 
•	O’s sister had raised no issue regarding the nature of O’s relationship with his father’s wife (nor his relationship with the child of the father and his wife).
138.	Counsel for the Independent Children’s Lawyer supported the submissions of counsel for the father.  She referred in particular to what she said were the unchallenged observations of the report writer in her first report concerning the relationship between O and his father’s wife. 
139.	Before discussing these submissions, we should note that his Honour did not identify who he had in mind when referring to the father’s “nuclear family”.  However, given the accepted definition of “nuclear family”, we assume his Honour contemplated only the father’s wife and their child, and not his mother-in-law, even though she was living in the same home.    
140.	We accept there was little evidence on which the Federal Magistrate could have based his finding about O’s nuclear family.  With respect to the submission made by counsel for the Independent Children’s Lawyer, the first family report said nothing concerning O’s relationship with the father’s wife, as O had not met her by that stage.  He met her for the first time during the period in which the report writer was preparing the second report.  The only relevant reference in that report was where she said “The relationship between [the father’s wife] and [O] is polite and pleasant.  Given that they had only just met, that is what would be expected”.  The report writer also recorded that when she met with O again after he came back from his holiday in the Torres Strait he told her he thought the father’s wife was “nice”, although he could not remember the name of her baby.
141.	Although there was not much evidence, we consider there was sufficient to allow the Federal Magistrate to make the finding he did about the likelihood of O settling into the father’s “nuclear family”.  It is important to record that there was no suggestion at trial that O would not get along well with the father’s new family.  Although the sister had expressed concerns to the report writer about how the father’s “family” would treat O, it is apparent she was not referring to his “nuclear family”, since she based her concerns on how the father’s family had allegedly not been welcoming of her mother, who had died before the father commenced his relationship with his wife (Appeal Book 160).   
142.	There is accordingly no merit in this ground.  
Ground 2(c) – the reasons for the father’s move to G
143.	This ground relates to the final paragraph of his Honour’s reasons in which he said:
It is important finally for me to refer to the father’s decision to move to [G].  This was, I find, essentially a child-focussed decision.  It will be much easier for [O] and his transition from living primarily with his older sister to living with his father now that the father has moved to [G].  
144.	In support of this ground counsel for the sister noted that the father had lived in G for some months prior to the death of O’s mother and yet had only visited O once in that time.  It was also submitted there was no evidence to suggest the father had been “thwarted” in any desire to see O in this period.  It was further submitted that when the father did move back to G in February 2009 he did not tell O’s sister of his plan or the actual move.  Reference was also made to a passage in cross‑examination where the father gave his reasons for moving to G instead of taking up residence closer to O.
145.	In response, counsel for the father submitted that the father’s evidence was that he had moved to G to be closer to O and that the reason for him taking up residence in G was because he and his partner had family support in the area and that he did not like living in a big city.  It was submitted that had it not been for O living in Brisbane, the father would not have relocated to G and hence it was open to his Honour to find that it was a child-focussed decision.
146.	Counsel for the Independent Children’s Lawyer submitted that the father’s move to G was not a central issue.  It was also submitted that O’s sister had admitted that the father’s move to G would make it easier for O to maintain attachments and communication with his siblings if he were to live with his father, and that conversely the “tyranny of distance” would be less if he were living with his sister and strengthening his bond with his father in G.
147.	We accept that the finding that the father’s move to G was “child-focussed” was open to the Federal Magistrate in light, inter alia, of the evidence the father had given that “we have made the decision to temporarily live in [G] so as we can finalise these proceedings and try and have more involvement in [O’s] day to day life” (Appeal Book 132 – see also paragraphs 216 to 218 of the father’s affidavit and his discussion with the report writer recorded at paragraph 2.2 of the second report).  
148.	As this was not a major issue we do not consider there was any necessity for his Honour to refer to any specific evidence or give any reasons for his finding.
Ground 2(d) – the parties’ ability to nurture O’s “sense of self”
149.	This ground arises out of paragraph 60 of the reasons in which the Federal Magistrate said it was important to note that he accepted the opinion of the report writer that O should “live with the person whom she believed can ‘nurture his strongest sense of self that he can have’”.  His Honour did not say why he accepted this opinion, other than to say it was consistent with the report writer’s recommendation that O should live primarily with the father and that it was also consistent with paragraph 5.4 of the second report.  
150.	The finding which is the subject of this complaint arose from the oral evidence given by the report writer.  It is important to put that evidence in context by also reciting the question asked of the report writer by counsel for O’s sister  (Transcript, page 126):    
[Question:]  Both of your reports, it would be fair to say, you recommend in both of them that [O] live with [the father].  Your priority really has been to find [O] with a parent hasn’t it, you’ve been keen to get [O] back with a parent?  [Answer:]  I’ve been keen for him to live with the person who I believe can nurture his - the strongest sense of self, that he can have.
151.	His Honour’s acceptance of the opinion that it was the father who could nurture O’s “strongest sense of self” was expressly tied to his acceptance of paragraph 5.4 of the second report, in which the report writer said, “there is abundance [sic] evidence that speaks to the importance of the parent-child attachment, parent-child identification and parent-child belonging”.  Given that his Honour’s acceptance of the opinion of the report writer about the nurturing of O’s “sense of self” was intertwined with his acceptance of what we regard as the pivotal piece of evidence upon which his Honour relied in coming to his decision, we propose to delay further discussion of this ground until we come to address the ground attacking his Honour’s acceptance of the reports.     
Ground 3 – findings of fact
152.	By this ground it is asserted that the findings of fact sought to be impugned by Ground 2 were “contrary to the weight of the evidence”.
153.	The submissions supporting this ground were the same as those relied upon in support of Ground 2.  We have already concluded that his Honour gave adequate reasons for the first three findings and that there was sufficient evidence to support each of them.  To that extent Ground 3 must fail, subject to what we determine when we complete our consideration of the fourth complaint in Ground 2.    
Ground 5 – focus on intentions rather than past conduct
154.	By this ground it was asserted his Honour had erred and his discretion miscarried by emphasising the “parental intentions” of the father as opposed to his actual conduct.
155.	We set out in full the written submissions of the sister on this point:
20.	On the evidence before the Court, the [father] has spent little time with the child since 2002.  For example, despite moving to [G] in 2007, he saw the child only once, with no evidence that he was thwarted in further endeavours.  He sent two cards to the child in 5 years, he was going to file proceedings; he is going to travel regularly between [Torres Strait] and [G] over the two year period following the trial, but may or may not be able to rely on his sisters (who were not witnesses) for financial support (Appeal Book 324).  He was going to see the child in September 2008 but did not.  He was going to see the child in November 2008, but did not.  At trial, it was revealed that he was going to get a job not in [G], but in Bundaberg or Mundubbera.  In the first Family Report, he was urged to take some responsibility for the [sister’s] lack of knowledge regarding his circumstances, but he did not do so.
21.	On the other hand, the [sister] had done the actual parenting of the child, had him to grief counselling and seen his school grade improving under her guidance.  In the [father’s] words, “she’s done a good job…” (Appeal Book 326 L11)
22.	The reasons are however inadequate in assessing actual parenting as against “going to” parenting; if the past is the best predictor of the future, the latter, ‘going to parent’ position is in the context of a poor track record.  Yet, despite these factual bases, the Reasons do not reveal a weighing up of these important factual matrices when considering capacity to parent, parental responsibility, and effect of change.
156.	In response, counsel for the father submitted that his Honour had not placed undue emphasis on the father’s intentions but rather had “considered the conduct of both parties … in light of the dynamics of the family unit”.  It was submitted that his Honour had made findings in relation to the father’s previous involvement with O and had accepted his evidence that he had made attempts to maintain a relationship with him prior to the death of the mother.  It was further submitted that the parties had agreed at trial concerning arrangements that would allow O to gradually increase his time with the father so as to build their relationship, and that it was the sister’s case at trial that even if O was to remain with her, he should spend at least every second weekend with the father and extended periods of holiday time.
157.	Counsel for the Independent Children’s Lawyer joined in the father’s submissions and submitted that the evidence of the sister herself was sufficient for the Court to be satisfied that the father’s intentions were capable of being fulfilled and that his Honour had not made any finding that the father had a “poor track record”.
158.	Although we consider that it may have been open to his Honour to draw adverse inferences against the father as a result of the many matters to which counsel for the sister referred, his Honour did not do so and was satisfied that the father could, and would, carry out his role as a father appropriately in the future.  Such findings were open to his Honour and we therefore do not consider there is any merit in this ground of appeal.
Ground 4 – emphasis given to placement of other children
159.	By this ground it is asserted the Federal Magistrate erred, and his discretion miscarried, in placing undue emphasis on the placement of O’s siblings with their fathers after the death of O’s mother, without referring to the involvement of those men with their children prior to her death.  
160.	His Honour made reference to the placement of O’s three half-sisters in the context of his consideration of the evidence of O’s sister relating to the customs of the Wakka Wakka people.  The two older half-sisters, M and K, were living with O’s mother before her death, but went to live with their father very shortly after she died.  The youngest half-sister, C, was living with her father (who was still in a relationship with O’s mother at the time of accident) and has remained in his care following her death.  
161.	It will be recalled that O’s sister asserted it was customary amongst Wakka Wakka people for an eldest child to assume responsibility for a younger sibling when a parent of the child had passed away.  It will also be recalled that in paragraph 36 of his reasons the Federal Magistrate said the fact three of the children were living with their fathers appeared to be consistent with this evidence.  His Honour went on to say:
36 	…To put it another way, if there is a suitable parent available it is not inconsistent with the Wakka Wakka tradition for a child who has lost one parent to go and live with the remaining suitable parent.  In this case, for the reasons that I will continue to enunciate, I consider that there is a suitable parent and that of course is the father.
162.	Counsel for O’s sister submitted in support of this ground that:
His Honour interpreted the matriarchal Wakka Wakka practices to include the placement of child with their Respondent [semble father] on the death of their mother.  Perhaps he had had regard to the Family Report (II) at 5.4 in that respect.  However, as the Family Report writer accepted at trial, she did not ask the [sister] about her Aboriginality, or the Wakka Wakka in either report… Her opinion is founded on assumption and speculation; so too is His Honours [sic].
163.	It was further submitted that the Federal Magistrate had failed to mention the significant involvement of the other two fathers in the lives of their daughters, in contrast to the infrequent involvement of O’s father.  Attention was drawn to the evidence given by O’s sister that M and K’s father had “always been involved [in] his children’s lives and he’s always been a good parent” (Transcript, page 54).  C, of course, was already living with her father at the time her mother died.  
164.	Our attention was also drawn to the evidence of O’s sister that as both of the other fathers had been actively involved in the upbringing of their daughters, she had not questioned the arrangements for those children to live with their father (sister’s trial affidavit, paragraph 22, Appeal Book 80).  O’s sister had also said that whilst she knew what sort of parent the other two fathers were to their children, she could not say the same about O’s father (Transcript, page 55).  
165.	O’s father confirmed that M and K’s father had been a regular visitor to their mother’s home, and in fact lived in the home for “weeks at a time”, even when the father was in a relationship with the mother (Appeal Book 120 and 137).  As previously noted, C’s father was living with her at the time of the death of the mother.
166.	In these circumstances it was submitted by counsel for the sister that the Federal Magistrate had not provided any or any sufficient reasons to indicate “why he would not differentiate between the placement of children with fathers who were significantly involved with their children, and living locally, and a largely absent [father] living distantly”.
167.	In response, counsel for the father submitted that the Federal Magistrate had appropriately considered the issue of the placement of O’s half-sisters with their fathers in order to determine whether this was culturally appropriate.  It was further submitted that his Honour appropriately considered this issue when he concluded it was not culturally inappropriate for a Wakka Wakka child to be placed with a biological father upon the death of their mother.
168.	It was finally submitted by counsel for the father that his Honour had not based his decision simply on the fact that O’s half-sisters had been placed with their fathers, and had instead considered all of the s 60CC matters, balancing each consideration in coming to his final conclusion.  
169.	Counsel for the Independent Children’s Lawyer concurred with the submissions of the father and submitted that at no stage had his Honour suggested that part of his reasoning process for deciding O should live with his father was because the other children were also living with their fathers.
170.	We accept that the stated purpose of the Federal Magistrate in referring to the placement of O’s half-sisters was to ascertain whether placing O with his father would be culturally inappropriate.  However, we have concerns about his Honour’s finding that “if there is a suitable parent available it is not inconsistent with the Wakka Wakka tradition for a child who has lost one parent to go and live with the remaining suitable parent” and the use he then made of that finding.    
171.	His Honour’s formulation of the issue surrounding the placement of Wakka Wakka children with their fathers introduced the concept of the “suitable parent”.  The question that inevitably arises is by whose norms is the “suitability” of the parent to be judged?  In the absence of any direct evidence on this point concerning Wakka Wakka traditions, it was likely that the assessment would be made by reference to the norms of the dominant European/white Australian culture – which is taken for granted and about which expert evidence is never required.  (We say there was no direct evidence on this point because the only “cultural evidence” was that given by O’s sister.  She did not address the issue of the “suitable parent”, this being his Honour’s own construct.)    
172.	His Honour deemed the father a “suitable parent” principally because he had the capacity to provide for O’s needs; had indicated his willingness to assume the role of father; and had developed an excellent relationship with O.  However, his Honour’s decision was strongly influenced (as we will demonstrate in due course) by reliance on academic writing/research which places great weight on the significance of the tie between children and their biological parents in circumstances where there was reason to question whether such research could be safely applied to an indigenous child.  
173.	In our view there were only a few findings and deductions reasonably available to his Honour from the limited evidence.  We suggest they comprise the following:
•	the Wakka Wakka tribal line is matriarchic and it is the women who are dominant and assume the leadership role (sister’s affidavit paragraph 38, which was clearly accepted by his Honour at paragraph 37 of his reasons);
•	when a parent passes away it falls to the oldest child to look after their financial affairs and any younger children and to make the necessary arrangements (sister’s affidavit paragraph 39, which was expressly accepted by his Honour at paragraph 34 of his reasons);
•	this custom must be seen as subject to exceptions which may be assumed to be culturally appropriate, given what had been arranged within the family for the three half-sisters;
•	there was no evidence of the breadth of the exceptions to the custom; however, by inference the exceptions might include the following:
•	where the child is already living with the surviving parent (as in the case of C);
•	where the surviving parent lives nearby and has been regularly involved in the child’s life (as in the case of M and K);
•	where the eldest sibling consents to the child living with the father (as in the case of all three children).
174.	We do not consider, however, that it could be inferred from the evidence that it was culturally appropriate for a child to be placed with a parent who had been almost totally absent from the life of the child in preference to an adult sister who was able (and anxious) to provide for the child’s needs, who had lived with the child for the greater part of the child’s life and who had been the principal carer for an extended period. 
175.	We accept that the Federal Magistrate at no stage expressly found that the placement of O with his father was culturally appropriate.  However, reading the judgment as a whole, and paragraph 36 in particular, we consider such a finding is implicit.  
176.	We acknowledge that in his careful and sensitively expressed reasons, the Federal Magistrate made every effort to pay proper regard to the complex cultural issues.  We  also acknowledge he was constrained by the absence of evidence, other than that given by O’s sister, about what was a culturally appropriate placement for O.  Furthermore, we accept it was open to him to proceed on the basis that there must be exceptions to the rather sweeping generalisation made by O’s sister in her evidence about placement of children with their eldest sibling (consider, for example, where the eldest sibling may be a very young child).  This, however, is as far as the evidence could safely have taken his Honour.  He had no evidence on which he could determine what were the culturally appropriate exceptions to the accepted custom.  
177.	What then was his Honour to do in these difficult circumstances?  In our view, the first step should have been to consider the provisions of the legislation dealing specifically with children of Aboriginal and Torres Strait Islander background.  
178.	Careful attention was paid to s 60B(3) and s 60CC(3)(h), which deal with the way in which an Aboriginal or Torres Strait Islander child can enjoy his or her culture.  However, no mention was made of s 61F.  As we consider that section to be of crucial importance in any case involving an indigenous child, we will recite it again:
Section 61F Application to Aboriginal or Torres Strait Islander children
In:
(a) 	applying this Part [i.e. Part VII] to the circumstances of an Aboriginal or Torres Strait Islander child; or
(b) 	identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;
the court must have regard to any kinship obligations, and child-rearing practices, of the child’s Aboriginal or Torres Strait Islander culture.
179.	Section 61F was inserted in the legislation by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).  The relevant Explanatory Memorandum noted that:
131. 	… The purpose of this provision is to ensure that the unique kinship obligations and child-rearing practices (such as the involvement of extended family) of Aboriginal and Torres Strait Islander culture are recognised by the court when making decisions about the parenting of an Aboriginal or Torres Strait Islander child. This provision is consistent with other amendments to facilitate greater involvement of extended family members in the lives of children.  (our emphasis added)
180.	The Explanatory Memorandum recorded that s 61F implemented the first recommendation made in the Family Law Council report, “Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze” (December 2004). 
181.	The Pathways Report had recommended that s 61C (which deals with allocation of parental responsibility) should acknowledge the “unique kinship obligations and child-rearing practices of indigenous culture”.  
182.	The Family Law Council opposed this recommendation and explained its view in these terms:
Council does not agree with the proposed amendment to s 61C given: 
(i)  	the difficulty with deciding just who has parental responsibility under the proposed amendment, and
(ii)  	that it is not clear, even if it were possible to determine fairly easily who, other than the biological parent, had parental responsibility, whether that parental responsibility would include the whole bundle of parental responsibilities envisaged under the common law and reflected in the Family Law Act and other Acts.
This conclusion was reached notwithstanding that Council was sympathetic to, and agreed in principle with the intention of the proposed amendment. In the end, Council simply could not satisfy itself that there was a practicable way of amending s 61C so as to avoid uncertainty and preclude unintended consequences.
However, Council suggests that a new s 61F along similar lines to that envisaged by the Out of the Maze recommendation, might be inserted at the end of Div 2 of Pt VII of the Family Law Act, without attracting the adverse consequences attaching to the proposal as it stands.
While of undoubted symbolic importance, Council concluded that such an amendment would not of itself provide the functional recognition in the many spheres of government with which Aboriginal and Torres Strait Islander families must deal. Further investigation is required into how this functional recognition of kinship arrangements can be provided by the various arms and tiers of government.
183.	It will be seen that s 61F, in the form ultimately enacted, applies to all cases involving an Aboriginal or Torres Strait Islander child.  In proceedings under Part VII relating to such a child, the court must have regard to the child-rearing practices of the relevant Aboriginal or Torres Strait Islander culture.  Failure to take account of that provision would, in our view, ordinarily amount to appealable error.   (For an illustration of a case in which s 61F was properly treated as an “integral” part of the decision making process see the judgment of Young J in Davis v Davis (2008) 38 Fam LR 671.) 
184.	Section 61F does not say that the outcome will be determined by application of the relevant kinship obligations and child-rearing practices, but the court must have regard to them.  In our view, this can only be seen to be done if findings are made regarding those obligations/practices and adequate reasons are given to explain why a decision has been made that either follows or departs from them.  We accept this can be done without the court making express reference to s 61F, but we consider it would be desirable that the section is at least mentioned, if not discussed.  
185.	Although the Federal Magistrate made no reference to s 61F, it is apparent he did have regard to the child-rearing practices of the Wakka Wakka people following the death of a parent.  He recited the only evidence before him on the point and he accepted it.  He then properly recognised there was a lacuna in the evidence, in that the sister had not explained the extent of the exceptions to the customary practice which would make placements of children with someone other than their eldest sibling culturally appropriate.  
186.	Upon identifying the lacuna, we consider his Honour had two options.  One would have been to adjourn the proceedings until such time as evidence could be found to overcome the lacuna.  The other was to do the best he could with the evidence that had been placed before him.  
187.	A rigid interpretation of s 61F may have suggested that the adjournment option was to be preferred.  On the face of the section, it is mandatory for the court to have regard to the relevant indigenous child-rearing practice in every case involving a child of Aboriginal or Torres Strait Islander background.  If there is no evidence, or there is a lacuna in the evidence, the court cannot fully comply with the obligation imposed by the statute.  
188.	However, such a strict interpretation of s 61F would be unrealistic.  In many cases there will be no evidence at all of the relevant custom or practice.  This may be because there is no acceptable evidence available to establish the custom or practice.  Alternatively, there may be no evidence because no party asserts it to be of any relevance.  For example, the child may have been brought up in a family where all meaningful attachment to indigenous culture has been lost.  
189.	Although the court, especially since the advent of Division 12A of Part VII, is entitled to insist on further evidence being sought, we do not consider the Federal Magistrate erred in deciding not to adjourn the proceedings and electing instead to do the best he could with the evidence he had available.  
190.	The parties and the Independent Children’s Lawyer had been given ample opportunity to put appropriate evidence before his Honour about the relevant cultural issues.  The best the sister’s representatives could do was to have their client give expert evidence in her own case, which ultimately did not adequately address the issue.  There was no reason for his Honour to conclude that an adjournment would have resulted in any more evidence becoming available.  The parties were all legally aided.  The proceedings had been on foot for some time and were being conducted in a court which has a legislative obligation to “proceed without undue formality and must endeavour to ensure that the proceedings are not protracted” (Federal Magistrates Act 1999 (Cth), s 42). 
191.	Although we have concluded that his Honour was entitled to proceed in the absence of complete evidence about the relevant indigenous child-rearing practice, we have determined that he erred in seeking to fill the lacuna in the evidence by proceeding on the assumption that it was culturally appropriate to place O with his father simply because the other three children (raised in entirely different circumstances) had been placed with their father.   
192.	We should mention before moving from this ground that our discussion has focussed entirely on the child-rearing practices of the Wakka Wakka people.  No evidence was led before his Honour concerning the child-rearing practices of Torres Strait Islanders following the death of a parent.  It would appear the proceedings were conducted on an assumption that as O had grown up with Wakka Wakka people it was only their culture that was to be considered for this particular purpose, although the Torres Strait Islander culture was clearly seen as of great importance in other contexts.  
Ground 8 – absence of anthropological evidence 
193.	We propose to consider Ground 8 next, as it logically follows on from the previous ground where we have discussed the options available to his Honour to fill the lacuna in the evidence concerning cultural issues.
194.	By this ground it was asserted that his Honour erred in failing to inform himself of any anthropological evidence and/or “well recognised peer reviewed research” concerning the respective Aboriginal and Torres Strait Islander cultures.
195.	The written submissions of counsel for O’s sister commenced by referring to discussions during the trial concerning the state of the “anthropological evidence”.  Particular attention was drawn to what transpired during that part of the hearing in which O’s sister purported to give evidence that in the Wakka Wakka culture it was the duty or obligation of the eldest daughter, upon the passing of her mother, to step into her shoes and take on a parenting role.  She said this had been the case “throughout my whole family from generation and generations before myself and my mum and her grandmother and so on”.  
196.	Upon hearing this evidence, his Honour initially enquired whether or not “we have an expert from the Wakka Wakka tribe to give this evidence?  Because I think that’s what they’re going to need”.  His Honour then went on to refer to the fact that O’s sister was only 21 years old and he then enquired:
Is there a tribal elder who can give that evidence?  Because that’s what the Court would require.  Before it could take proper notice of it … I mean it’s coming from a relatively younger mother.  
197.	After further exchanges with counsel concerning the options available, including calling “Aunty [S]”, who was said to be available, his Honour ruled, “it’s [for] the party to run the matter”  (Transcript, pages 47 and 48). 
198.	Counsel for O’s sister also referred to the role that could have been played by the Independent Children’s Lawyer in adducing evidence concerning cultural issues, especially after the sister’s solicitors wrote to the ICL in June 2008 about the sister’s Aboriginality.  Counsel relied upon the following remarks made by the Full Court in B and R and the Separate Representative (1995) FLC 92-636 at 82,414 to 82,415:	
Whilst many of the matters to which we have referred above are now so notorious that it would be expected that a trial judge would take judicial notice of them, nevertheless, we think that in future cases involving the custody of an Aboriginal child it would be expected that these issues would be explored and evidence provided, especially about their significance in the particular case. We do not consider that a matter such as this should be decided on the basis of the general, more personal, views and experience of the judge in question. This is a specific issue in the custody of Aboriginal children which requires delicate and professional handling to ensure that all aspects of it are considered and that the interests of the child, especially long term, are taken into account. This material is partly constituted by readily accessible public information of which it would be expected that a trial Judge would inform himself or herself, but it would also be important, at least for the predictable future, for the detail and thrust of that material to be marshalled and presented to the Court by an appropriately qualified expert so as to avoid the risk that the case may turn upon varying degrees of individual knowledge. That approach accords with the way in which this evidence has been presented in the more recent of the Australian cases referred to above.
Consequently, in such cases it would be expected that a separate representative would be appointed at an early stage and that one of the responsibilities of the separate representative would be to examine these issues and ensure that all relevant evidence and submissions are placed before the Court.  That is not to say that the task lies exclusively or even primarily with the separate representative or that the parties should not be expected to put forward evidence relating to this.  However, it is obviously a matter which goes to a central aspect of the separate representative’s role in a case like this and it would need to be approached in that way.
199.	Counsel for the sister observed that ultimately his Honour “decided to just accept what the parties had to say about their respective cultures” – which is indeed what his Honour said at trial he would do (Transcript, page 50).  However, counsel for the sister submitted that the evidence of the parties had “obvious limitations” and drew attention to s 69ZX, which it was submitted “gives the Court powers and duties to receive evidence far beyond just ‘leaving it to the parties’”.
200.	Counsel for the sister relied upon the observations made in McCall & Clark (2009) FLC 93-405 where the Full Court said:
126.	There is no suggestion in this case that the Federal Magistrate was referred to any matter which would fall within the purview of s 69ZX(3) to inform himself of matters relevant to establishing a meaningful relationship for a three year old child with a parent, where the child has experienced a significant period of time with little interaction with that parent.  Neither party tendered to the Federal Magistrate any of the well recognised peer reviewed research on the establishment of primary and significant attachments of infants and young children, nor did the Federal Magistrate raise with the parties that he could have recourse to such material.  Absent such evidence the Federal Magistrate could not have informed himself of such matters since the type of research required would not, in our view, fall within the term ‘common knowledge’ in s 144(1)(a) of the Evidence Act 1995 (Cth). It may have been admissible under s 144(1)(b) after giving the necessary notice prescribed in s 144(4) of that Act.
127.	Perhaps because of the absence of such evidence the Federal Magistrate in our view fell into error in his failure to adequately consider one of the primary considerations in a finding of what is in the best interests of the child, namely a consideration of the benefit of the child having a meaningful relationship with both parents and how that meaningful relationship could be achieved.
201.	It was finally submitted on behalf of the sister that the Federal Magistrate’s reasons did not reveal that his Honour had:
•	informed himself of the “well recognized peer research” conducted, say by Stephen Ralph, an indigenous man and formerly a consultant to the Court, “The Best Interests of the Aboriginal Child in Family Law Proceedings” (1998) 12 Australian Journal of Family Law 2;
•	informed himself of the “anthropological” evidence cited in the decision of the Full Court in In re CP (1997) FLC 92-741, including for example that his Honour ought not just consider the child as sharing an Aboriginal and Torres Strait Islander heritage, but had to appreciate that Aboriginal groups were not homogenous;
•	been conscious of what was said by the Full Court in B and R, (supra at 82,414).  In particular, the importance that the children’s culture: 
raiseS a relevant and potentially important issue [to the] determination of the best interests of [the children].  It adds a further dimension to the delicate and important task of the adjudication of disputes between [relevant parties] about the future custody of [the child].  The analysis by Evatt CJ in Goudge… correctly states that position.
202.	In response, counsel for the father submitted that his Honour had informed the sister’s advisers at a mention hearing before trial that if the sister wished to call expert evidence concerning the Wakka Wakka traditions she was free to do so.  It was submitted that when the matter was raised again by the sister at trial the Federal Magistrate had appropriately dealt with this issue by accepting the sister’s evidence, as well as that of the father, concerning their respective cultural traditions.  It was noted that when his Honour indicated this was the approach he intended to take, his position was accepted by both parties.  
203.	Counsel for the father also drew attention to the portions of his Honour’s reasons in which he accepted that O would have the benefit of both the Aboriginal and Torres Strait Islander cultural heritages but had determined that while O’s cultural background was extremely important, it was only one of many factors to be considered and ought not “totally subsume the case”.
204.	Counsel for the Independent Children’s Lawyer joined with the submissions of the father, noting that there was no need for the Court to inform itself of any matters in respect of the Wakka Wakka culture as the Federal Magistrate had “accepted wholly the evidence of the [sister] in respect of the traditions of those people”.  
205.	Counsel for the Independent Children’s Lawyer further submitted that apart from the fact that it was unnecessary for his Honour to have regard to “well recognized peer research” such as that by Mr Ralph, the mother had never referred to Mr Ralph’s article during the course of the trial.  It was submitted that even if the mother “ran into funding issues” in adducing cultural evidence, material such as that published by Mr Ralph could have been put to the report writer and her views ascertained; however, this had not occurred.
206.	It was finally submitted that the sister could have sought an adjournment, either in the short term to have the report writer consider Mr Ralph’s article, or a longer term adjournment “to have perhaps the court appoint Mr Ralph”, but no such request for an adjournment had been made.
207.	We begin our discussion of these submissions by observing that no anthropological evidence/“well recognised peer reviewed research” was sought to be tendered to the Federal Magistrate.  Hence, by this ground it is effectively  asserted that his Honour erred in not having done something that neither party, nor the Independent Children’s Lawyer, asked him to do.  For this complaint to succeed it would need to be established not only that the Federal Magistrate could have, but that he should have, informed himself about the evidence/research to which the sister’s counsel made reference in her submissions.  
208.	The limitations that would have been associated with the Federal Magistrate seeking to rely upon information that had not been the subject of evidence or submission at trial have been identified by the Full Court in the passage from McCall & Clark on which counsel for the sister relied. 
209.	Those limitations arise by operation of s 144 of the Evidence Act 1995 (Cth), which relevantly provides as follows:

144	Matters of common knowledge
(1)	Proof is not required about knowledge that is not reasonably open to question and is:
(a)	common knowledge in the locality in which the proceeding is being held or generally; or
(b)	capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2)	The judge may acquire knowledge of that kind in any way the judge thinks fit.
	(3)	The court… is to take knowledge of that kind into account.
(4)	The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
210.	Had the Federal Magistrate informed himself of evidence/research that he considered was a matter of “common knowledge”, he would then have been obliged, by operation of s 144(4), to give the parties an opportunity to make submissions and to refer to other relevant information – unless failure to do so would not cause unfair prejudice to either party.  
211.	It seems to us that the additional evidence/research to which the Federal Magistrate might have had recourse would be available in two principal forms.  
212.	The first would have been what the Full Court in B and R (supra) called “readily accessible public information of which it would be expected that a trial judge would inform himself or herself”.  In that case the Full Court was dealing with the refusal by a trial Judge to allow evidence to be adduced of the experiences of a number of Aboriginal children raised in non-Aboriginal environments and, in particular, the difficulties they encountered and the damage to identity and self-esteem which they suffered.  
213.	The second source of additional evidence/research to which the Federal Magistrate could have had recourse were the decisions, both at first instance and of the Full Court, in which expert/informed evidence has been led and accepted in matters involving indigenous children.  The more important of these decision have been conveniently collected by Heather McRae et al in Indigenous Legal Materials:  Commentary and Materials (4th ed, 2009).  
214.	This potentially rich source of information is available to the Court by resort to s 69ZX(3), which provides as follows: 
The court may, in child‑related proceedings:
(a)	receive into evidence the transcript of evidence in any other proceedings before:
	(i)	the court; or
	(ii)	another court; or
	(iii)	a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b)	adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
215.	The subsection is followed by a “Note” which reads, “This subsection may be particularly relevant for Aboriginal or Torres Strait Islander children”.  
216.	The reasoning behind the Note and the purpose of s 69ZX(3) can be seen from the relevant portion of the Explanatory Memorandum which accompanied the 2006 legislation which inserted the provision in the Act.  This is set out below (our emphasis added):
29.	Subsection 69ZX(3) inserts a modified version of section 86 of the Native Title Act 1993.  It provides that the court may, in child-related proceedings, receive into evidence the transcript of evidence in any other proceedings before a court or tribunal and draw any conclusions of fact from the transcript that it thinks proper.  The court may also adopt any recommendation, finding, decision or judgment of any court or tribunal.
30.	This amendment implements recommendation 5 of the Family Law Council’s December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze.  The Report found that such a provision could provide a court with the flexibility to draw on relevant evidence adduced in other proceedings in other courts to inform decision-making in the best interests of the child pursuant to subsection 68F(2).  It suggested that, in the case of an Aboriginal or Torres Strait Island child, such an approach would assist a court in informing itself of the content of the relevant kinship obligations and child-rearing practices wherever such reliable information exists.  In this regard, the provision is relevant to new section 61F … which requires the court to have regard to the kinship obligations and child-rearing practices that are relevant to an Aboriginal or Torres Strait Islander child.
31.	This provision does not apply only to proceedings concerning an Aboriginal or Torres Strait Islander child.  It applies to all child-related proceedings.  In this respect, the provision implements recommendation 48 of the LACA Report.  The Committee was of the view that extending the provision to all children would be helpful and may assist in addressing issues surrounding claims of family violence and abuse.  The note to subsection 69ZX(3) clarifies that the subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.
217.	We accept the submission of counsel for O’s sister that by virtue of s 69ZX(3) the Federal Magistrate could have received, for example, the anthropological evidence accepted in In re CP (supra at 83,986).  
218.	In re CP was a matter bearing some similarity to the present case in that all the parties were indigenous people.  One party (unrelated to the child, but who had been caring for him for a number of years) was of Thursday Islander descent but regarded herself as “Aboriginal”, as did all her family.  The other party, the biological mother, was a Tiwi woman.  The third party was also a Tiwi woman, who “in the Tiwi way” had the same relationship with the biological mother as a sister.   
219.	In giving his reasons, the trial Judge in In re CP had referred to the anthropological evidence led by the Independent Children’s Lawyer.  We set out below the relevant passage from the first instance judgment:
This witness [a lecturer in Social Anthropology and Cultural Heritage Studies at the Charles Sturt University] is an anthropologist who was not required for cross-examination.
Her report attached to her affidavit highlights the definition of extended family within the Aboriginal community, contrasted with the Anglo-Australian community. The Aboriginal networks are vast.
She said that usually biological mothers take on the caregiver role. She said that many children are raised by people other than biological parents. She said it was not unusual for Aboriginal children to move freely and frequently. The raising of children for Aboriginal people involves more than merely physical and emotional care, but involves the issue of cultural heritage. Adoption is rare among Aboriginal people, whereas in Torres Strait it is a common, and highly valued, social practice. Adoption refers to the transfer of a child from one kin grouping to another.
I accepted this evidence.
220.	The Full Court decided that the passage cited by the trial Judge in In re CP had not adequately captured the unchallenged evidence given by the anthropologist.  In order to better capture her evidence, the Full Court recited the following passages from her report (at 83,987 to 83,988):
[Aboriginal] children are born into a world of kin which is so vast they will probably be meeting new kin when they are old men and women. For an Aboriginal child, this network will become one of the two key ways in which their identity as a person is constructed. The other is through relations to country. Both are able to link the child to its ancestors and thus, by implication, to its descendants.
…
Disadvantages of not bringing up an Aboriginal child within his or her own community of kin and within at least frequent visiting distance of country with which he or she is identified might include: 
•  	the loss of relations with a vast range of kin who will perform a wide variety of roles associated with social relations, emotional and physical support, educative knowledge, economic interactions and spiritual training. This is as true of Aboriginal people from communities in “settled Australia” whose continuities of tradition have in certain cases been greatly disturbed by their colonial histories as well as those in more remote areas;
•  	loss of knowledge which stems from the social interactions mentioned above;
•  	ambiguities in or loss of identity with one’s own kin and country, features I understand as essential to identity from an indigenous point of view, and which are much more specific to certain people and place than is the broader categorisation of “Aboriginal” used by the wider Australian society and which does not necessarily recognise the specificity of indigenous identity… 
…
It is not at all unusual for Aboriginal children to move freely, even frequently, although the legal system tries to control and restrict this. Such movements, except for infants, are almost always with the willing consent of the child and are frequently initiated by the child who has a right to express their own desires with regard to residential arrangements. Moves can be occasioned by many factors, including the desire for change, to reside with paternal kin for some time, to move away from conflicts — in other words, many of the same reasons adults express as well for moving around. These movements between kin, and often between communities, are seen as important ways in which children acquire their understandings of the ways in which kinship and country relationships are lived out. They are thus not a sign of disruption as they might be interpreted by non-Aboriginal people but are an important factor in socialising children… 
…
Adoption is the practice which most differentiates Aboriginal and Torres Strait Islander societies. Adoption is extremely rare among Aboriginal peoples whereas in Torres Strait it is a common and highly valued social practice.
Adoption, where this refers to the transfer of a child from one kin grouping to another is, to my knowledge, extremely rare among Aboriginal people as a valued indigenous cultural practice. It is, however, a practice which has been imposed on Aboriginal peoples by Anglo-Australian society, with consequences that have been culturally devastating for all concerned.
Aboriginal experience of adoption is largely that of having had children taken away by non-Aboriginal people in positions of power, who thus alienate them from their own children, what many may refer to as a form of cultural genocide because it both denies the child the right to be socialised within its own cultural context as well as denies the right of both parents and the whole kinship network to their relations with this child. Fostering too, as a temporary transfer of rights is equally inapplicable in indigenous terms. The sharing of the caregiving role is a more fluid system, and even though it requires to be legalised to some extent within Australian law, this is not necessarily an Aboriginal value. The child is understood to be moving within the one family unit, even if it involves a number of kin and different communities.
…
In contrast, Torres Strait customary adoption from one set of kin to another is intended to be a permanent transfer, even though this is not always the outcome. The adoption is often kept secret when the child is young so as to ensure that affective ties between adopter and adoptee are strengthened so as to make the relationships a more permanent one. The child is a gift, to strengthen bonds of kinship and friendship and the social qualities of the transfer are valued more highly than issues such as childlessness, for instance. Adoption is not about having to relinquish under social pressure, or associated with loss as in Anglo-Australian tradition, in which it is commonly associated with. Approximately 25% to 30% of children in my data base spanning six generations were adopted, and the actual number is likely to be higher. An adopted child (teridai kazi in Saibai) is distinguished from a “blood child” (Kula kazi) and a child being temporarily cared for — for a day or a longer time — who is a “person being watched” (dana patipa kazi). It is the case that children sometimes return to their natal homes but many will still maintain close relations with their adoptive parents. The idea is, however, one of transfer, and a return may be seen as disappointing to the parties concerned even if not contested… 
221.	The Full Court in In re CP said (at 83,989) that they had mentioned the contrasting attitudes referred to in the passage above relating to adoption because:
it must of itself be a highly relevant difference between the parties in this case. On the one hand, the idea of adoption outside the family or group is a repugnant concept from the point of view of the Tiwi Islanders, whereas on the other, it is an accepted practice in the culture of the Torres Strait Islanders.
222.	We accept that nothing was said in In re CP which would have assisted the Federal Magistrate to resolve what he properly identified as the lacuna in the evidence relating to the circumstances in which it would be culturally appropriate for a Wakka Wakka boy to be placed with his father.  That lacuna could only properly be filled by evidence being given by someone with expertise or authority to speak about the traditions of the Wakka Wakka people.  
223.	On the other hand, we consider there was a wealth of material in the evidence accepted in In re CP that was of enormous relevance to the concepts of “parent-child attachment, parent-child identification and parent-child belonging” on which the report writer so heavily relied in making the recommendation to place O with his only surviving parent.    
224.	The obvious difficulty from the sister’s viewpoint is that her counsel did not put to the report writer any of the anthropological evidence accepted in In re CP.   Nor did she draw the published decision in that case to the attention of the Federal Magistrate.  The consequences of her failure to do so will be discussed when we come to Ground 6, which deals with complaints associated with the acceptance by his Honour of the evidence of the report writer.      
225.	We should record that the desirability of calling anthropological evidence in cases involving indigenous children has been the subject of recent consideration by another Full Court.  In Hort & Verran (supra) the Full Court said:
100	It was fairly conceded by Counsel for the mother that no-one had ever asked the learned Federal Magistrate to adjourn the proceedings in order that anyone might adduce anthropological evidence. Nor was his Honour ever requested to direct the ICL to seek to obtain such evidence for his assistance. In those circumstances, it would be surprising if this challenge could succeed. 
101	Counsel for the mother referred the Full Court to the decision of the Full Court in In the Marriage of B and R 19 Fam LR 594, in support of his contention that, the trial Judge should have sought anthropological evidence with respect to the children’s Tiwi identity and heritage, or that the ICL should have sought to adduce such evidence. In B and R the Full Court said at page 624: 
Whilst many of the matters to which we have referred above are now so notorious that it would be expected that a trial judge would take judicial notice of them, nevertheless, we think that in future cases involving the custody of an Aboriginal child it would be expected that these issues would be explored and evidence provided especially about their significance in the particular case. We do not consider that a matter such as this should be decided on the basis of the general, more personal, views and experience of the judge in question. This is a specific issue in the custody of Aboriginal children which requires delicate and professional handling to ensure that all aspects of it are considered and that the interests of the child, especially long term, are taken into account. This material is partly constituted by readily accessible public information of which it would be expected that a trial judge would inform himself or herself, but it would also be important, at least for the predictable future, for the detail and thrust of that material to be marshalled and presented to the court by an appropriately qualified expert so as to avoid the risk that the case may turn upon varying degrees of individual knowledge. That approach accords with the way in which this evidence has been presented in the more recent of the Australian cases referred to above. 
102	It is in our view significant that the Full Court referred to evidence by “an appropriately qualified expert”, rather than suggesting that such expert should, or was required to be an anthropologist, or an expert in any other particular field of learning. Nor did the Full Court suggest that the ICL was so constrained. 
103.	The Full Court said with respect to the role of the ICL (styled the “separate representative” by the Act at that time) that:
Consequently, in such cases it would be expected that a separate representative would be appointed at an early stage and that one of the responsibilities of the separate representative would be to examine these issues and ensure that all relevant evidence and submissions are placed before the court. That is not to say 	that the task lies exclusively or even primarily with the separate representative or that the parties should not be expected to put forward evidence relating to this. However, it is obviously a matter which goes to a central aspect of the separate representative's role in a case like this and it would need to be approached in that way.
104	In this case, it is clear that evidence from “an appropriately qualified expert” with respect to the children’s Tiwi identity and culture, namely, [the maternal grandmother] was adduced in the mother’s case. Unless it be demonstrated that such evidence was deficient, or that there was more appropriate evidence which could have been adduced, we do not consider that the learned Federal Magistrate or the ICL could fairly be criticised. Nor could we conclude that his Honour erred in the manner this complaint asserts.
226.	After referring to the judgment of Young J in Davis v Davis (2008) 38 Fam LR 671, the Full Court in Hort & Verran continued:
107	As the paragraphs of his judgment to which we have already referred confirm, the learned Federal Magistrate was acutely aware of the need for the children to maintain a real connection with their Tiwi culture, and to avoid them “simply receiving information and knowledge about their cultural background in a tokenistic or meaningless way”… His Honour informed himself with respect to these issues through the evidence of [the maternal grandmother]. As his reasons for judgment clearly reveal, the dilemma which confronted his Honour, as he clearly appreciated, was balancing the entitlement of the children to a real connection with their Tiwi culture against other issues in the case, and particularly those relating to the stability of the children’s living arrangements.
108	There was no anthropological evidence before the learned Federal Magistrate, as his Honour observed. However, his Honour had the benefit of evidence from [the maternal grandmother], a Tiwi Elder. Whilst [the maternal grandmother] was, for reasons which his Honour recorded, understandably less than entirely impartial, she was able to, and gave extensive evidence with respect to what was broadly described at trial and before us as “Aboriginality”. It is clear that the learned Federal Magistrate accepted [the maternal grandmother’s] evidence in relation to those matters, save in one respect, which we do not consider related to the factual aspects of Aboriginality to which she deposed. There is no suggestion that it was other than open to his Honour to accept what [the maternal grandmother] said about Aboriginality.
227.	After reviewing the evidence given by the maternal grandmother (who was a tribal elder), the Full Court said:
120	With all due respect to anthropologists, the suggestion that the proceedings were in some unspecified way deficient because of the absence of anthropological evidence is, in the circumstances of this case, somewhat disingenuous. It could be asked rhetorically, and was during the course of the hearing of the mother’s appeal, what better evidence could the learned Federal Magistrate have had with respect to Tiwi identity and culture than the evidence of a Tiwi Elder such as [the maternal grandmother]. That is particularly so given that, to the extent that [the maternal grandmother] was less than entirely impartial, that was not suggested to have undermined the reliability of the evidence given by her, or his Honour’s acceptance of it. In any event, an anthropologist would undoubtedly have been significantly reliant upon information provided by a Tiwi Elder like [the maternal grandmother] for the purpose of any evidence he or she might have given in relation to Aboriginality.
121	Whilst there may be cases where anthropological evidence is of assistance, we question the extent to which that could realistically be so when, as occurred in this case, there is available expert opinion evidence from an Elder of a particular Indigenous group or society. It is to be remembered that the cultural heritages of the hundreds of Indigenous tribes in this country vary significantly, and that the culture is preserved and passed on by the Indigenous Elders to whom it is entrusted, via the oral tradition. Thankfully, it is now generally accepted in Australia that Aboriginal peoples can speak for themselves, particularly in relation to their own culture and traditions. The potential for non-Aboriginal Euro-centric impressions or interpretations to usefully inform Courts in relation to Aboriginality must now be limited in ways it was not in earlier times.
228.	The decision in Hort & Verran was handed down after completion of argument in the present appeal and we therefore do not have the benefit of any submissions on what was said by the Full Court.  Whilst we acknowledge there are limitations associated with evidence of cultural traditions being given by a party or a person closely aligned to a party, we are inclined to respectfully agree with their Honours that evidence relating to indigenous cultural practices need not necessarily be given by an anthropologist, nor need it be the subject of “well recognised peer reviewed research”.  We accept that the best evidence may be that given, if it is available, by an elder or such other person within the indigenous community who is accepted by the community as being able to speak with authority on its customs.  
229.	The views of the Full Court in Hort & Verran resonate with those previously expressed by a former Indigenous Family Liaison Officer of the Family Court of Australia, Ms Josephine Akee.  The following is an extract from Ms Akee’s paper presented in 2005 at the International Forum on Family Relationships in Transition (reproduced in (2006) 75 Family Matters 82):
One of the things that our people have been highly concerned about is that “wrong people” are being brought in to give special or expert (cultural) advice.  It has been brought to my notice that anthropologists have been brought in to talk about and throw light on our Indigenous culture.  Our people are saying, “These are white fellows that have got some good education at some university, but they are not us.  “We have to have our own people.”  It comes back again to the fact that people (Indigenous) might not have the formal qualifications – but I would argue any time that what’s important is the formal qualifications according to your culture and that’s something that definitely needs to be recognized.
230.	In the present case O’s sister did not purport to be an elder of her people; however, the evidence she gave on cultural issues was not challenged and was accepted as authoritative by his Honour.  The difficulty with her evidence was not that it was not given by an anthropologist or based on “well recognised peer reviewed research”, but that it failed to address fully what appeared to be necessary exceptions to the custom about which she had given evidence.  
Ground 6 – weight given to the family reports 
231.	This ground asserts that his Honour erred and his discretion miscarried by accepting and placing weight on the family report[s] and/or by finding that the decision in Makita had no application.  It was further asserted that his Honour failed to give reasons or adequate reasons to support this finding.  
232.	The first thing to be said is that this ground lacks clarity.  No particulars were provided to indicate why his Honour should have refused to accept, or should have given little weight to, the family reports.  Nor does the ground make clear which of the many principles stated in Makita should have been applied.    
233.	The ground can only be understood by reference to the submissions advanced in support of it.  Before we set those out, we will provide some important background. We will then summarise those parts of the reports which have particular relevance.      
Background to preparation of family reports
234.	On 24 June 2008 the sister’s solicitor wrote to the Independent Children’s Lawyer, noting that she had not yet heard from the ICL.  She expressed concern that the:
time for commissioning any expert assessment is quickly passing.  In this regard, we confirm that our client is of Aboriginal descent and that she is the child’s half sister.  The Respondent Father is a Torres Strait Islander and resides in far North Queensland … The child’s and our client’s Mother was killed in a car accident in August 2007.  There are obvious cultural and other complex issues warranting an appropriate assessment.
235.	On 10 July 2008 the sister’s solicitor wrote to the ICL acknowledging receipt of a letter advising of proposed arrangements for the family report interviews.  The letter went on:
We further note that [the report writer] intends to travel to Torres Strait to interview the Father and his fiancé, but that there are presently no arrangements for her to attend at our client’s residence or an acceptable venue within the local area to include the child’s extended family in the interviews.  We respectfully suggest that not to do so, would be to limit and undermine the entire process and result in an unbalanced report.  This case is characterised by significant cultural issues and other complexities, which we raised for your information in previous correspondence dated 24 June 2008 and which appear not to have been noted.  Our client and the child identify as Aboriginal, and there is extensive family which forms part of our client and [O’s] life and whom the report writer should meet.
236.	On 15 July 2008 the sister’s solicitor wrote to the ICL noting that her client would attend at the report writer’s rooms for interview as required on 15 August 2008.  The letter continued by advising that O’s sister:
has expressed concern at the apparent lack of recognition of her and [O’s] culture and extended family and instructs that she would welcome [the report writer’s] attendance at her home or another venue, which can be arranged at the aforementioned meeting.
237.	The ICL responded by letter dated 17 July 2008, noting that he had received “recent correspondence… from both parties in relation to the family report interviews”.  His letter went on to say: 
In response to your queries, we have spoken with [the report writer] who advises that she will meet with the father one on one initially.  After her initial appointments with each parent [the report writer] has advised that she will have a clearer picture about who she requires to be involved in the family report process.
238.	By an undated memo (but which seems to have been copied to the parties with the letter of 17 July 2008) the ICL corresponded with the report writer confirming that the report writer would see the father and O at her rooms on 2 August 2008; the father on Thursday Island on 13 August 2008; and then the sister and O on 15 August 2008.
239.	The ICL’s instructions were brief and, in full, read as follows:
Each party proposes that the child live with them.  Please therefore prepare a report discussing where the child should live, who he should spend time with and how he should communicate with each party and his siblings.  Please further address the cultural dynamic encompassed in this file and make recommendations that support the best interests of the child in light of his cultural background.
The first report
240.	In preparing her first report, the report writer met the father and O in her rooms in Brisbane on 2 August 2008.  She then visited the Torres Strait on 12 and 13 August 2008.  Whilst she was there she spoke with the father and his fiancé, and “met various other family members”.  She also travelled around “the Island” (semble Thursday Island) and saw the local schools, hospital, cemetery and historical sites.  She also travelled by dinghy to nearby Prince of Wales Island (where the father usually lives when he is in the Torres Strait).  Upon her return to Brisbane, she interviewed O’s sister and her husband at her rooms and spoke with O again on that day.  She did not visit O’s sister at her home.
241.	The first report noted that the writer had read all of the documentation provided to her by the ICL, including the letter of instructions referred to above, the sister’s affidavit of March 2008, the father’s affidavit of April 2008 and the questionnaires completed by both parties.  (We pause to note that none of these documents, save for the letter of instructions, were in the Appeal Books.)
242.	The following are the more salient matters referred to in the first report, which was dated 9 September 2008 – the historical matters referred to were as conveyed to the report writer by the parties: 
•	O’s sister presented as a “personable young woman”.
•	The sister’s father came from New Zealand, although he was “brought up by Aboriginals”.  
•	The sister’s father had several children to five different women.
•	The sister’s maternal grandmother had different fathers for all her children.
•	The sister told the report writer that the “mother” of O’s father is “actually his older sister and [the woman] who he knew as his mother was actually his grandmother”.  (The sister did not give evidence concerning this although she did say in her trial affidavit that, upon returning from the Torres Strait, O had talked about getting “in trouble off my Nanna” and had said “my Nanna got very angry with me”.  O’s sister said O told her that “Nanna” was “[the father’s] Mum”.  She commented that she did not know who O was talking about, as she understood O’s paternal grandmother had passed away.)
•	The report writer recorded the sister’s assertion that O had not spent much time with the father and had never met his fiancé.
•	The report writer had spoken “briefly” with O’s brother-in-law who reported that he “loves having two boys” and “really enjoys being a father-figure to [O]”.
•	The relationship between O and his sister and her husband “was warm and familiar” and “they laughed and played together in a typical brother‑sister fashion”. 
•	It was clear that O loved the sister, her husband and their child.  Their interaction with O was “positive and encouraging”.
•	The father was supposed to call O every Wednesday; however, this does not occur consistently.
•	The sister does not receive any child support payments from O’s father.
•	The father “presents is [sic] a passionate man”.
•	Although O’s mother had agreed to facilitate contact after she and O’s father separated, this did not occur.  The father “made several attempts to spend time with his son and acknowledges that he went through a period of drinking to excess to deal with the sense of loss he felt about not seeing is [sic] son”.
•	The father reported that “in the interests of compassion”, he “made the decision to leave [O] with [the sister] for a brief period following [the mother’s] death.  He was shocked and disappointed when he learned that [the sister] had made an Application for [O] to live with her”.
•	The report writer set out the information we have already provided concerning her two day tour of the Torres Strait.  She did not record how long she spent with the father and his fiancé and members of the father’s family but she made specific note that she had recorded some 15 pages of notes pertaining to her conversations and interviews with the father.  
•	The report writer recorded that O’s father had “generously shared many stories about TI [Torres Strait Islander] traditions and customs”  She said that although she had not included this information in her report, “it has assisted in the opinions provided at the conclusion of the report”.  She went on to say that the father’s “passion around his heritage is palpable.  He takes his obligations as a role model to his nieces and nephews very seriously and regularly spends time with them teaching them cultural practices”.
•	Detail was provided in the report of the career achievements of the father’s many siblings and some of their spouses and offspring.  The report writer said she had given these details “in order to demonstrate the strong work and education ethic that pervades the [father’s] family system”. 
•	Earlier in the report, when the sister’s family was being discussed, references had been made to O’s mother’s addiction to drugs; the poor mothering provided by one of the sister’s aunts who had 13 children; the frequent movement of schools for O’s sister when she was a child; the involvement of the father of M and K with drugs; the fact that the sister’s husband reported that his own father had “pissed off” and had not “shown up” until he was 15 years of age; and that the sister’s husband’s “middle brother was murdered” and that he himself “sustained a stab wound during the fracas”.
•	The father’s fiancé presented as a “personable woman who was most welcoming and engaging”.
•	Although O was “not as boisterous with his father as he was with [O’s brother-in-law], the father‑son relationship was warm and comfortable.  [The father’s] interaction was appropriate, encouraging and loving.  There is an obvious natural bond between these two (they look very similar and share the same name) and it was clear that [O] enjoyed being with his father”.
•	O presented as a “shy child who was considerably more talkative when he was with his father or sister”.
•	O identified his sister, his sister’s husband, his father and himself “as people with the ‘smiling face’”.
•	O said he would like to visit his father on Thursday Island but did not want to live there because it is “too far away”.  The report writer commented, “given his age, he would not have an accurate perspective of distance (let alone flight times etc); his views have obviously been influenced by the perception and agenda of others”.  
243.	The report writer concluded her report under a heading, “Summary and Opinions”.  We set out this part of the report in full (our emphasis added):   
6.1	The circumstances that have prompted these proceedings and this report are most unfortunate.  [O’s] life thus far has been characterised by parental separation, familial dysfunction, a compromised relationship with his father, a mother whose alcohol and drug use undoubtedly adversely impacted upon her capacity to provide optimal parenting and questionable modelling around academic and employment achievements.  His mother died in tragic circumstances and he is now faced with adjusting to a life without her.  Critical features of this adjustment will involve the nurturing and consolidation of [O’s] self‑esteem and sense of identity.  Further, he will need increased support with any future emotional challenges.  My view is that this support, nurturance and identity formation should be provided by a functional and committed parent where possible.  In this matter, there are also cultural considerations that provide further weight to the importance of identity formation.
6.2	[O] is a socially shy boy who is all ready [sic] struggling at school.  He has little sense of his Torres Strait heritage and what knowledge he has of his father’s home has obviously been negatively influenced by his sister [the sister] (and perhaps his mother).  Although this is understandable given the animosity between [the father] and [the sister], she has little idea about the life [O] would lead if he lived with his father and [the father’s fiancé] and, apparently, even less idea around how beneficial a strong father-son relationship will be for [O].  Whilst I acknowledge the importance of sibling relationships, they generally do not supersede a parent-child relationship.  I acknowledge [the sister] and [O’s brother-in-law’s] commitment to caring for [O] and, if there were no alternative, I am confident that they would continue to invest considerable energy and effort into raising [O].  They would undoubtedly do the best they are capable of, not withstanding their age and necessary focus and energy on successfully raising their own child(ren).
6.3	I was privileged to spend considerable time with the father and his fiancé in their home and in their community.  Given the issues around relocation, it was important that I had a comprehensive understanding of both the people and the place.  [The father] typifies the concept of “a proud TI man”.  His passion for his culture, his people, his family and his community was obvious both in word and deed.  His desire to impart his knowledge, cultural wisdom and parenting values underpins his wish to have [O] live with him.  Further, he has strong values around education and employment.  As noted in the body of this report, [O’s] siblings are gainfully employed (as opposed to most of other male adults [O] knows – for example, the various fathers of [O’s] half siblings), and he readily acknowledges the importance of a sound education.  [The father’s fiancé] impresses as a mature, grounded, intelligent woman who is completely supportive of [the father’s] desire to parent his son.  My observation of them as parents to [T] [sic] was consistent with their assertion that they are competent and fit parents.  The final and most importance aspect of [O’s] life from here in involves guidance and leadership in his development toward manhood.  Give his life thus far, I have little doubt that this journey will have some difficulties.  He will require the advice and support of role models, mentors and family.  I believe the physical environment, community-based lifestyle and support he will receive with his father affords him the best opportunity to mature into a well-balanced, responsible, principled and educated man.  I recommend that [O] live with his father and spend time with his siblings during school holidays.
6.4	The most pressing challenge in this relocation concerns the negative messages [O] has received about Thursday Island and his father.  [The father] must take some responsibility for his son’s reluctance and [the sister’s] attitude.  There is no doubt that he made mistakes in his relationship with [O’s] mother (apportioning percentages of blame serve little purpose at this point) and he has not been actively involved in his son’s life thus far (again, the reasons for this are beside the point).  [The father] must now take responsibility for providing a corrective experience for his son.  He must demonstrate that he is a worthy father and that living in Torres Strait will not result in severed relationships with his siblings.  Given [O’s] possible refusal, or at least reluctance to relocate to his father’s, I would suggest he be told initially that he will be living up there until the end of the year ‘to see what it’s like’.  Once his relationship with his father and step‑mother has been consolidated, he will be better placed to accept the news that he is living with them on a permanent basis.  During this time, I encourage [the father] and [the father’s fiancé] to nurture the relationship between [O] and his siblings (letter writing, photos, phone calls).  This is an important part of linking [O’s] life to date with his life in the future.  Fortunately, [the father] and [the father’s fiancé] will have considerable family support in their parenting role.  [O] will undoubtedly experience the true meaning of the proverb:  “It takes a village to raise a child”.
The second report
244.	On 15 September 2008 the sister’s solicitor swore an affidavit in which she provided details of the correspondence which had passed between her and the ICL concerning the arrangements made for preparation of the first family report.  
245.	The affidavit concluded by	saying:
At no time subsequent to her interview with my client, her Husband and [O] did [the report writer] make any arrangements to conduct other interviews with my client’s extended and extensive family.  The Family Report dated 9th September 2008 makes no mention of the [sister’s] and the child’s significant maternal family and Aboriginal cultural heritage.  [The report writer] did not ever ask to which tribe my client’s and the subject child’s Mother belonged.
246.	The affidavit of the sister’s solicitor was read at trial, save for the paragraph we have just recited.  We have included that paragraph here only to provide the context for a hearing which took place on the day after the affidavit was sworn.  (It will also be important to note that the report writer read the affidavit before preparing her second report.)
247.	There was debate about alleged deficiencies in the first family report at the mention hearing before the Federal Magistrate on 16 September 2008.  Various options were canvassed.  The Federal Magistrate left it to the ICL and the parties to take such action as they saw fit arising out of the concerns expressed.  These included the possibility of an “addendum report”, a critique of the first report by someone (Stephen Ralph’s name was mentioned) or the commissioning of a new report by another report writer.  (Transcript, page 152.)    
248.	At some time after this mention hearing, the ICL commissioned a further report from the same report writer.  This report was dated 26 February 2009 and was only provided to the solicitors just before the trial.  O’s sister did not see it until the morning of the trial.  Indeed, the matter was stood down briefly whilst counsel completed taking her instructions on the report (Transcript, pages 1 and 5).
249.	The report writer noted in her second report that she had read the affidavit of the sister’s solicitor dated 16 September 2008.  She also recorded that she had read the father’s trial affidavit sworn 17 February 2009 and the affidavit of his wife of the same day.  No reference was made to the trial affidavit of the sister and the affidavits of her husband and one witness, notwithstanding that they had been filed long before the father’s affidavits.  It transpired from what we were told on the hearing of the appeal that the report writer had apparently not been provided with these, and hence had not read them.  
250.	The report writer recorded that for the purposes of this second report she had interviewed the father and his wife on Thursday Island on 16 January 2009.  She had also observed the father and O together on that day.  
251.	The report writer recorded that she had also attended “a family gathering of the maternal family” at the home of the sister and her husband on 22 February 2009.  She had spoken with the sister’s father on that day (at his request), as well as with “… elder, Auntie [S]”.  She also spoke with O again.  She noted that O’s “maternal siblings were in attendance at the family gathering and [she] had chatted with the younger children as they played together”.
252.	Amongst other matters noted in the second report were the following:  
•	There was supposed to have been regular contact between O and the father since the last report; however, the father explained that this was “difficult due to his employment that required he is at sea [sic] for extended periods of time”.  
•	The father also told the report writer that he and O were “both not good on the phone”.  It had taken “considerable encouragement” for O to ring his sister the previous evening (at that stage O was with him in the Torres Strait for the January 2009 visit).  
•	The difficulties in maintaining contact between father and son have been exacerbated by the “extreme costs of travel” between Brisbane and Thursday Island.
•	O’s visit to Thursday Island was “progressing well”.
•	The father and his wife were proposing to relocate to G “for a period of time”.
•	The report writer recorded that given the emphasis that the father places on his Torres Strait Islander heritage, she wondered how he “reconciled the relocation” to G “from a cultural perspective”; in response to which the father said, “the culture lives with us, it is within me … I will always come home and [O] will learn how to fish …”
253.	The next salient portion of the report is paragraph 2.5, which we set out in full:
My observations of [O] and [the father] interacting reveal a warm and obvious connection.  These was also a certain pride between them; when [O] was sitting on his father’s shoulders as they walked down the street, the smiles on each of their faces revealed a level of comfort and familiarity that (given their sparse direct contact to date) could only be explained via the notion of an “innate bond”.  [The father] noted that his son “couldn’t believe how much family he has here”.  This is certainly the view I formed as we walked down the main street of TI and [O] was introduced to several relatives (within the space of a few metres).  The relationship between [the husband’s wife] and [O] is polite and pleasant.  Given that they had only just met, this is what would be expected.  [The father] said that his son was extremely comfortable interacting with his paternal cousins and they willingly and happily played together.
254.	The report writer then turned to discuss matters pertaining to O’s sister.   She said:
•	There were “probably a dozen children and as many adults in attendance” when she visited the sister’s home, but she noted that “[O] was unable to tell me who some of these people were”.
•	The sister’s “position regarding [O] and his father appears to have softened a little since my last interview.  She supports [O’s] right to have a relationship with his father, however she contends that [the father] must demonstrate his capacity and willingness to be a decent father”.
•	“Although it is exceedingly obvious”, [O’s] sister had reiterated that [O] is close to his maternal family and this environment (ie, his current home) is where is [sic] most comfortable”.  
•	The report writer recorded that the sister’s father (who is Maori) told her he had found her first report to be “quite judgmental and that if I was inferring there was something wrong or immoral about Indigenous men having several children to several women, then I had ‘no idea’ about Aboriginal or Maori culture”. 
255.	The next portion of the report continued discussion of the conversation the report writer  had with the father of O’s sister.  We will repeat it in full:
[The sister’s father] has 12 children with five different women and he “loves them all” – this fact being used to negate any other factors associated with this fact.  I assured [him] that I did not wish to offend him in any way whatsoever.  His view is that [the father] should build a relationship with his son prior to [O] being removed from his current environment.  It is important to note that just because a certain behaviour is common or prevalent, this does not mean that it is acceptable or welcomed by all parties that are affected.  Certainly, the maternal family are strongly arguing that a child requires more than a declaration of love.
256.	We are somewhat unsure of the relationship between the penultimate sentence of the paragraph just cited and the balance of the material in the paragraph.  It seems to be a reference to the fact that although there were, in the present case, a number of examples of adults having multiple children by multiple partners, the report writer believed that some of those partners or some of those children may not be happy with that state of affairs.  
257.	The report writer then went on to record her conversation with “Auntie [S]”.  As this is arguably noteworthy more for what it does not say than what it does, we will recite it in full:
3.5	Aunty [S] has known [O’s] mother for many years.  She spoke of the warmth, love and support within the maternal family and said that [O’s] mother would not want have wanted [sic] all the children to be living separately.  She confirmed that [O’s sister] is a capable young mother and together with [O’s brother-in-law], they have provided a wonderful home for [O].
258.	The report writer then turned to discuss her impressions of O for the purposes of this second report.  We will also set out this part of her report in full:
4.1.	Although [O] is initially reserved when interacting with people he does not know well, he is quite animated and talkative with friends and family.  He was very relaxed and comfortable with his siblings and cousins at his home in [B].  There was nothing problematic about this environment and it is abundantly clear that [the sister and her husband] have provided [O] with everything they possibly can.  
4.2.	It was interesting, therefore, that in the face of every toy, game or activity that [O] could choose, whilst I was there, he insisted on putting on his Batman costume and explaining to me that his father had given it to him.  Whilst I would not want to over‑interpret this, given that his siblings and cousins were around at the time, I believe he was endeavouring to communicate (both to me, his sisters and whoever else was there) that he is connected (in a positive way) to his father.  He assured me that he had a good time on Thursday Island, he thought [the father’s wife] was “nice” and he could not remember the name of their baby.
259.	The second report concluded with the writer’s recommendations.  We have recited that portion of the report when summarising the Federal Magistrate’s reasons.  We will not repeat it here, although clearly it is of critical importance to this ground of appeal.  
260.	The importance of the recommendations of the report writer cannot be underestimated.  It is apparent from consideration of the Federal Magistrate’s reasons that the primary basis for his decision was his acceptance of these recommendations.  We note also that counsel for the Independent Children’s Lawyer announced at trial, before a word of oral evidence had been spoken, that the Independent Children’s Lawyer supported the recommendations of the report writer.  
The testimony of the report writer
261.	Before we set out the submissions relating to Ground 6, it is important we recite a number of passages of the transcript of the report writer’s evidence in which she sought to defend her methodology and recommendations relating to the “cultural” issues.  
262.	The first passage to which we will refer occurred during cross-examination of the report writer by the sister’s counsel (Transcript, pages 118 to 119).  […]
You were aware that [the sister] identified as Aboriginal at the time of your first report?---Not by anything she said.
Were you aware?---In the - from the written material, yes.
And she didn't raise that with you, you're saying?---No, and in fact I asked, as I do, several times, was there anything else that she wished to speak to me about and she did not raise the issue of her Aboriginality.
And it would be correct to say that you didn't specifically ask her about it either did you?---No, and I didn't specifically ask the father either.
You would accept the proposition wouldn't you, that Aboriginal and non Aboriginal cultures have different assumptions about appropriate and effective ways of obtaining information?---Yes.
That while direct questions are used in Aboriginal society to determine - such as where you're from, detailed or personal information is sought as part of a two-way exchange of information, where the questioner contributed information and waits for a response from the other participants, you're familiar with that process?---I know about different culture groups, is it varies from individual to individual, so while there are broader cultural rules, these may not necessarily apply to individuals within that culture, especially individuals that have had influence from other cultures.  So it's probably dangerous to have a standard set of rules that you hold as applying to every single person that belongs to a particular culture.
[The sister] gave evidence yesterday that you did not - tell me if this is correct - you did not ask her about her - you did not initiate and ask her specifically about her Aboriginality?---I asked her about her family.  Generally that would be an opening for her to speak about her Aboriginality.
It was a different question, [report writer], you did not specifically ask [the sister] about her Aboriginality did you?---I don't recall asking her to tell me about her Aboriginality.
Did you ask her - do you recall asking her to tell you about her dance lines, her clan, any of those issues?---No.
Now, you refer in your report to the Torres Strait Islander stories that assisted you in your opinions.  Did you ask [the sister] for any of her stories?---No.
Would it be correct to say in looking at your report, that you did not make any inquiries about the Wakka Wakka tribe either, at least in your first report?---That's correct.
You describe the father as a proud TI man, you recall that?---Yes.
And you've not assessed [the sister], her qualities as a Wakka Wakka woman?---No.
263.	The second passage is also from the cross-examination of the report writer by counsel for the sister:  (Transcript, page 127)
In your paragraph 5.3 of this report, you refer to the Aboriginal culture in the circumstances that there has been concern about the lack of attention the first time round.  Would that be a fair summary?---Yes.
For this report, you spoke to Aunty [S]?---Yes.
And what was the purpose of that?---I was asked to - - -
By whom?---I was asked, as a means of demonstrating that I had given whether I had spoken to people involved in [the sister’s] culture.
For this report, you didn't specifically raise [the sister’s] Aboriginality with her, did you?---Did I ask her about her Aboriginality for this report?
Yes?---No.
And the same would then apply to the Wakka Wakka clan, and those sorts of considerations?---No Aunty [S] actually volunteered information about her Aboriginality and again I requested - made the request of [the sister], if she had anything else at all that she wanted to tell me about.
264.	The final passage which we wish to recite involves cross-examination of the report writer by counsel for the father (Mr Selfridge), with interventions by the Federal Magistrate, and argument by counsel for the sister (Ms Brasch):  (Transcript, pages 132 to 135)
Yes.  And the last question or questions I'd like to put to you relate to this letter that was put to you, a series of letters under the hand of Ms O'Reilly, who is [the sister’s] solicitor.  You've had an opportunity to read those letters and you know the flavour of the letters, and then it transpires from that, it's suggested at least that you've not addressed these concerns, that you've never really given that your utmost consideration in the course of your reports. What would you say to that?---The Aboriginality - - -
Aboriginality aspect, what do you say about that?---I have never taken issue with [the sister’s] Aboriginality, and as I've quite clearly stated, one can't prioritise one as better or more important than the other.
FEDERAL MAGISTRATE:   Put it another way, sorry to interrupt, Mr Selfridge, in reaching your conclusions did you consider the importance of [O's] Aboriginal heritage?---Yes.
And in reaching your conclusions, did you consider the importance of [O's] Torres Strait heritage?---Yes.
Keep going, Mr Selfridge.
MR SELFRIDGE:  Thank you, your Honour.  Last thing, [report writer], there's obviously on anyone's interpretation of the exchange of correspondence and your first report to your second report, there's always an issue being identified in terms of you addressing or allegedly not addressing this indigenous issue, the Aboriginality issue.  Now, you were asked a series of questions as to whether or not the mother came forward of her volition and made it an issue with you and you said no, that never happened - - -
FEDERAL MAGISTRATE:   The applicant?---The applicant, the sister.
MR SELFRIDGE:  I'm sorry, I'm following certain barristers.  I'm easily led, your Honour.  And then you were asked a series of questions in relation to did you not think it was your position or in essence your role to raise that with the mother, and I think I'm correct in saying you pondered that issue in terms of whether or not you considered it perhaps and should raise that of your own volition.  What do you say about that?
MS BRASCH:   Your Honour, I'm not sure that's actually the evidence.
FEDERAL MAGISTRATE:   I'm sorry, I'm not sure what the question was.  Restate the question, Mr Selfridge.
MR SELFRIDGE:  Yes, certainly.  I'll just cut to the chase, your Honour, between the first and the second reports given it was a big issue, did the mother raise this issue with you in the second report, and say, "Look, you never addressed this Aboriginality in the first report and here's the things I wanted to tell you about it"?---I guess she indirectly addressed it with me by inviting the number of people that she invited, you know, that there were lots of people at her home, so - - -
Sorry, if I could just cut across you for one second, you're talking about [the sister’s father] and you're talking about Aunt [S], is that who you're - - -?---Yes, those people, and you know, the brother and the cousins and so forth, so indirectly, you know, I took that to be a demonstration on her part that - around the importance of her culture.  When I ask the question of people, and I ask it more than once, "Is there anything else that you want to tell me?" certainly that is an opportunity for people to share really critical and important factors that they believe I've not addressed adequately, or at all.  So she didn't volunteer that as a problem, however, I believed in the number of people that were at the home, certainly that was on her part you know, a great way of demonstrating to me the importance of the Aboriginal culture.
And you considered that at that time?---Yes.
Did the father of his own volition raise these issues with you?---Yes.
MS BRASCH:   Your Honour, I object to this question because otherwise you're going to need an anthropologist in effect, to give you expert evidence as to who volunteers, what is the nature, as [the report writer] herself said, different clans have different practices.  My client's evidence is she wasn't asked about this - - 
FEDERAL MAGISTRATE:   I accept what you're saying.  I don't think it's important whether one side or the other volunteered the information.  The more important aspect is that the report writer quite rightly is given the opportunity and did take the opportunity to visit each family where they live and see the interaction of [O] with the other family members, and I don't think it's particularly relevant or important as to what the individuals, that is the parties themselves, volunteered verbally, and I think that's an important point too, volunteering verbally.  [The report writer] has just said that the applicant by ensuring all the family members were there, was really volunteering to the report writer, and showing the report writer the importance that their family and she places on their Aboriginality.  So I think - - -
MR SELFRIDGE:  I accept that and - - -
FEDERAL MAGISTRATE:   - - - the issue has been examined, there's been much cross-examination on it, appropriately, and I think it has been explored, and I will make findings eventually about - after submissions, on the report, the analysing and so on.  So I think the objection is correct.
MR SELFRIDGE:  Yes, your Honour I won't need to pursue that and I have no further questions for the witness.
MS BRASCH:   Your Honour, a matter arises out of your question, in my submission to [the report writer].  Now, her first report is a substantive report.  The second report is an update.  The first one is substantive.  Now, she's given evidence about what inquiries she made or didn't make with respect to Aboriginality and that, and in many senses, the first report casts the dye, if you were, with that recommendation.
FEDERAL MAGISTRATE:   Yes, I did say in reaching your conclusion.  Perhaps what I should have said was, "in reaching your final conclusion".
MS BRASCH:   But the first report has you know, set the wheels in motion in a particular direction.  The question, in my submission, which arises on the first report from a question your Honour asked [the report writer], where do we find in the first report, the substantive report, or indeed an analysis in the second report, of a consideration of [O's] Aboriginality.  Now the document speaks for itself, the report, and the evidence that [the report writer] has given, but - - -
FEDERAL MAGISTRATE:   But you see, my question doesn't relate to - I didn't ask this witness whether she wrote down anywhere or made reference in writing in her reports to [O's] Torres Strait heritage or his Aboriginal heritage. I asked her whether she had considered the importance of the child's Aboriginal heritage and Torres Strait heritage in reaching her conclusions.
MS BRASCH:   Well, your Honour will hear submissions on matters of law in that case, on the role of the expert, and they must provide adequate reasons and clearly and transparently.  I'm content with that, thank you, your Honour.
The submissions in support of Ground 6
265.	As we have indicated, it is only by reference to the submissions of counsel for the sister that Ground 6 can be properly understood.  
266.	It was asserted first that while the report writer had paid extensive attention to the father’s Torres Strait Islander culture, she had not given “vaguely similar” attention to the sister’s Aboriginality.  
267.	It was also submitted by the sister’s counsel that the report writer had approached the assessment of the parties differently in that she had visited the father and his family in his home environment in the Torres Strait but had not, until too late, done the same with the sister.  Reliance was also placed on the fact that the report writer had read the trial affidavits of the father but not those of the sister.
268.	It was further asserted that the report writer had “glossed over” and failed to analyse the father’s lack of involvement with O since 2002.  In doing so, it was asserted that the report writer had inappropriately focussed on the “primacy of a parent”.
269.	The submission of counsel for the sister relating to the Makita part of this ground was not easy to follow.  Rather than try to paraphrase it, we will recite it in full:
As is clear from [paragraph 53 of the reasons], His Honour considered the sufficiency of time in observing the child with the parties as a marker of an opinion based upon sufficiency of research and inquiry directed accurately and relevantly to a particular issue.  Further, His Honour found that Makita “does not … impact upon my findings” (para 58), but again relates that to [the report writer’s] belated observance of the [sister], child and extended family.  No or inadequate reasons are addressed to the methodology and assumptions giving rise to the opinions expressed therein.  
270.	Finally it was submitted (clearly in relation to the Makita portion of the complaint) that:
His Honour saying that he would accept the expert’s own, unsurprising, view in response to a question from the Court that she had had adequate opportunity to observe the child with the [sister] and family … is not the same as (a) the expert making all necessary inquiries, and (b) the Court analysing the evidence, assumptions and methodologies of the totality of the expert’s opinions.
The submissions in opposition to Ground 6
271.	Counsel for the father submitted that the report writer had given appropriate consideration to the cultural issues, having said in her oral evidence that she had “never taken issue with [the sister’s] Aboriginality”, and having stated quite clearly that “one can’t prioritise one [culture] as better or more important than the other”.
272.	It was submitted that the primary motivation for the report writer having decided to visit the father on Thursday Island was because she had never been there previously, whereas she had been to the area in which the sister lived in North Brisbane.  It was also noted that the report writer had the opportunity to attend the sister’s home in preparing the second report and had also “engaged” with the sister’s extended family.
273.	It was also submitted on behalf of the father that the report writer had appropriately dealt with the limited involvement between the father and O, having specifically noted in her first report that the father had “not been actively involved in his son’s life thus far…”
274.	Once again, counsel for the Independent Children’s Lawyer concurred with the submissions of the father.  She submitted that his Honour had addressed the application of Makita at length in his reasons (paragraphs 52 to 59) and had found that the report writer had:
•	not over‑emphasised the importance of one culture over another;
•	had the opportunity to observe O in both homes;
•	taken into account in an appropriate way the importance of O’s attachments to the respective families;
•	taken into account in an appropriate way the importance of the respective cultures in those families;
•	been able to support her assertion that there was an abundance of evidence speaking of the importance of the parent‑child attachment etc;
•	not had her expert evidence concerning the importance of the parent‑child attachment rebutted.
Discussion of Ground 6
275.	It will be seen that the submissions relating to Ground 6 ranged over a variety of topics, all relating to perceived errors in the work of the report writer and the Federal Magistrate’s acceptance of her reports.  It will also be recalled that when dealing with other grounds of appeal we postponed consideration of issues we consider have relevance to this ground.   We propose to deal with the complaints under these four headings, although some are clearly linked:
•	Methodology;
•	Treatment of cultural issues;
•	The focus on the parent-child connection; 
•	The father’s absence from O’s life.
Complaints concerning methodology
276.	The complaints about methodology relate to what is asserted to be the differential treatment of the parties by the report writer.  
277.	The report writers who prepare the expert reports used in proceedings concerning children have a most important role.  They are bound to comply with the onerous duties imposed by the Family Law Rules 2004 (“the Rules”). 
278.	Rule 15.59(3) relevantly provides:
(3)	The expert witness has a duty to:
(a)	give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability;
	(b)	conduct the expert witness’s functions in a timely way;
	(c)	… 
(d)	consider all material facts, including those that may detract from the expert witness’s opinion;
	(e)	tell the court:
(i)	if a particular question or issue falls outside the expert witness’s expertise; and
(ii)	if the expert witness believes that the report prepared by the expert witness:
(A)	is based on incomplete research or inaccurate or incomplete information; or
(B)	is incomplete or may be inaccurate, for any reason; and
(f)	produce a written report that complies with rules 15.62 and 15.63.
279.	Rule 15.63, to which reference is made in the rule just recited, deals with the minimum requirements for an expert report.  It provides:
		An expert’s report must:
	(a)	state the reasons for the expert witness’s conclusions; 
(b)	include a statement about the methodology used in the production of the report; and
(c)	include the following in support of the expert witness’s conclusions:
	(i)	the expert witness’s qualifications;
(ii)	the literature or other material used in making the report;
(iii)	the relevant facts, matters and assumptions on which the opinions in the report are based;
(iv)	a statement about the facts in the report that are within the expert witness’s knowledge;
(v)	details about any tests, experiments, examinations or investigations relied on by the expert witness and, if they were carried out by another person, details of that person’s qualifications and experience;
(vi)	if there is a range of opinion on the matters dealt with in the report — a summary of the range of opinion and the basis for the expert witness’s opinion;
	(vii)	a summary of the conclusions reached; 
	(viii)	if necessary, a disclosure that:
(A)	a particular question or issue falls outside the expert witness’s expertise;
(B)	the report may be incomplete or inaccurate without some qualification and the details of any qualification; or
(C)	the expert witness’s opinion is not a concluded opinion because further research or data is required or because of any other reason.
280.	It is a fundamental tenet of our legal system that justice not only be done but be seen to have been done.  This does not mean that each party must be dealt with in precisely the same way; however, when one party is treated very differently to another there needs to be some logical explanation to avoid perceptions of unfairness. It is therefore not surprising that a primary focus of the Rules is to ensure that expert reports are “objective and unbiased” and “independent and impartial”.  It is for this reason that the Court commonly sees reports where much effort has been taken by the expert to ensure that each party can see they have been treated in a similar fashion, albeit the expert will commonly express an opinion that is more supportive of one party than the other.   
281.	In the present matter there were marked differences in the treatment of each party.  At the most basic level, in the course of preparing her first report, the report writer spent two days on the father’s “home ground”, exploring the surrounds, seeing the father in his familiar environment and meeting some of his family.  The impression gained is that the report writer also spent far longer with the father than she did with O’s sister (see her reference to the 15 pages of notes taken from interviews and conversations with the father).
282.	All of this had occurred prior to the report writer even meeting O’s sister.   When she did meet O’s sister it was in her rooms.  There was no home visit.  The only family member she met was O’s brother-in-law.  O was not even initially seen with his half-sisters, with whom he had lived all his life up until the death of his mother, and with whom he had ongoing daily contact at school, as well as during weekends and school holidays.
283.	The different treatment of the parties is all the more surprising in light of the correspondence from the sister’s solicitor to the ICL prior to the interview process commencing.  The question arises as to whether the report writer was even aware of the sister’s concerns as expressed in that correspondence.  Had she been aware, it is difficult to understand on what basis she could have completed her first report without having visited O’s home and seen him with more members of his family.
284.	In cross-examination, the report writer said she had not seen the letters from the sister’s solicitor dated 24 June 2008 and 15 July 2008 (Transcript, pages 116 and 117).  However, she appeared to accept that she had seen the letter of 10 July 2008 (Transcript, page 116).  Furthermore, the letter from the ICL of 17 July 2008 indicates that following receipt of “recent correspondence”, the ICL had spoken with the report writer about the way the report interviews would proceed.  The ICL’s letter referred to the report writer’s intentions in a way which suggests that the report writer must have been aware of the sister’s request for a home visit with her extended family.  
285.	It should be kept in mind that at the time the report writer prepared her first report, O had never been to the Torres Strait.  He had never met any member of his father’s family.  He had seen his father on only a handful of occasions.  His whole life had been spent living with the maternal relatives in Brisbane and the last period of his life had been spent in the home of the sister and her husband.    
286.	We accept that the report writer did seek to explain her methodology by saying, “I’d been to [B] before, and I hadn’t been to Thursday Island before” (Transcript, page 117).  We do not, however, see this as an adequate explanation for the differential treatment, especially in light of the sister’s request for a home visit.  The real issue in these proceedings was O’s attachment to people, not the geographical features of the area in which he was living or in which he might someday live.
287.	The impression we have gained from reading the first report is that the report writer had been (to use the word put to her in cross-examination) “taken” by all that she had observed in her first ever visit to the Torres Strait.  She was also, quite possibly for adequate reason, greatly impressed by O’s father and by what she had learned about the achievements of other members of his family, some of whom she had been able to meet over the two days she spent touring the Torres Strait.    
288.	Whilst O’s sister seems to have made a fairly favourable impression on the report writer at the solitary interview conducted for the first report, that interview occurred in circumstances where O’s sister would have appreciated that her concerns about the interview process had been totally disregarded.  It would be speculative to consider what impact this may have had on the dynamic of the meeting, and whether O’s sister may have made an even more favourable impression had she met the report writer in different circumstances.  
289.	Given that the report writer had not considered it was necessary to see O with his sister in his home environment for the purposes of the first report, it is noteworthy that she saw fit to return to the Torres Strait to observe O in the company of his father in his proposed new home environment for the purposes of the second report.  We accept that O was also seen in his sister’s home environment and with his sister’s extended family for the purposes of the second report; however, we do not consider that this remedied what we find to be a serious flaw in the methodology employed in preparing the first report.  
290.	The one visit by the report writer to O’s home occurred only about a week before the trial.  By this time, the report writer had made an unequivocal recommendation for O to live with his father.   Perhaps some of the adults present during this visit would have been aware that the stranger in their midst was the person who had apparently ignored an earlier request for the report writer to meet them, and had recommended that O be removed from his sister and the extended family in Brisbane.  It is not unreasonable to assume that some of those present might also have been troubled by the absence in the first report of any consideration of O’s Aboriginal heritage, in comparison with the effusive references to his Torres Strait Islander heritage (to which he had not had any exposure to that time).  
291.	There may well have been “tension in the air” during the visit to the sister’s home, given all that had preceded it.  Part of the tension can be gleaned by noting the terse exchange between the sister’s father and the report writer concerning the offence he had taken from the very few remarks directed to him in the first report. 
292.	We also consider there was an element of procedural unfairness in the way the report writer dealt with O’s comment to her that he did not want to live on Thursday Island because it was “too far away”.  This was an important matter.  It was important because it was one thing (from reading the first report, arguably the only thing) which led the report writer to conclude that O’s “views have obviously been influenced by the perception and agenda of others”.  
293.	O’s statement about Thursday Island being “too far away” may also have influenced the report writer in expressing the opinion in her first report that O:
has little sense of his Torres Strait heritage and what knowledge he has of his father’s home has obviously been negatively influenced by his sister [the sister] (and perhaps his mother).  Although this is understandable given the animosity between [the father] and [the sister], she has little idea about the life [O] would lead if he lived with his father and [the father’s fiancé] and, apparently, even less idea around how beneficial a strong father-son relationship will be for [O].  
294.	Notwithstanding that this was clearly an important issue, the report writer acknowledged in cross-examination that she did not speak with O’s sister about how O came to have the perception that Thursday Island was “too far away” (Transcript, page 111).  The affidavit of O’s brother-in-law was then put to the report writer (she not having previously seen it).  The affidavit explained how O came to have an understanding about just how far his father lived away from Brisbane.  Having heard that explanation, the report writer very properly conceded that it was a child-focussed way of answering a question that O had posed in the course of a long car journey (Transcript, page 112).     
295.	It is indeed unfortunate that the report writer had read only the trial affidavits filed on behalf of the father.  This was particularly so as the affidavit of O’s father, whilst in some respects repetitive, spoke eloquently on his behalf.  We nevertheless accept that the failure of the report writer to refer to the affidavits filed by O’s sister was not in any way an indication of lack of objectivity.  It appears from the oral submissions before us that the report writer was simply not provided with the trial affidavits of O’s sister.  It might have been expected that such an experienced report writer would have made some enquiry concerning the absence of trial material from one party; however, time was no doubt short given the looming trial; the report writer had previously seen the first affidavit filed by the sister; and it is likely she assumed the ICL would have provided her with all relevant material.   
Complaints concerning treatment of cultural issues
296.	We have already detailed the correspondence sent to the ICL concerning the importance O’s sister placed on the cultural issues and the (brief) instructions that the ICL gave to the report writer stressing these issues.   
297.	There can be no doubt that the report writer took her instructions seriously insofar as she dealt with the Torres Strait Islander culture.  She visited the Torres Strait.  She examined in some detail the father’s attachment to that culture.  She also considered his plans for O within that cultural context.  
298.	In these circumstances it is surprising that similar attention was not paid to cultural issues insofar as they related to O’s sister and her extended family.  In fact, the first report makes no mention at all of the fact that O comes from a family that identifies as Aboriginal (although there was one oblique reference to O’s maternal great-grandmother having been “raised in a mission”). 
299.	We are not privy to what may have been said by O’s sister in her original affidavit, which the report writer had available at the time of the preparation of the first report.  We therefore do not know whether she gave the same evidence in that affidavit about cultural issues as she did in her trial affidavit.  Even if she did not, the report writer had been instructed by the ICL to pay attention to the cultural issues involved.  Notwithstanding this, the report writer acknowledged that she did not raise at any time with O’s sister any issue associated with her background as an Aboriginal person.  
300.	It is no answer at all to say, as the report writer did in cross-examination, that O’s sister did not herself raise with the report writer issues associated with her Aboriginality.  The fact she did not raise issues associated with her heritage does not by any means imply that they were not important to her.  There could be many reasons why O’s sister did not raise the issue herself.  Some of these may be associated with an understanding of how people from different cultural backgrounds “volunteer’ information – as was firmly stressed by counsel for the sister in her submissions to the Federal Magistrate.
301.	In this regard it is important to observe that it was never put to O’s sister that her attachment to her culture was any less important to her than she had described in her affidavit.  The fact it was very important had been conveyed to the ICL by her solicitor at an early stage.  The Federal Magistrate also found that O “will be the envy of children around the world because of the importance that the people closest to him in his life have placed upon their cultural heritage”.  
302.	It is true, as the report writer said in her oral evidence, that she did not ever “dispute” the Aboriginality of O’s sister; however, that is not the point.  The issue that required consideration was the extent to which issues associated with his Aboriginal background would have an impact on O.  If the report writer felt they had no relevance, then we consider she needed to say so and provide at least some brief explanation.
303.	Even more surprisingly, the report writer adopted the same approach when preparing her second report, even though by that stage she had seen the affidavit of the sister’s solicitor in which complaint had been made about the Aboriginal cultural issue having been overlooked in the first report.  The report writer once again left it to O’s sister to raise the issue with her.  Because the sister made no mention of it, the report writer again left the matter unexplored.    
304.	Although the report writer said in her oral evidence that neither culture should be prioritised as being better or more important than the other, any fair reading of her two reports would lead to the conclusion that issues associated with O’s Torres Strait Islander background were treated as being of crucial importance and his Aboriginal background of no importance at all.
The importance of the biological connection between parents and children
305.	We turn now to the complaint concerning the emphasis placed by the report writer on the biological connection between children and their parents.  Our discussion of this issue will also deal with matters about which we postponed discussion when dealing with other grounds of appeal.  The first of these was the complaint in the first limb of Ground 7 in which it was asserted that the Federal Magistrate placed undue emphasis on the father’s status as a parent.  The second was the issue we touched on in Ground 8 concerning the possibility of his Honour having informed himself about matters relating to the relevance of the concepts of “parent-child attachment, parent-child identification and parent-child belonging”. 
306.	The fact that the evidence of the report writer relating to “parent-child attachment, parent-child identification and parent-child belonging” was of fundamental importance to the Federal Magistrate in coming to his decision can be seen at various points in his reasons.  This includes the underlining of paragraph 5.4 of the report writer’s second report and the statement in paragraph 59 of the reasons that:
… There really is no evidence before the Court to rebut that expert evidence of the reporter writer of the importance of a parent‑child attachment.  I accept the evidence of the report writer.  I accept her recommendations.  
307.	The Federal Magistrate’s acceptance of the evidence of the report writer on this point, and its importance to the outcome of the proceedings, can also be seen by his Honour’s acceptance in paragraph 60 of his reasons that it was the father who could “nurture [O’s] strongest sense of self that he can have”.
308.	In our view the Federal Magistrate’s decision must have turned on this evidence, given that it was accepted (or was not in issue) that:
•	the report writer found O was “securely attached” to his sister (Transcript page 128);
•	the sister had done an “exceptional” job in bringing up O (“exceptional” being the adjective used by counsel for the father in his closing submissions – Transcript, page 151);
•	the father had been largely absent from O’s life;
•	the father’s wife had only ever spent one period with O;
•	O had never met any of his paternal relatives until a few weeks before trial;
•	the plan to take O to the Torres Strait to live (which was the cornerstone of the father’s original case) had been abandoned at the last moment to be replaced by an arrangement where he would spend up to two years on the mainland before relocating O to the Islands.
309.	Put another way, apart from what would seem to be the undoubted personal qualities of the father and his family, and the fact that he had developed an excellent relationship with O, there did not seem to be a great deal favouring the father’s case save for the fact, as he said in his evidence, “[I am] here now and I am Dad” (Transcript, page 93).
310.	Before proceeding further, we will set out the only passage in the cross-examination relating to the emphasis placed by the report writer on the parent-child connection.  It is important that we do so, as it will indicate that the report writer was not given an opportunity to address one matter which we consider to be of importance (Transcript, pages 101 to 102).
MS BRASCH:   [The report writer], you would accept the proposition wouldn't you, or tell me if you do accept the proposition that being a parent of itself, the parenting name, does not necessarily mean that you stand possessed of the positive qualities that parenthood entails?---Not in and of itself, no.
And of itself, being a parent doesn't necessarily speak to a person's actual parental capacity?---No.
Parental responsibility?---No.
Facilitating relations with other important people in a child's life?---No.
There is more to being a parent than just the name, "parent"?---Yes.
Would you accept too that there's more to being a parent than the name and being a party to litigation, for example, if I told you the father gave evidence yesterday that "I'm here, I'm the father and I'm here" - as in the litigation, and you accept that he's the respondent in these proceedings don't you?---Yes.
There's more to parenting than just the name and being here as part of the proceedings?---Yes.   
Is it also the case that someone could be - and I'll use the father's terms for [the sister] - a mother figure, is how he described her yesterday, with respect to [O] ... - a mother figure.  So whilst you may not be "the parent" in the biological sense, you could still exhibit those kind of qualities of parenting that I just raised with you?---Yes.
311.	It will be noted that the report writer properly conceded that there are limitations on any general proposition that a biological parent should be preferred over a non-parent and acknowledged that a person who is not a parent can nevertheless provide the “kind of qualities of parenting” referred to in the cross-examination.  She did not, however, depart from the fundamental proposition contained in both her reports that ideally O should be living with a biological parent. 
312.	It will be recalled that in her first report the report writer said that whilst she acknowledged “the importance of sibling relationships, they generally do not supersede a parent‑child relationship”.  She also made clear her preference about the desirability of “a functional and committed parent” providing “support, nurturance and identity formation” for a child.  This latter proposition was followed by the statement that “[i]n this matter, there are also cultural considerations that provide further weight to the importance of identity formation”.  That statement was left unexplained, but we can safely assume that the “cultural considerations” being considered were those associated with the Torres Strait Islander culture, since the Aboriginal culture had not been examined.  
313.	No reference was made in the first report to any research to support any of the propositions/assumptions made by the report writer.  There was, however, in the second report a reference in a footnote to a presentation by Professor Guy Diamond at “Attachment Based Family Therapy Training” in Brisbane in January, 2009.  This appeared in the portion of the report in which the report writer said there was abundant evidence about “the importance of the parent-child attachment, parent-child identification and parent-child belonging” and where she stated the converse proposition that “children that are denied (for whatever reason) strong and loving parent-child relationship are at significantly greater risk of poor outcomes (across a range of issues) in adulthood”.  
314.	We are prepared to accept for the sake of argument that in a dispute involving a child of European/white Australian origin, it may be legitimate to assert such propositions as a matter of common understanding or experience.  We hasten to add, however, that such general propositions inevitably need to be considered carefully against the backdrop of the factual circumstances of each case.  
315.	We are unable to accept, however, that such propositions can be applied to indigenous families without any consideration at all of the cultural context.  In this regard we note there was no indication in the material that Professor Diamond had purported to suggest that his views had application to indigenous children.  
316.	We accept that no alternative research was put before the court, but it needs to be kept in mind that the reference to Professor Diamond’s opinion was included only in the second report, which was published on the eve of the trial.  It should also be kept in mind that O’s sister was legally aided, and we note that reference was made during the trial to the difficulties that had been experienced in obtaining an extension of funding to ensure expert evidence was placed before the court.  
317.	There was, however, evidence before the court which, in our view, should have caused the Federal Magistrate to have entertained serious reservations about the applicability of the research relied upon by the report writer.  
318.	First and foremost was the assertion of the sister, which was accepted by his Honour, that in the Wakka Wakka tradition children are raised by a sibling when a parent dies.  Whilst his Honour was entitled to accept that there must be some exceptions to that rule, it was nevertheless accepted as being the custom for the Wakka Wakka people.  Clearly then, the Wakka Wakka people do not accept there are inherent advantages associated with children being raised by a surviving parent rather than an older sibling.  (Their different concept of family might also be gleaned by reference to the fact that O’s sister referred to her grandmother’s cousin as her “Nanna” (Appeal Book 82 )) 
319.	In the absence of evidence it is speculative to consider why the Wakka Wakka people have, over countless generations, come to the view that children should be raised by a sibling when a parent dies.  Perhaps it is because of their practice of women having children to many partners.  A custom by which younger children are raised by the eldest sibling has the effect of keeping the sibling group together, rather than being dispersed amongst a variety of fathers.  Perhaps the custom also has something to do with the longevity of indigenous people.  Whatever may have been the position prior to the arrival of Europeans, we take notice of the fact that the average lifespan of indigenous people is now 17 years less than that of non-indigenous people (ABS statistics).  That significant difference between indigenous and non-indigenous people may well be seen as highly relevant in deciding whether it is best for a child to be placed with a sibling rather than an older surviving parent.
320.	There was another piece of evidence before his Honour which should have alerted him to the fact that the indigenous peoples of Australia do not subscribe to the benefits that European/white Australians see attaching to the modern nuclear family (which arguably may have as much to do with the efficient transfer of private property as it does to emotional benefits flowing to children).  The piece of evidence to which we refer was that given by O’s father in his trial affidavit where he said that in the Torres Strait Islands, “it is common for children to be raised by extended family members” (Appeal Book 131).  
321.	Whilst we accept that the Federal Magistrate was not referred to any writing on this topic, we consider that an Australian court exercising family law jurisdiction in the twenty first century must take judicial notice of the fact that there are marked differences between indigenous and non-indigenous people relating to the concept of family.  This is not to say that the practices and beliefs of indigenous people are uniform, since it is well known that they are not.  However, it cannot ever be safely assumed that research findings based on studies of European/white Australian children apply with equal force to indigenous children, even those who may have been raised in an urban setting.
322.	In our view, judicial officers dealing with cases involving an indigenous child should be expected to have a basic level of understanding of indigenous culture, at least to the extent that this can be found in what the Full Court in B and R (supra) called “readily accessible public information”.  It should not be expected that parties must approach the court on the basis that the presiding judicial officer comes to the case with a “blank canvas”.  
323.	It is also to be expected, in our view, that judicial officers will be familiar with the reported decisions of the Full Court dealing with indigenous children, as well as the policy considerations that have informed the significant changes made to the legislation pertaining to indigenous children.     
324.	Accordingly, judicial officers should be aware of (or remind themselves of) the matters set out in the extracts below from the article by Professor John Dewar (former Chair of the Family Law Council) entitled “Indigenous Children and Family Law” published in (1997) 19(2) Adelaide Law Review 217.  
In defining kinship, or its conceptions of relationship, Australian family law reflects its Anglo‑European heritage.  So, when it comes to constructing legal relationships around children, the law tends to assume a nuclear model: that is, that a child will have two parents for legal purposes, generally those who are its biological mother and father.  These are the people who automatically have legal status with respect to the child, a status that they never technically lose.  Thus, s61C of the Family Law Act 1975 (Cth) states that each parent of a child has parental responsibility for it, and that this responsibility survives any changes in the relationship between the parents.  “Parental responsibility” for the child includes all duties, powers, responsibilities and authority a parent might have in relation to a child.  The recent changes to the Family Law Act, which introduced the concept of shared and continuing parental responsibility between biological parents, have, if anything, served further to entrench this nuclear model in the law.  Thus, according to the principles underlying the new Part VII, contained in s60B, children have a right to know and be cared for by both their parents, but not by other significant figures in their lives; and parents (but not others) share duties and responsibilities for the care, welfare and development of their children, and should agree about their children’s future.
…
Other departures from the nuclear model can be found in the s68F(2) checklist, which requires a court to take account of a child’s relationships with persons other than its parents in making decisions about the child’s best interests.  Thus, in addition to paragraph (f) already discussed, paragraph (b) refers to “the names of the relationship of the child with each of the child’s parents and with other persons”; paragraph (c)ii) refers to “the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from … any other child, or other person, with whom he or she has been living”; and paragraph (e), which talks of “the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs”.  Finally, the statement of objects underlying Part VII talks of the child’s right of contact with parents and with others “significant to their care, welfare and development”.  However, each of these provisions has to be seen as a qualification of, or as an exception to, a basically nuclear, two‑parent model of parent‑child relations.
In general, then, the Family Law Act and the child support regime enshrine particular assumptions about relationships between children and parents.  While these may seem natural to many members of the dominant European culture, they become, in the context of Indigenous cultures, a serious barrier to the sort of increased flexibility to which the [Australian Law Reform Commission] refers.  In the case of support obligations in particular, the current law amounts to a clear breach of the principle of substantive equality, stated to be a cornerstone of multiculturalism, in the sense that the current law “unintentionally actS to disadvantage certain groups of Australians”.  Yet it is the supposed naturalness of these assumptions, and the powerful ideology of the nuclear family surrounding them, that renders them invisible to many.  From the point of view of the Indigenous community in particular, this nuclear model doesn’t fit at all well with Indigenous child-rearing structures or practices.
		…
Although practices vary between Indigenous groups, it seems generally true that conceptions of kinship and of good child‑raising practice are significantly different from the nuclear model.  Kinship relations are constructed in different ways from Western kinship systems, with the term “mother”, for example, often being used to cover a much wider group of people than the biological mother.  Kinship systems amongst many Indigenous groups are classificatory, which means that a much larger proportion of the social group, perhaps all members of the group, are accounted for in terms of kinship.  Western kinship systems, by contrast, consist of a much narrower range of relations.  As Bringing them Home says:  “By privileging parents and relegating the rights of other family members, the Australian family law system conflicts with Aboriginal child‑rearing values”.  In addition, child‑rearing practices often differ markedly:  whereas non‑Indigenous culture tends to emphasise permanence and stability as positives for children, Indigenous culture sees movement of children, either geographically or between or within kinship groups, as beneficial.  As Bringing them Home argues, “by privileging stability of residence, the system similarly entrenches a bias against Aboriginal practice of mobility of children amongst responsible adults and their households”.
325.	It will be noted that Professor Dewar made reference to the publication Bringing them home (1997).  As is well-known, this was the Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families.  It was a seminal document in informing many areas of public policy relevant to indigenous children.  The Report was critical of the way some cases involving indigenous children had been dealt with in the Family Court.  The Report (at page 486) contained the following observations and gave an illustration to explain why at least two indigenous groups prefer children to be raised by persons other than their biological parents:

The Family Court clearly has preferred the biological parent over a disputant extended family member in making custody (now residence) orders, although there is no presumption that that should be the case.  Nevertheless, the Court, at least in reported cases, has yet to prefer an Indigenous child’s grandmother, for example, over the child’s natural, non‑Indigenous father or mother.  Moreover, section 61C recognises only the parental responsibility of each of the biological parents and fails to recognise the child‑rearing obligations of others.
By privileging parents and relegating the rights of other family members, the Australian family law system conflicts with Aboriginal child‑rearing values.  In Aboriginal societies child‑rearing responsibilities are shared.
[In Arnhem Land, NT and Mornington Island, Qld] it was the responsibility for an Aunt or Uncle to grow up the child of their sister or brother.  It is a belief amongst Aboriginal people living in these areas that because an Aunty or an Uncle are not too emotionally involved with the child that they are able to make the best decisions for his education needs and the future role of the child in becoming a responsible member of the Aboriginal family group (Randall 1982 page 342).
326.	There are many other well-known publications which, in retrospect, can be seen as drivers leading to the amendment of the Act in 2006.  We will mention only one here since reference was made to its author in the proceedings below.  It is also a publication which counsel for O’s sister now submits his Honour should have taken into account in arriving at his decision.  It is of particular importance because of its focus on what the author argued were the Anglo‑European assumptions being made at the time by report writers when assessing indigenous families.   
327.	The article to which we refer is that of Mr Stephen Ralph, who at the time was the Director of Court Counselling in the Family Court of Australia in Darwin.  He was also responsible for overseeing the Family Court’s Indigenous Family Liaison program.  His article, entitled “The Best Interest of the Aboriginal Child in Family Law Proceedings”, was published in (1998) 12(2) Australian Journal of Family Law 140.  The following are the extracts which seem to us to have particular relevance to the present proceedings (footnotes omitted):   
Family assessment as employed generally by counsellors is stepped in the traditions of western psychology, with its emphasis upon the individual, and based upon modern Anglo‑European notions of social and family organisation.  The prominence of psychological theory and clinical practice based upon the study of small family groups and individual needs runs counter, however, to an effective understanding of the collectivist nature of Aboriginal family life.  Of particular concern is the possibility that counsellors who have limited knowledge or experience in working with Aboriginal families may produce reports that do not adequately address the issue of the child’s cultural identity and consequently the report may fail to attend to vital cultural issues affecting the child’s best interests.  This possible deficit in cross‑cultural understanding is one of the issues that the court’s cultural awareness programme seeks to address both through the appointment of Aboriginal Family Consultants and through training of counsellors in this area.
In contrast to the counsellor’s view Aboriginal people are likely to argue that children have the ability to effectively attach themselves to many carers in the course of their “growing up”.  In many indigenous cultures multiple, serial attachments are the norm and are not regarded as necessarily harmful to the child’s development and long‑term adjustment.
The fluid nature of Aboriginal child‑care arrangements and associated parenting practices was recently noted in an anthropologist’s report to the court regarding an Aboriginal child.  The report stated:
It is not at all unusual for Aboriginal children to move freely, even frequently (between kin and community).  These movements … are seen as important ways in which children acquire their understanding of the ways in which kinship and country relationships are lived out.  They are thus not a sign of disruption as they might be interpreted by non‑Aboriginal people but are an important factor in socialising children.
The Aboriginal perspective is based upon a collectivist view of family and social life that sees responsibility for the growing up of children invested in many people.  According to this view children come to trust in the capacity and commitment of a multitude of people to care for them and nurture them through childhood and into adulthood.  By this means children come to take their place in Aboriginal society where responsibilities and obligation to family and kin are deeply rooted and pervasive.
From this perspective the disruption caused to a child’s primary attachment, for example, is out‑weighed by the benefits arising from the child’s exposure to a broader and deeper network of family and kin to whom the child will eventually form strong attachments.  The implicit expectation is that children will grow up with maximum exposure to their heritage and take their place within Aboriginal society.  From the stand‑point of a traditional Aboriginal family living in a rural or remote community this change would ensure the family’s spiritual and ceremonial obligations to the country would be maintained.  In this setting cultural and family considerations are highly important in determining the child’s best interests.  For Aboriginal people a desirable outcome of such deliberations is the preservation and promotion of Aboriginal culture, particularly its transmission to the next generation.
Consideration of the child’s best interests from an Aboriginal perspective is likely to be influenced by the broader consideration of how Aboriginal culture and family life is to be promoted.  That is, individual and collective needs are interdependent and as such the needs of the individual child do not take precedence over the needs of the collective.  For Aboriginal people, whose culture has been ravaged by colonisation and dispossession, the struggle to preserve and maintain cultural integrity is on‑going and of the utmost importance.  In many instances this may mean that the interests of the individual or child may be a subordinate consideration to that of the best interest of the collective group.  This viewpoint does not sit comfortably though beside the strict adherence of the Family Law Act to the paramount consideration of the child’s best interests.
328.	Similar concerns to those expressed by Mr Ralph can be found in the decision in In re CP.  The Full Court concluded its judgment in that matter by noting (at 83,991) that the case had “highlighted difficulties in the applicability of the Family Law Act to cultural systems of family care which, like the Tiwi way, contemplate circumstances where the child will live and be cared for within a kin network”.  The Full Court went on to note that “for formal legal purposes, the many non-biological mothers of a Tiwi child are invisible to the law”.  
329.	We have also earlier made reference to the recommendations contained in the Pathways Report and the 2004 report of the Family Law Council, which were aimed at reducing the emphasis on the Anglo‑European nuclear family model in cases involving indigenous children.  
330.	The legislative response to these criticisms of the law and its application to indigenous families was the introduction of s 61F.  We will not repeat the provision again; however, the Explanatory Memorandum bears repetition in light of the criticisms to which we have referred:    
131. 	… The purpose of this provision is to ensure that the unique kinship obligations and child-rearing practices (such as the involvement of extended family) of Aboriginal and Torres Strait Islander culture are recognised by the court when making decisions about the parenting of an Aboriginal or Torres Strait Islander child. This provision is consistent with other amendments to facilitate greater involvement of extended family members in the lives of children.  
331.	In our view, this key provision was overlooked in the proceedings below.  The report writer’s recommendations, whilst paying regard to the potential benefit to O of immersion in the father’s Torres Strait Islander culture, not only disregarded the Aboriginal culture of the maternal family but also proceeded on assumptions about the parent-child relationship which had not been demonstrated as having any application to indigenous children.    
332.	We accept that the Federal Magistrate was not assisted at trial by any cross-examination specifically directed to the cultural issues we have discussed.  However, we have concluded that his Honour should have been aware of, and taken into account, the fact that the 2006 amendments were aimed at ensuring that cases involving indigenous children are no longer determined on the basis of automatic acceptance of “modern Anglo‑European notions of social and family organisation”.  In our view, it should have been apparent that the report writer’s recommendations were firmly based on such notions, the writer having failed to take into account in any way the fact that O is an Aboriginal child.  
333.	We do not consider that the recommendations of the report writer can be “saved” by reference to the following passage of transcript in which his Honour might be seen as endeavouring to “shore up” the opinion of the report writer (Transcript, page 132):  
FEDERAL MAGISTRATE:   Put it another way… in reaching your conclusions did you consider the importance of [O's] Aboriginal heritage?---Yes.
And in reaching your conclusions, did you consider the importance of [O's] Torres Strait heritage?---Yes.
334.	If the report writer did indeed consider the importance of O’s Aboriginal heritage in making her recommendations then she should have said so in her report.  We consider his Honour erred in being prepared to accept that the report writer had taken O’s Aboriginal heritage into account when she never mentioned it and never discussed it with O’s sister.  
335.	We also consider his Honour erred in seemingly equating the belated visit to O’s home (and the discussion with Auntie S during that visit) as amounting to some consideration of O’s Aboriginal heritage in circumstances where there is no indication of any discussion of cultural issues, other than the terse exchange of views between the report writer and the father of O’s sister.  
336.	When she was asked in cross-examination what had been the purpose of having spoken to Auntie S during the home visit, the report writer said, “I was asked to…as a means of demonstrating that I had given – whether I had spoken to people involved in [the sister’s] culture”  (Transcript, page 127).  If there was any discussion of cultural issues with Auntie S, who was described by the report writer as an “elder”, that part of the discussion did not find its way into the second report. 
Lack of attention to father’s absence from O’s life
337.	Although the Federal Magistrate did not make any findings about the precise extent of the involvement of O’s father in his life, we do not consider ultimately there was any controversy about the extent of their face-to-face contact.    
338.	On our review of the affidavits and the transcript we consider the following constituted the sum total of the father’s time with O up to the date of trial:  
•	O’s father lived with O until he was 7 months old;
•	there were then four brief visits between 2002 and 2007 (two of which involved one overnight stay in the home of O’s mother);
•	there was then the extended visit in the days following the death of O’s mother;
•	there were no further visits until two one day visits at the end of June 2008.  These were followed by an overnight visit of three or four days’ duration in early July 2008 and another two day visit at the beginning of August 2008.  
•	The final visit was the 12 day holiday in the Torres Strait in January 2009, just before the trial.  
339.	The weight to be given to the fact that O’s father had been largely absent from O’s life was clearly of considerable importance.  The assertion made on behalf of O’s sister is that this important issue was “glossed over” by the report writer and hence his Honour erred in accepting her recommendation.  
340.	As we have determined there should be a re-trial, we consider it inappropriate to express any views on the weight we consider should have been given to this factor.  That will be a matter for the judicial officer who has the conduct of the re-trial.  No doubt attention will also be paid to the impact on O not only of separation from his eldest sister and her husband and their children, but also the separation he will experience from his half-siblings and perhaps also from Mr G (the father of his younger half-sister C) who O’s sister said had “treated [O] like his own son” and who “[O] grew up acknowledging … as “Dad” (sister’s trial affidavit paragraph 11, AB 79).
Conclusion
341.	In the course of our discussion of the complex issues raised in this appeal we have found there is substance in some of the complaints agitated on behalf of O’s sister.  Many of these can be seen as arising from what we regard as deficiencies in the two expert reports upon which his Honour relied.
342.	We accept, as his Honour said, that whilst important, the issues associated with O’s dual indigenous heritage should not have totally subsumed the proceedings.  Nevertheless, we consider that insufficient regard was paid to the heritage of that part of O’s family with whom he had lived his entire life. 
343.	We recognise that his Honour said that he would have arrived at the same outcome even if he had put the two reports “to one side”.  However, the difficulty we have in placing any significance on that observation is that the balance of his Honour’s reasons does not provide adequate reasons to explain why it would be in O’s best interests for him to live with his father who, for whatever reason, had been a largely absent figure in his life in preference to his sister, who had been a constant in his life and to whom he was securely attached.
344.	We should also note that his Honour’s statement about arriving at the same decision without regard to the reports was accompanied by a reference to the objects of the legislation in s 60B.  In our view that statement can only be read as an allusion to the emphasis the objects place on the benefits to children of having a meaningful relationship with their parents.  As we have sought to explain, those objects, like every other provision of Part VII of the Act, must in cases involving indigenous children be read subject to the provisions of s 61F.  Regrettably, we have determined that s 61F was largely overlooked.    
345.	Given the merit we have found in the complaints advanced on behalf of O’s sister, we propose to allow the appeal.  We will order a re-trial in light of the agreement that this was the only practical option available to us.  Any issue concerning contact arrangements pending the re-trial will need to be determined by application to the Federal Magistrates Court, if necessary.
Costs
346.	We took costs submissions at the conclusion of the oral argument.  
347.	All counsel sought a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) if the appeal succeeded on a point of law.  The appeal has succeeded on points of law.  As we consider there should be no order for costs against any of the parties, we have determined that costs certificates should be provided to both parties and the Independent Children’s Lawyer for the appeal and for the rehearing.
I certify that the preceding three hundred and forty seven (347) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court   

Associate:  

Date:  		10 February 2010