Authors: John Marsden
I come now to the issue of the appellant’s own guardianship order. Having read the Protective Services Act of 2007, I agree with both counsel that nothing in the legislation touches upon this issue. Perhaps surprisingly, those who drafted the statute did not envisage such a situation as I have before me now. At first sight, however, it is sensible and reasonable to argue, as counsel for the Department has done, that one who is the subject of a guardianship order cannot herself be a guardian for others. The essence of such an order is that its subject is presumed to be incapable, for whatever reasons, of taking care of herself, and therefore cannot be expected to be capable of taking care of others.
At the same time the Court must recognise the realities of life. One such reality is that young people who are under guardianship orders for no other reason than that of age may, as they approach 18, be acknowledged as reaching a stage of life where it is appropriate to treat them in a more adult manner. It may, in such situations, well be appropriate to recognise their greater independence and maturity. The department can hardly be unaware that guardianship orders relating to young people who are 16 or 17 years old, and who are not disabled, often have little practical meaning, except where trust funds are concerned.
I am aware that the decision I make today may well be cited as a precedent should a similar action come before the courts at a future time, but I am satisfied that due to the maturity of the appellant in this case, her own guardianship order need be no impediment to her being granted the custody of this child, with all the responsibilities which that necessarily involves.
Having considered carefully then all the issues raised in this case, I propose to make an order which may excite some public surprise and debate, but I have sat in this courtroom for nearly three days and heard a great deal of evidence. Counsel for the appellant has argued in his usual forceful and cogent way that courts must not be constrained by inflexible and old-fashioned approaches to family groupings, and that the intervention of the war must of necessity result in judicial recognition of new configurations that would not have been contemplated before the war. I have already made some reference to this earlier. I am convinced that this is a case where an imaginative approach to the welfare of a young boy who has no living relatives bar an infant sister living in a foster family is justified.
After all, what is the purpose of the law? It is a means by which we can live together. Nothing more than that. The young and the old, the rich and the poor, people of different skin colours, male and female: the law enables all of us to experience our lives without yielding to primitive impulses of greed and fear and prejudice, and without being subject to the primitive impulses of others. It seeks to prevent problems, or, if they have already occurred, to resolve them with fairness to all. It recognises that the past can only be visited; it cannot be changed. But insofar as is possible the law seeks to restore us all to the positions we were in before change was unfairly inflicted on us.
This young lad cannot be restored to his parents but he has found a family relationship by himself which suits him, which is apparently doing him no harm, and may well, according to the evidence of many witnesses I have listened to in this courtroom, be doing him some good. He and his mentor are no burden on society, rather they are useful contributors to it. The household which they have established, although located in an area made dangerous by terrorist activity, appears to be a successful one and they have been living in it without disturbance to their neighbours. And I use the word ‘neighbours’ in an abstract sense as well as a literal one.
I therefore make the following findings and orders: that both parents of this child are deceased, that in the absence of other relatives or appropriate persons his care now becomes a matter for the State, that the State will be properly carrying out its responsibilities for him by appointing the present appellant as his foster mother, and that this order will remain in effect until the appellant turns twenty-one, at which time she may apply for it to become a permanent adoption if she so wishes and if it is found to be an appropriate course at that time. I further order that the appellant agree and submit to the following conditions: firstly, that the environment in which the child is raised be so far as possible a safe one, and that to this end she ceases to live upon the farm property from which the child was kidnapped, and that she moves into Wirrawee or Stratton, as the appellant has indicated that she intends to do. This must be done within ninety days of this order being given. Secondly, that officers from the Department of Social Responsibility visit the family regularly for the purpose of inspecting the living conditions in which the child is kept, and that such inspections shall be at least once weekly for the first six months, and providing that the result of these inspections is satisfactory that they then be reduced in frequency to once a fortnight for the following six months, and thereafter at the Department’s discretion but not less than once every two months until the appellant turns 21. Thirdly, that the appellant so far as is within her powers ensures a satisfactory school attendance record for the child, and that she notifies the Department by 10 am on each and every day that the child is not attending school, and as to the reasons for his absence. And finally, that the appellant notifies the Department immediately of any change in the circumstances of her and/or the child, which might materially affect their welfare. So given, Stratton Court of Protective Services, order to take effect immediately.
Now, Miss Linton, do you understand what this means?
Someone get her a glass of water.
We’ll wait until you are able to compose yourself, Ellie. Take your time.
All right, now do you understand what this order means?
(Linton) Yes I think so Your Honour.
Well, your counsel will explain it all to you I am sure. But I am giving you custody of Gavin so long as you move into town and allow the officers from the Department to come and visit you every week. That’s for the first six months, but after that if things are going well you’ll see less of them.
Thank you sir, I mean Your Honour, thank you very much.
I’m sure you will do a very good job, as long as you comply with the conditions of the Court that I have set out today. And I’m sure you’ll find the people from the Department very helpful and nice to work with. You need have no fear of them.
Yes Your Honour, thank you Your Honour.
Well, good luck to you both. I hope things go better for you from now on. Court is now adjourned.
Court adjourned at 2.44 pm.
I’
M OUTSIDE THE
gates of St Bede’s. There’s a big sign, shabby, saying ‘Holy Cross Children’s Services’ and a whole lot of other stuff. Someone has tried to scratch out ‘Holy’ and write ‘Very’ on the sign but they didn’t do much of a job: it just looks like a lot of random scratches.
Lee and Pang and Phillip and Paul and Intira – they wanted to come too. They figure if we’re going to be living together in Stratton, one big happy family, they should be here now, but we’ll meet them at Maccas later. This is between me and Gavin.
The driveway is white gravel. All the kids in this place have jobs, and one of Gavin’s is to rake the drive every afternoon, to keep it clean. It looks like he hasn’t done it in a fortnight at least.
On previous visits I’ve left the ute outside and walked up the drive and today I’m doing the same thing. But this time the driveway seems impossibly long. I can’t bear to put off the reunion any longer, so I break into a jog.
Approaching the administration building I can see the usual activity, just like on the other visits. An old man mowing the lawn; his name is Bert, I think. A couple of boys playing soccer, using a rubbish bin as a goal. A man and woman waiting on the veranda: they’re dressed in their best gear. They could be parents of one of the kids here, or applying for a job or something. Who knows?
I avoid the office, even though you’re meant to check in there. Panting a little from the run up the drive I look around for Gavin. A boy named Morris, about the only kid Gavin has been friendly with, sees me and waves. ‘He’s around the back of the kitchen I think,’ he calls.
I wave back in thanks and hurry to the kitchen block. Trust Gavin to stay near the food, even if he does complain about the quality. But he’s nowhere to be seen and I start zigzagging around the shrubs, looking for him.
No luck. It’s so frustrating. All I want to do is rush up to him and tell him the news and then march away, the two of us together, towards freedom and a new life. But it’s a bit hard to do that when there’s only one of me. I’m torn, not knowing whether to continue searching or go to the office like I should have done in the first place.
I do one last big sweep around the front of the cabins and then go up the rise towards the boundary fence. And there’s a little figure sitting on a swing, with his back to me, the swing just drifting backwards and forwards, as he drags his feet in the dirt. My eyes fill for a moment at the loneliness of him. But there is one person who can help him a little bit, maybe, with his loneliness, and so I run up the slope. No use calling his name, and I don’t want to startle him by rushing up behind him with no warning so I do a bit of a circuit that brings me into his circle of flight. He’s always had great peripheral vision. He lifts his head and looks at me, then cocks his head to one side. ‘What’s going on?’ I know he’s asking himself. ‘This is a strange time for her to be here.’
He gets up slowly. He looks vaguely pleased, a slow half-smile. He’ll never give himself away by leaping at me in delight. Gavin’s subtle. Most of the time I have to take it on faith that he loves me, because if I relied on getting day-to-day hugs and warm fuzzy comments, my life would feel like a very long drought.
I slow to a walk and keep coming towards him trying not to smile too much, trying to be cool, trying not to get too mushy and girly, knowing how much he hates that stuff. His grin gets a little wider. ‘We won?’ he asks. He’s figured it out already. My heart leaps at the word ‘we’. Such a simple word but it says everything.
‘I lost,’ I say.
But before the alarm that leaps into his eyes has established itself I add, ‘Yep, I’m a loser. I’m stuck with you permanently.’
He digests that, then finally says, ‘Hey, that makes you a big winner.’
Then he does something he’s never ever done. He throws himself onto me and gives me the biggest hug I’ve had in my whole damn life. From Gavin! Gavin! I mean, this is the kid who wouldn’t give me CPR if I were hauled out of the dam unconscious. He’d be worried about catching girl germs.
When the hug is over the two of us hurry back to his cottage. He can’t wait to get out of the place. I help him pack his stuff. It doesn’t take long because his houseparents have forced him to be fairly neat since he’s been here. I joke about how I’ll make him keep his things equally neat when we move in with Lee, but he’s had enough of jokes now, one was all he could cope with, he’s too fragile, so I remind myself not to make any more for a day or two.
At the office there’s a problem. They tell me they’ve had no paperwork yet. He’ll have to stay another night, maybe longer, until they get the clearance from the Department. Gavin looks utterly devastated. Ashen. I argue until the woman behind the counter gets cranky and I realise she’s become deaf herself, deaf to me. I start to turn away, defeated. And then I think it through. If I walk out of the place with him, then what are they going to do? They’re not going to chase us, because they know I’ve got the decision from the court, she’s already admitted that, so they’d hardly send the cops to track us down. It mightn’t impress the department too much, when they hear about it – I’ll be off to a bad start with them – but why should I wait, why should Gavin be put through any more suffering, just because they aren’t better organised? So I nerve myself and write down my address and push it across the counter to the woman.
‘I’m actually taking him away now,’ I say.
She looks totally shocked and says, ‘You’ll be in trouble if you try that.’
‘No, you will be,’ I say, ‘because I’ve got the legal right to custody of him, and if you try to stop me you’ll be breaching the court order.’
While she stands there trying to think of what to do I say to Gavin, ‘Come on, let’s go, we’re out of here.’
And away we go. She doesn’t say anything, but she heads for a phone. I grin at Gavin. ‘Don’t run, or they’ll chase us. We’ll just walk quickly down the drive. As soon as we’re out of sight we’ll run.’
He grins back. He’s loving this. There’s life in his face again. It occurs to me that this is the best thing I could have done, it’s actually a great way to leave, because it’s giving Gavin the message that we haven’t been defeated, we are up for it, we’re young, we’re in control of our lives again, we can charge into the future with confidence. When we round the corner of the driveway I take his hand and we run down to the gate together.