Beck & Anor & Whitby & Anor

[2012] FamCA 129

FAMILY COURT OF AUSTRALIA

BECK AND ANOR &  WHITBY AND ANOR [2012] FamCA 129

FAMILY LAW – CHILDREN – where orders were sought for parental responsibility and about where a child should live to partially recognise a traditional Torres Strait Islander child rearing practice (Kupai Omasker) – how such an application should be dealt with within the current legislative framework in the Family Law Act – inability to correct birth certificate – where it is in the best interests of the child to make the orders sought

Family Law Act 1975 (Cth) Sections 4; 60B(1)(b); 60B(1)(c); 60B(2)(b); 60B(2)(e); 60CC; 60CC(2); 60CC(3); 60CC(3)(c); 60CC(3)(e); 60CC(3)(h); 60CC(3)(m); 60CC(5); 60CC(6); 61F; 64B(2)(a); 64B(2)(b); 64B(2)(c); 64C; 65CA; 65D; 65G; 69C(2)(d)

APPLICANTS: Mr Beck and Mrs Beck

RESPONDENTS: Mr Whitby and Ms Marlow

FILE NUMBER: CSC 519 of 2011

DATE DELIVERED: 2 March 2012

PLACE DELIVERED: Thursday Island

PLACE HEARD: Thursday Island

JUDGMENT OF: Watts J

HEARING DATE: 2 March 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigants in person

SOLICITOR FOR THE RESPONDENT: Litigants in person

Orders

ORDERS AND NOTATIONS:

1. The applicants have equal shared parental responsibility for A (“the child”).

2. The child live with the applicants.

3. There be no contact between the child and Respondents except as permitted by the applicants or either of them.

4. I note that it is the intention that the child will see the respondents at family or social functions but there is no expectation or intention that the child will spend time with the respondents or her biological sibling.

5. I note also that it is intended that the child will refer to the respondents as uncle and aunty and to her biological sibling as cousin. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beck and Anor & Whitby and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT THURSDAY ISLAND

FILE NUMBER: CSC 519 of 2011

Mr Beck and Mrs Beck  

Applicants

And

Mr Whitby and Ms Marlow

Respondents

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. There is a traditional practice in the Torres Strait Islands known as “Kupai Omasker” which involves the permanent giving of a child from one family to another by mutual consent. The parties in this matter have agreed on the orders that are sought. In this case Mr and Mrs Beck are “the receiving parents” and Mr Whitby and Ms Marlow are the biological parents of the child and “the giving parents”. As children, both Mr Whitby and Ms Marlow were themselves the subject of traditional Torres Strait Islander child rearing practices.  

2. Mrs Beck held the child in her arms during the hearing.  What is proposed is that the child will live with Mr and Mrs Beck and that they will have equal shared parental responsibility for her and unless there is an agreement by the receiving parents, the child is not to have contact with her biological parents.  Such contact would normally only happen at social and family functions but there is no expectation that the child will spend time with her biological parents or with her biological sibling, who was born in January 2010. It is also agreed that the child will refer to Mr Whitby and Ms Marlow as uncle and aunty and to her biological sibling as cousin.

THE CURRENT LAW

1. I exercise jurisdiction within the current framework of the Family Law Act. Mr and Mrs Beck make their application to the court, not as the child’s parents, but as persons who are concerned with the child’s care, welfare and development and are consequently entitled to institute proceedings (see s 69C(2)(d) and s 64C Family Law Act).

2. In the circumstances of this case, s 65D FLA gives me power to make parenting orders in relation to the child as I think proper.  Parenting orders include who should have parental responsibility for the child (see s 64B(2)(c) FLA) and with whom she should live (see s 64B(2)(a) FLA) and what time she should spend with other people (see s 64B(2)(b) FLA).

3. I am specifically asked to make an order for parental responsibility in favour of Mr and Mrs Beck. Parental responsibility means all the duties, powers, responsibilities and authority which by law parents have in relation to children (see s 4 FLA).

4. I have regard to the objects of Part VII Family Law Act, particularly s 60B(1)(b) and (c) and the principles in s 60B(2)(b) and (e) FLA.

5. Above all, when deciding to make a particular parenting order, s 60CA FLA requires me to regard what is in the child’s best interests as a paramount consideration. Although I am not required to have regard to the matters in s 60CC(2) and (3) FLA because this application is by consent (see s 60CC(5) FLA), I shall have regard to them so far as they are relevant to determining what is in the child’s best interests. Some of those matters, for example, s 60CC(3)(c) and (e) FLA specifically refer to parents but similar considerations can be taken into account in cases where orders are sought by persons in the position of the applications (see s 60CC(3)(m) FLA).

6. In the context of this case, the traditional Torres Strait Island child rearing practices are a weighty matter.

7. Section 61F FLA is in the following terms:

   Application to Aboriginal or Torres Strait Islander children

   In:

   (a)  applying this Part 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.

8. I also have particular regard to s 60B(2)(e), s 60B(3), S 60CC(3)(h) and s 60CC(6) FLA.

9. Before I make the orders sought, s 65G FLA requires that the parties attend a conference with a family consultant to discuss the matters to be determined by the proposed orders.

10. I have the benefit of a family report dated 22 February 2012 by the family report writer, who is present in court via video link from Cairns today. All interviews conducted for the purpose of the family report were done in the presence of an Indigenous Family Liaison Officer, who has experience dealing with Kupai Omasker matters within the Torres Strait and Northern Peninsula Area (NPA) and who is present in court today.

THE FAMILY HISTORY OF THE PARTIES

Mr and Mrs Beck (the applicants)

1. Mr and Mrs Beck in this matter identified as both Torres Strait Islander and Aboriginal.

2. Mrs Beck said she grew up at J on Cape York Peninsula and her family had connections with Y community in Far North Queensland through her mother and B and D Islands through her father.

3. Mr Beck grew up on T Island and his family had connections to U Island through his maternal grandfather and J through his maternal grandmother.

Mr Whitby and Ms Marlow (the Respondents)

1. Mr Whitby reported his mother is Aboriginal and his biological father is Caucasian. He explained he had been traditionally adopted as a child and his adoptive father, who raised him, is a Torres Strait Islander. Mr Whitby grew up at G on Cape York Peninsula.

2. Ms Marlow identified as a Torres Strait Islander with connections to B, U and M Islands. She said she had been traditionally adopted as a child and she grew up at J.

The relationship between the Applicants and Respondents

1. Mrs Beck and Ms Marlow have known one another since they were children and they described their relationship as akin to sisters.

2. Mrs Beck regards Mr Whitby as her second or third cousin and she said she got to know him through Ms Marlow.

3. Mr Beck has gotten to know Mr Whitby and Ms Marlow via his relationship with his wife.

4. Mr Beck is residing on T Island with his parents whilst he completes an apprenticeship with a company operating on T Island.

5. Mrs Beck is living with the child in a two bedroom unit at S (i.e. on the Northern Peninsula Area). Mrs Beck is on maternity leave and plans to return to work in approximately April 2012.

6. Mr and Mrs Beck take turns to travel between S and T Island to spend time together as a family.

7. Mrs Beck’s cousin (who she refers to as her “cousin sister”), ‘E’ (14 years of age), also stays with her on occasion. Mrs Beck said she had helped to care for E since she was eight years of age.  

8. Mr Whitby and Ms Marlow live at G however Ms Marlow stays with her family at J during the week so she is closer to her workplace. She is employed full time.

DISCUSSION

1. Mr and Mrs Beck are seeking orders to grant them parental responsibility for the child and they wish for her to continue to reside with them. 

2. Mr Whitby and Ms Marlow agreed with Mr and Mrs Beck proposals. Ms Marlow said she understood the court orders being sought by Mr and Mrs Beck meant legally the child would be theirs and the child would share their (i.e. the Applicant’s) surname.

3. Ms Marlow indicated she understood the orders being sought by Mr and Mrs Beck would mean Mr and Mrs Beck would be responsible for making decisions for the child. Ms Marlow said she would undertake the role of an aunt to the child.

4. Ms Marlow thought Mr and Mrs Beck were seeking a legal order to formalize the current arrangement so they did not have to worry about her asking for the return of the child. She thought Mr and Mrs Beck would be good parents and she said she felt ‘really happy’ about them obtaining legal paperwork from the court in relation to the child.

5. Mr Whitby said he believed Mr and Mrs Beck should have a ‘legal paper’ from the Court so they had the right to speak for the child. He was aware the Applicant’s were asking for the child to live with them and to make decisions for her. When asked what this would mean for him, Mr Whitby stated ‘we will be out of (the) picture, (it is) up to Mr and Mrs Beck’. He then stated he was ‘okay’ with this and he would be an uncle to the child.

6. The parties were asked about a clause in their proposed orders that Mr Whitby and Ms Marlow spend time with the child as agreed between the parties. This was clarified to mean the child will see Mr Whitby and Ms Marlow at family or social functions and she will know them as her uncle and aunt. Mr Whitby and Ms Marlow did not report having any expectations or intentions of making the child spend time with them or her biological sibling. 

7. Mrs Beck is the middle child in a sibship of three. She reported no history of any domestic violence, illegal substance use, child abuse or traumatic events during her childhood or adolescence.

8. Mrs Beck is employed as a manager. When she returns to work from maternity leave in 2012 she plans to work from 8am-5pm weekdays.

9. Mr and Mrs Beck reportedly knew each other for 18 months prior to being married in 2007 and Mrs Beck described their relationship as good. She noted she and her husband could have differences of opinion and argue but she denied there was any domestic violence. Mrs Beck stated there were no domestic violence orders (DVOs) between the parties.

10. Mrs Beck reported no mental health difficulties or illness, no illegal substance use and no involvement with any child protection authorities or police. She did not report having experienced any problems with alcohol and said she had ceased drinking in 2010. 

11. Mr Beck was eldest child in a sibship of three. He reported no history of domestic violence, child abuse, traumatic events, illegal drug use or alcohol problems during his childhood and adolescence.

12. Mr Beck described his relationship with his wife as ‘good’ and he said whilst they may have differences of opinion there was no domestic violence between them.

13. Mr Beck has previously worked as a processor and he has obtained a trade apprenticeship. He is currently working fulltime to complete a second trade apprenticeship with a company operating on T Island.

14. Mr Beck said his only involvement with police was a previous speeding fine. He reported no involvement with any child protection organisations, no illegal drug use and no mental health difficulties or illness. Mr Beck said he drinks alcohol socially (e.g. perhaps once a month) at family gatherings but he does not drink to excess (i.e. to the point he is over the legal limit to drive). 

15. Mr Beck is living with his parents on T Island whilst he awaits the completion of renovations on a house, in which he will reside, on the island.

16. Ms Marlow reported she was the youngest child in a sibship of two. She was traditionally adopted and has not had any contact with her biological mother. Her biological mother was her father’s cousin (who Ms Marlow referred to as her “father’s cousin sister”). 

17. Ms Marlow stated her parents separated when she was two years of age and she was raised by her mother. Ms Marlow reported no history of any domestic violence, illegal substance use, child abuse or traumatic events during either her childhood or adolescence. 

18. Ms Marlow has been in a relationship with Mr Whitby for three years and they have a two year old son. Ms Marlow described her relationship with Mr Whitby as ‘good’ and she said there was no domestic violence between them.

19. Ms Marlow reported no mental health difficulties or illness, no illegal substance use and no involvement with police. 

20. Mr Whitby was traditionally adopted and grew up with his maternal grandparents who he regards as his parents. He did not report any history of domestic violence, illegal substance use, child abuse or traumatic events during his childhood or adolescence. Mr Whitby said his father used to drink and then sleep outside however he became ill and he has now ceased his drinking.

21. Mr Whitby stated he had been involved with police on two occasions - once for drink driving and once for stealing a cow. The cow was used during a gathering associated with a funeral.

22. Mr Whitby reported he and Ms Marlow have had some verbal disagreements but there had been no physical arguments and no DVOs. 

23. Mr Whitby reported Ms Marlow disliked him when he drank alcohol and as a consequence he now only drinks socially and he does not drink and drive.

HOW THE GIVING AND RECEIVING PARENTS MADE THE ARRANGEMENT

The applicants

1. Ms Marlow said Mrs Beck had told her approximately two years ago that she and her husband had been trying unsuccessfully to have a child. Ms Marlow said she asked Mrs Beck ‘if I am pregnant would you want (the) baby?” and she responded yes.   

2. Following this conversation, it seems Mr and Mrs Beck discovered Mr Beck had a low sperm count which affected their fertility and Ms Marlow became aware of their plight.

3. In November 2010 Ms Marlow discovered she was pregnant and she and Mr Whitby reportedly approached Mrs Beck at her workplace offering her and her husband the baby. Mrs Beck, whilst excitedly enthusiastic, told Mr Whitby and Ms Marlow she needed to speak to her husband before she could accept their offer.

4. Ms Marlow indicated to Mrs Beck she and Mr Whitby had a son aged 2 years at the time she discovered she was pregnant with the child. She stated at the time her elder child was not yet walking and she and Mr Whitby were not ready to have another child. Ms Marlow indicated she and Mr Whitby spoke to one another and confirmed their decision to offer their unborn child to Mr & Mrs Beck. 

5. Mr and Mrs Beck then discussed the offer made to them by Mr Whitby and Ms Marlow and they formulated five terms which had to be mutually agreed upon by all parties, in order for them to accept the child. These terms included ensuring the offer of the child was a mutual agreement between Mr Whitby and Ms Marlow; ensuring Ms Marlow did not drink, smoke or fly during her pregnancy; informing both their respective families about the intentions for the baby and agreeing if the child was given to Mr and Mrs Beck it could not be taken back. 

6. Mr and Mrs Beck indicated they gave Mr Whitby and Ms Marlow additional time of approximately four months to consider their offer in light of the terms they had outlined. Mr Beck said Mr Whitby and Ms Marlow told his wife they had agreed to the terms which Mr and Mrs Beck outlined, approximately four to five months before the child was born.

7. Mr Whitby’s parents did not agree the child should be given to Mr and Mrs Beck however once he explained the basis for their decision it was accepted.  Ms Marlow said her own mother was somewhat upset that they were giving the child to Mr and Mrs Beck however she understood Ms Marlow was young and she would have had to care for two children close in age.  

8. Mr Whitby said his family knew about the agreement and they found it acceptable because they knew Mr and Mrs Beck would be good parents. He acknowledged initially there was some issues with Ms Marlow’s family however he indicated they had now been resolved.

9. During the pregnancy, Ms Marlow kept telling her that the baby was hers. Mrs Beck said Ms Marlow stopped Mr Whitby from rubbing her stomach and talking to the baby telling him it belonged to Mr and Mrs Beck. Mr Whitby said whilst he talked to and felt Ms Marlow’s stomach when she was pregnant with their first child, he did not do this when she was pregnant with the child because the child was to be given to Mr and Mrs Beck.

10. Mrs Beck said she attended the baby’s scans with Ms Marlow and at no time did Mr Whitby and Ms Marlow indicate to her that they had changed their mind about offering the child to her and her husband.

11. The child was born a month early on T Island and according to Mrs Beck, the hospital was aware of the arrangement between Mr and Mrs Beck and Respondents. Mrs Beck said she was present just after the child’s birth. Ms Marlow said she did not want to kiss or carry the child, saying she was not her mother. The child was not breast fed by Ms Marlow or held by Mr Whitby and Ms Marlow. This confirmed in the minds of Mr and Mrs Beck, the offer of the child from Mr Beck and Ms Marlow was genuine.  

12. The child was discharged home with Mr and Mrs Beck and Ms Marlow gave her the paperwork for the child’s birth certificate and agreed she could have the last name ‘’Beck’ as she belonged to Mr and Mrs Beck. The child’s birth certificate records the child as having the Mr and Mrs Beck’s surname.

13. Mr and Mrs Beck were required to fulfil their parental responsibilities very early in the child’s life as three to four days after her birth the child nearly died. Mrs Beck accompanied the child as she was transported to Cairns for medical treatment and they were later joined by Mr Beck. Mrs Beck said she was told the child had meningitis and they would need to observe her over time as it was unknown at that time if she had suffered any brain damage. Ms Marlow recalled Mrs Beck had telephoned her in tears. Mrs Beck noted the child was now developing well. 

14. Mr Whitby reported he was not forced to give the child to Mr and Mrs Beck and there was no money or bargaining that took place in exchange for the child. He did not report any relationship difficulties between him and Ms Marlow at the time the child was offered to Mr and Mrs Beck and in hindsight he noted that caring for two babies so close in age would have been hard for Mr Whitby and Ms Marlow.

OTHER ASSOCIATED PERSONS

1. The family report writer spoke to a number of persons associated with Mr and Mrs Beck and respondents in relation to their understanding of the arrangement that had been entered into. I have information from Mrs Beck’s mother (who was also in court today); Mrs Beck’s father; Mr Beck’s mother and a Mr T, a man who had grown up with Mr Whitby from the time he was 3 years of age. All confirm the understanding of the arrangement as I have previously discussed it.

THE PERMANENCY OF THE AGREEMENT

1. Mr Whitby indicated the agreement for the child to be given to Mr and Mrs Beck was a permanent one. When asked if there was anything which may prompt him to ask for the return of the child, Mr Whitby initially replied no and then noted he had an expectation that the child would be safe and cared for and if she was dirty, not fed and in old clothes he would consider asking for her return.

1. When Ms Marlow was asked if the child had been given to Mr and Mrs Beck permanently she answered ‘Yes. She is their daughter now, I’m just an aunty’. She confirmed she had told herself throughout her pregnancy that the child was Mrs Beck’s. Ms Marlow clarified the child was given to both the Applicant’s as a couple.

2. Ms Marlow could not identify any reason for which she would ask for the return of the child except if both Mr and Mrs Beck got sick or if the child was mistreated. She stated she gave the child to Mr and Mrs Beck knowing she would grow up in a safe environment.

3. There was nothing identified by either of Mr and Mrs Beck which would make them consider giving the child back to Mr Whitby and Ms Marlow.

CONCLUSION

1. Mr and Mrs Beck have a desire for the child to grow up involved in cultural activities and family events (e.g. tomb stone openings, weddings, funerals). They also want the child to receive a good education. 

2. Each of Mr and Mrs Beck wanted the child to identify as a Torres Strait Islander with an understanding that her family comes from the Torres Strait and Northern Peninsula Areas (NPA) as well as having knowledge of her father’s Japanese heritage. 

3. Mr and Mrs Beck reported the child had been accepted and included by their family members and they had the support of their extended family if they required assistance for the child.

4. Mr and Mrs Beck believed in putting in place boundaries to teach the child good manners and behaviour. Mrs Beck said she believed in smacking but not to excess (i.e. just a tap) as she felt it was important to be firm and consistent and to have an established routine for the child. 

5. Mr Whitby and Ms Marlow expected Mr and Mrs Beck to care for the child, feed her, wash her, ensure she is immunised, send her to school, discipline her and teach her about her culture (e.g. Torres Strait Island dancing, singing, attendance at tomb stone openings and respecting her elders).

6. Mr and Mrs Beck planned on telling the child she was traditionally adopted together. They envisioned this might occur around the time the child asks about how ‘babies are made’. In any case, Mr and Mrs Beck said they wanted to tell the child about her adoption in a positive way and to explain to her she was given to them by Mr Whitby and Ms Marlow out of love and respect. Mrs Beck stated she had kept a scrap book for the child with photos of her birth which she would eventually show her. 

7. On the information provided, I am satisfied that the child was given by Mr Whitby and Ms Marlow to Mr and Mrs Beck according to Torres Strait Islander cultural practice of traditional adoption (Kupai Omasker). The child was given to Mr and Mrs Beck after her birth and they have assumed parenting duties for her. Both Mr and Mrs Beck report the child has been accepted and welcomed into their respective extended families and she is identified as their daughter. There are no reports of the child having been exposed to any harm or domestic violence and I conclude that the orders that are proposed, which exhaust the powers which this court currently has, are in the child’s best interests and I accordingly will make them.

8. As I have already mentioned, the first Respondent is recorded on the birth certificate as the child’s father and the second Respondent is recorded on the birth certificate as the child’s mother. There is currently no power under the Family Law Act to make any order that would rectify that situation. Notwithstanding the orders I make today, under the Family Law Act, the Respondents remain the child’s parents and the Applicants do not become the child’s parents. The difficulty with the birth certificate is an example of a practical problem that flows from that lack of formal recognition of the Applicants as the parents of the child. The problem has been discussed for more than 25 years in various significant Government reports. The Federal Government has power to amend the Family Law Act to enable a court to declare persons in the positions of the Applicants in this case as parents. Alternatively the States have power to amend State legislation to allow full recognition of traditional Torres Strait Islander child rearing practices.  Maybe one day the law will be changed

I certify that the preceding seventy-five (75) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 2 March 2012.

Associate: 

Date:  19.3.2012