Dane & Anor & Alger

[2014] FamCA 799

FAMILY COURT OF AUSTRALIA

DANE AND ANOR & ALGER [2014] FamCA 799

FAMILY LAW – CHILDREN – Cultural Issues – Where applicant seeking leave to obtain interim orders relating to parental responsibility – Where circumstances of urgency due to family being invited to represent their culture at a festival – Where applicant incurred difficulties obtaining a passport for the child – Where the child was placed in the applicant’s care pursuant to cultural adoption – Where child is unaware of the adoption – Where applicant unable to contact the child’s biological mother due to practical difficulties and cultural reasons – Where applicants sought an order dispensing with service – Where Court satisfied that the unique circumstances of the case militated strongly in favour of dispensing with service of the application for interim relief and ordered that for present purposes there was no requirement for service.

FAMILY LAW – CHILDREN – Parental Responsibility – Best Interest of the Child – Where question as to whether or not to accede the application on an interim basis for there to be ESPR – Where evidence of traditional adoptions within the culture and upon transfer of such child to the adoptive parents, the biological parents thereafter have nothing to do with the child and parental responsibility from a cultural perspective is given up by the biological parents upon such transfer – Where child is of Torres Strait Islander culture – Where Court satisfied dancing is an important part of that culture – Where Court satisfied it was in the best interest of the child that ESPR vest in the applicants on an interim basis.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 61F
Family Law Rules 2004 (Cth) r 7.18

APPLICANTS: Mr Dane and Ms Johnson

RESPONDENT: Ms Alger

FILE NUMBER: TVC 966 of 2014

DATE DELIVERED: 12 September 2014

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 12 September 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Ms Kefford

SOLICITORS FOR THE APPLICANTS: Queensland Indigenous Family Violence Legal Service

THE RESPONDENT: No appearance

Orders until further order

1. Pursuant to Family Law Rule 7.18(1)(b) service upon the respondent of the application for interim orders be dispensed with.

1. The applicants have equal shared parental responsibility for the child M born … 2003 (“the child”).

1. The child be permitted to travel internationally outside of Australia with the applicants between … 2014 and … 2014, and the applicants are permitted to apply for a passport for the child without obtaining the consent of the respondent Ms Alger, being the biological mother of the child, or of any other person.

1. Pursuant to s 68L(2) of the Act, the interests of the child, be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as soon as practicable to secure that independent representation of the child's interests.

1. Forthwith upon appointment by Legal Aid Queensland, the Independent Children’s Lawyer file a Notice of Address for Service.

1. Upon the filing of a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

1. Pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”) a Family Consultant nominated by the Senior Family Consultant, Townsville Registry prepare a report on matters relating to the care, welfare and development of the child, and particularly as to the allocation of parental responsibility for her.

1. The Family Consultant has leave to inspect the Court file and all documents produced on subpoena.

1. In preparing the report the Family Consultant is directed to particularly consider:

(a)Any benefit to the child of having a meaningful relationship with her biological parents;

(b)Other considerations, including:

(i)      the likely effects of any changes in the child’s circumstances;

(ii)     the child’s right to enjoy her Aboriginal and Torres Strait Islander culture, and the likely impact of orders on that right;

(iii)    the attitude to the child, and to the responsibilities of parenthood demonstrated by the applicants;

(iv)    any family violence involving the child or a member of the child’s family;

(c)Any other matters that relate to the care, welfare and development of the child.

1. Further, in preparing the report, the Family Consultant is directed to consider and address the specific cultural issues raised by this matter, including whether or not it is culturally appropriate to have the respondent served with the initiating application, with such aspects of the report to be prepared in consultation with the Court’s Indigenous Liaison Officer, Ms B or such other person or persons as she may recommend.

1. That upon the release of the Family Report to the parties, the matter be listed for directions before the Registrar on a date to be advised.

1. All parties have liberty to apply on short notice.

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dane and Anor & Alger 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 TOWNSVILLE

FILE NUMBER: TVC 966 of 2014

Mr Dane and Ms Johnson

Applicants

And

Ms Alger

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application seeking leave to proceed to obtain interim orders relating to parental responsibility for M (“the child”), born in 2003.  The matter has come on urgently before me.  The circumstances of the urgency are that the child and her family have been invited to perform cultural dancing in Country C in a cultural festival intended to form part of the cultural rehabilitation of City D, which was so badly ravaged by a natural disaster some years ago.   There is no doubt that the invitation to represent their culture and, indeed, this State, is a great honour for the family. 

2. If they are to attend the event, the family have to leave Australia by …, and despite their best efforts thus far to obtain a passport for the child, they have met considerable problems principally arising from the fact that the child was placed with the applicants pursuant to a cultural adoption and since being so placed in 2004, they have had no contact with the child’s biological mother as is the cultural custom.  Since 2004, the child has been living with the applicants together with, it appears, another three siblings. 

3. I use the term “sibling” not because of the biological connection but because the child would believe them to be her siblings.  She has no knowledge that she was culturally adopted and would believe her three siblings to have the same biological background as herself. 

4. There are a number of difficulties in this matter.  The first is that the biological mother of the child is not able to be contacted by the applicants for two reasons.  Firstly, they don’t know where she is or how to contact her, but, secondly and more importantly, this would be culturally inappropriate given the traditional adoption. 

5. Against that background, Ms Kefford, who appeared for the applicants, sought an order dispensing with service pursuant to rule 7.18 of the Family Law Rules. I am satisfied that in the unique circumstances of this case being, firstly, the urgency which attends to the hearing of the matter or at least the interim application, secondly, the fact that the applicants do not know where the child’s birth mother is or how to contact her and the inevitable delay of the dealing with this application if there is any attempt to contact her, and, thirdly, the fact that it is culturally inappropriate for them to make contact with her, all militate strongly in favour of dispensing with service of the application for interim relief.

ORDERS DELIVERED

1. The next matter is whether or not I should accede to the application on an interim basis for there to be equal shared parental responsibility. In this context, section 61F of the Family Law Act looms large. That provides in relation to parental responsibility as follows:

   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 [and I interpolate that is emphatic and mandatory] have regard to any kinship obligations, and child-rearing practices, of the child’s Aboriginal or Torres Strait Islander culture.

2. Plainly, that is a matter of great significance here.  The evidence is, as I have already summarised, that it is common within this child’s culture for there to be traditional adoptions and it is common in those circumstances, and perhaps invariable, that upon the adoption having been effected by the transfer of the child to the adoptive parents, that the biological parents thereafter, at least during the childhood of the child in question, have nothing further to do with the child.  That is of course highly telling evidence as to whether or not there should be an order for equal shared parental responsibility to the applicants.  In effect, as I understand the evidence, parental responsibility from a cultural perspective is given up by the biological parents upon the transfer of the child to the adoptive parents. 

3. Of course, any consideration of a parenting order such as the kind that are sought here is governed by the best interests of the child as determined by consideration of the section 60CC factors.  However, before I turn to those factors, I should advert to the fact that under section 61DA, the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. 

4. An exception to that exists in relation to interim orders and is provided for in section 61DA(3), namely:

   When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

5. I will consider whether or not that should apply after I have considered the section 60CC factors.  Fortunately, in this case, the traverse of those factors is necessarily briefer than might occur in contests between warring parents.  Here, plainly, the significant factor which the court should take into account in the context of interim parental responsibility is the fact that the child is of Torres Strait Island culture and by section 60CC(3)(h), that is an important matter to be taken into account, namely, the child’s right to enjoy her Torres Strait Islander culture.  Dancing, plainly, is an important part of her culture. 

6. The purpose of the interim order, as distinct from any final orders, for parental responsibility, is substantially, if not solely, to ensure that the child can attend the dance event in Country C.  An additional matter that I take into account is that her being able to obtain a passport, which is ultimately the purpose of these proceedings, would enable her to enjoy a momentous event in her family’s life, in the company of her adoptive parents and siblings.  Those two matters militate strongly in favour of her best interests being in favour of a grant of parental responsibility to the applicants. 

7. I am satisfied that in the circumstances of this case, it would not be appropriate for presumption of equal shared parental responsibility for the parents as provided for under section 61DA, to apply, and I do not apply it.  I am satisfied that it is in the child’s best interests that there be equal shared parental responsibility for her vested in both of the applicants on an interim basis. 

8. That then brings me to the orders in relation to overseas travel.  The order which is sought is that the child be permitted to travel overseas and outside of Australia with the applicants between … 2014 and … 2014.  In discussion with Ms Kefford, her clients agreed that it would be more appropriate, given the urgency, to frame the order in the broadest possible way and particularly that the child is permitted to travel internationally outside of Australia with the applicants between … 2014 and … 2014, and the applicants are permitted to apply for a passport for the child without obtaining the consent of the respondent, Ms Alger, or any other person. 

9. The difficulties associated with the cultural inappropriateness of the applicants’ contacting the child’s mother were the subject of some discussion with Ms Kefford. 

10. Ultimately, her clients consented to the orders which I had been suggesting were being considered by me, namely, that at least for present purposes, there should be no requirement to serve the respondent biological mother but that that matter be revisited after an ICL had been appointed and a Family Report has been prepared.  I am satisfied that procedurally, that is the best way forward for this matter. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 12 September 2014.

Associate: 

Date:  12 September 2014