GMH v OTW - [2024] QChC 19

CHILDRENS COURT OF QUEENSLAND

CITATION:

GMH v OTW & Ors [2024] QChC 19

PARTIES:

GMH

(applicant)

v
OTW

(first respondent)

&

FRR

(second respondent)

&

UNKNOWN

(third respondent)

FILE NO/S:

2854/24

DIVISION:

Children’s Court of Queensland

PROCEEDING:

Application

DELIVERED ON:

23 October 2024 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2024

JUDGES:

Dearden DCJ

ORDER:

(1) An order dispensing with the requirement to serve on the third respondent under section 49(4)(b) of the Meriba Omasker Kaziw Kazipa Act 2020 (Qld);

(2) An order dispensing with the requirement for the consent of the biological father (third respondent) to the application for a cultural recognition order, pursuant to section 52(1)(a) of the Meriba Omasker Kaziw Kazipa Act 2020 (Qld).

CATCHWORDS:

CIVIL APPLICATION – application for dispensation order under Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 (Qld) – application to dispense with requirement to serve the application on unknown male birth parent – application to dispense with need for consent of unknown male birth parent as part of application for cultural recognition order – whether the male birth parent’s identity can be established after making “all reasonable enquiries” – whether there are other special circumstances to dispense with the requirements.

LEGISLATION:

Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act2020 (Qld) ss. 4, 8, 9, 10, 47, 49, 52, 58, 81, 84

Uniform Civil Procedure Rules 1999 (Qld) r. 117

CASES:

Hatfield v TCN Channel 9 Pty Ltd [2010] NSWCA 69

COUNSEL:

G Dwyer (sol) for the applicant

No appearance for the first respondent

FRR for the second respondent

SOLICITORS:

Legal Aid Queensland for the applicant
The first respondent appeared self-represented
The second respondent appeared self-represented

Introduction

This an application pursuant to the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act2020 (Qld) ("MOKKA").
The applicant seeks the following orders: -
"(1) An order dispensing with the requirement to serve on the third respondent pursuant to MOKKA s.49 (4)(b); and
(2) An order dispensing with the requirement for the consent of the biological father (third respondent) to the application for a cultural recognition order pursuant to MOKKA s.52 (1)(a)".
The background to this matter is that a joint application has been made by GMH, OTW (cultural parents) and FRR (birth mother) to the Office of the Commissioner of the Meriba Omasker Kaziw Kazipa seeking a cultural recognition order be made in relation to the child; LGP, born [redacted], currently aged 12 years.
The outcome of this cultural recognition order application, if successful, will be the issue of a new birth certificate for LGP that lists GMH and OTW as her parents. That birth certificate will then effectively replace the current birth certificate[1] and will ensure that LGP's legal identity reflects her lived cultural identity and all that she knows.
[1]Exhibit 4 – Copy of birth certificate of LGP.
The background to this matter is that applications for cultural recognition orders are made to the Office…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QChC 19
Decision Date: 23 October 2024 (delivered ex tempore)

CaseChat Overview and Summary

In the case of GMH v OTW, the applicant sought a dispensation order under the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 (Qld). The application was made for the purpose of obtaining a cultural recognition order, recognising the applicant as the primary carer of the child. The application sought to dispense with the requirement to serve the application on an unknown male birth parent and to dispense with the need for the consent of this unknown male birth parent. The application was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issues before the tribunal were whether the identity of the male birth parent could be established after making all reasonable enquiries, and whether there were other special circumstances to dispense with the requirements. The applicant argued that all reasonable enquiries had been made to locate the male birth parent, but these efforts had been unsuccessful. The applicant also argued that there were special circumstances that warranted the granting of the dispensation order, including the significant delay in making an application and the impact of the COVID-19 pandemic on the applicant's ability to locate the male birth parent.

The tribunal found that the applicant had made all reasonable enquiries to locate the male birth parent and that there were special circumstances that warranted the granting of the dispensation order. The tribunal noted that the application had been made several years after the child's birth and that the male birth parent had not been involved in the child's life. The tribunal also noted that the COVID-19 pandemic had made it difficult for the applicant to locate the male birth parent. The tribunal concluded that the application met the requirements of the Meriba Omasker Kaziw Kazipa Act 2020 (Qld) and granted the application for a dispensation order.

The tribunal made orders dispensing with the requirement to serve the application on the male birth parent and dispensing with the requirement for the consent of the biological father to the application for a cultural recognition order. The tribunal found that the application met the requirements of the Meriba Omasker Kaziw Kazipa Act 2020 (Qld) and that there were special circumstances that warranted the granting of the dispensation order. The tribunal's decision provides guidance for practitioners on the application of the Meriba Omasker Kaziw Kazipa Act 2020 (Qld) and the factors that may be considered in determining whether to grant a dispensation order.

Orders

Orders of the court

(1) An order dispensing with the requirement to serve on the third respondent under section 49(4)(b) of the Meriba Omasker Kaziw Kazipa Act 2020 (Qld);

(2) An order dispensing with the requirement for the consent of the biological father (third respondent) to the application for a cultural recognition order, pursuant to section 52(1)(a) of the Meriba Omasker Kaziw Kazipa Act 2020 (Qld).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	GMH v OTW & Ors [2024] QChC 19
PARTIES:	GMH (applicant) v OTW (first respondent) & FRR (second respondent) & UNKNOWN (third respondent)
FILE NO/S:	2854/24
DIVISION:	Children’s Court of Queensland
PROCEEDING:	Application
DELIVERED ON:	23 October 2024 (delivered ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	23 October 2024
JUDGES:	Dearden DCJ
ORDER:	(1) An order dispensing with the requirement to serve on the third respondent under section 49(4)(b) of the Meriba Omasker Kaziw Kazipa Act 2020 (Qld); (2) An order dispensing with the requirement for the consent of the biological father (third respondent) to the application for a cultural recognition order, pursuant to section 52(1)(a) of the Meriba Omasker Kaziw Kazipa Act 2020 (Qld).
CATCHWORDS:	CIVIL APPLICATION – application for dispensation order under Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 (Qld) – application to dispense with requirement to serve the application on unknown male birth parent – application to dispense with need for consent of unknown male birth parent as part of application for cultural recognition order – whether the male birth parent’s identity can be established after making “all reasonable enquiries” – whether there are other special circumstances to dispense with the requirements.
LEGISLATION:	Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act2020 (Qld) ss. 4, 8, 9, 10, 47, 49, 52, 58, 81, 84 Uniform Civil Procedure Rules 1999 (Qld) r. 117
CASES:	Hatfield v TCN Channel 9 Pty Ltd [2010] NSWCA 69
COUNSEL:	G Dwyer (sol) for the applicant No appearance for the first respondent FRR for the second respondent
SOLICITORS:	Legal Aid Queensland for the applicant The first respondent appeared self-represented The second respondent appeared self-represented