HD & MD v MP & Unknown

[2022] QChC 24

CHILDRENS COURT OF QUEENSLAND

CITATION: 

HD & MD v MP & Unknown [2022] QChC 24

PARTIES: 

HD & MD
(Applicants)

v

MP
(First Respondent)

Unknown
(Second Respondent)

FILE NO: 

117/22

DIVISION: 

Civil

PROCEEDING:
 

Originating application

DELIVERED ON: 

11 October 2022 ex tempore

DELIVERED AT: 

Cairns

HEARING DATE: 

10, 11 October 2022

JUDGE: 

Fantin DCJ

ORDERS:

Order as per draft, as amended.

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 cultural parents cannot establish identity of male birth parent 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) Act 2020 (Qld) s 4, s 6, s 8, s 9, s 10, s 22, s 32, s 47, s 48, s 49, s 52, s 53 s 81, s 86, s 88, s 97

Status of Children Act 1978 (Qld) s 24, s 27, s 28

 COUNSEL: 

Beikoff J (solicitor) for the applicants.

SOLICITORS: 

Legal Aid Queensland for the applicants.

First respondent is self-represented.

No appearance by second respondent.

1. This is an application pursuant to the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Child Rearing Practice) Act 2020 for a dispensation order pursuant to section 52, dispensing with the need for the consent of a stated party as part of an application for a cultural recognition order under that Act.

2. The applicants, who are the child’s cultural parents as defined within section 10 of that Act, make the application to the court to dispense with the need for the consent of the child’s biological father to their application for a cultural recognition order. The child’s biological mother is named as the first respondent to the application. The applicants also seek an order dispensing with the requirement to serve the originating application on the stated party, being the child’s biological father.

3. As this legislation was introduced relatively recently, and I was not assisted by any previous rulings or authorities considering these provisions, I will set out relevant parts of the legislative regime. 

4. This Act was introduced in 2021. Its purpose was to recognise Ailan Kastom child-rearing practice and to establish a process for making applications for, and decisions about, the legal recognition of the practice: section 4. Ailan Kastom is defined as “Island custom” in Schedule 1, Dictionary, to the Act.

5. The main principle for administering the Act is that any decision made under the Act in relation to a person who is the subject of an application for a cultural recognition order must be for the wellbeing and best interests of the person: section 6.

6. In this case, the person who is the subject of the application for a cultural recognition order is a young man who is currently 17 years of age. He turns 18 shortly. 

7. Because hearings in relation to the Act are not open to the public (s 97), I will not refer to any party by their name, but rather by the terms that the Act uses.  I mean no disrespect to anyone in not referring to them by name. 

8. Returning to the main principle for administering the Act, s 6(2) of the Act provides as follows:

   Without limiting subsection (1) —

   (a)in deciding what is for the wellbeing and best interests of a child who is the subject of an application for a cultural recognition order, the decision-maker must have regard to the following matters –

   (i)the need to ensure appropriate recognition and preservation of Ailan Kastom in general and Ailan Kastom child rearing practice in particular;

   (ii)the need to perform the powers and functions under this Act having regard to the sensitivity and cultural practices associated with Ailan Kastom child rearing practice;

   (iii)the legal and cultural benefits for the child if the cultural recognition order is made recognising Ailan Kastom child rearing practice;

   (iv)recognition of the birth parents’ assessment of the suitability of the cultural parents;

   (v)decisions must be made in a fair, timely and consistent manner;

   (vi)any other matter that is directly related to the child’s wellbeing and best interests.

9. Section 8 of the Act sets out the meaning of “Ailan Kastom child rearing practice” as:

   [T]he practice recognised by Ailan Kastom under which a child’s birth parents and the child’s cultural parents agree in accordance with Ailan Kastom that the parental rights and responsibility for the child are permanently transferred from the birth parents to the cultural parents.

10. Section 9 defines “birth parent” as:

    A birth parent of a child, means a person who is recognised at law as being a parent of the child at the time the child is born.

11. Section 10 defines “cultural parent” as:

    [A] person who, in accordance with Ailan Kastom child rearing practice, agrees to accept the permanent transfer of the parental rights and responsibility for a child from the child’s birth parents to the person.

12. The Act sets up a legislative scheme whereby an application for a cultural recognition order about a person who is a child may be made to the Commissioner. The Commissioner has certain functions, including an obligation “to independently consider and decide each application for a cultural recognition order”: section 22(a).

13. Part 4 sets out the procedures for applications for cultural recognition orders made to the Commissioner. Section 32 provides for certain mandatory preconditions to the making of an application. For example, an application for a cultural recognition order about a person may be made only if at least one birth parent is a Torres Strait Islander; and the person’s birth was registered in Queensland and; relevantly, at least one cultural parent is a Torres Strait islander: see subsection (1).

14. Subsection (2) requires that an application for a cultural recognition order about a person who is a child at the time the application is made may be made only – by each of the child’s birth parents and cultural parents; and if each applicant is an adult; and 30 days, or more, after the child’s birth is registered.

15. That section contemplates an application for a cultural recognition order being made even if a birth parent or a cultural parent is deceased. 

16. Other sections in Part 4 require the application for a cultural recognition order to be accompanied by a signed statement from each birth parent, and a signed statement from each cultural parent.

17. Part 5 deals with applications for cultural recognition orders. Division 3 of Part 5 is headed “Dispensing with a person’s consent”. Section 47 provides, relevantly, that:

    This division applies if an applicant for a cultural recognition order is not able to make the application for the order with the consent of any of the following persons: 

    (a)   a birth parent;

    (b)   a cultural parent.

18. If an applicant for a cultural recognition order is not able to apply for a cultural recognition order with the consent of a party whose consent is otherwise required, the applicant may apply to the court for an order dispensing with the need for the consent of the party (the stated party): section 48(1).

19. Such an application is made to a Court constituted by a Childrens Court judge: section 81.

20. Section 49 contains the service requirements for such an application. An application for an order dispensing with the need for the consent of a stated party – a dispensation order – must be served on the stated party and any other party who is an applicant for the cultural recognition order and the Commissioner.

21. Here, I am satisfied that the application for the dispensation order, which was made by originating application filed in the Childrens Court of Queensland, has been served both on the child’s birth mother, who is also an applicant for the cultural recognition order, and on the Commissioner. 

22. However, it has not been able to be served on the child’s birth father because the identity of that person is unknown to the applicants, who are the cultural parents. 

23. The application seeks an order pursuant to section 48, dispensing with the requirement to serve a copy of the application on the child’s birth parent, the biological father. In making that application, the applicants rely upon subsections (a) and (e) of section 49(4).

24. Section 49(4) provides, relevantly, that –

    The court may dispense with the requirement to serve a copy of the application on the stated party if the court is satisfied of any of the following matters: 

    (a)   the applicant can not establish the identity of the party after making all reasonable enquiries;

    (b)   the applicant can not locate the party after making all reasonable enquiries;

    (c)   the conception of the person the subject of the application for a cultural recognition order was a result of an offence committed by the party;

    (d)   there would be an unacceptable risk of harm to the birth mother of the person the subject of the application for a cultural recognition order if the party were made aware of the person’s birth or the application for a cultural recognition order;

    (e)   there are other special circumstances for dispensing with the requirement to serve a copy of the application.

25. The applicants also apply for a dispensation order pursuant to section 52 of the Act. Section 52(1) provides, relevantly:

    The court may make an order (a dispensation order) dispensing with the need for the consent of a stated party as part of the application for a cultural recognition order if –

    (a)   the court is satisfied of a matter stated in section 49(4)(a) to (d); or

    ...

    (d)   the court is satisfied there are other special circumstances for giving the dispensation.

26. If the Court makes a dispensation order, the applicant must give the Commissioner a copy of the order: section 53.

27. Part 9 of the Act deals with Court proceedings.  Section 84 provides that in exercising its jurisdiction or powers under this Act, a Court must regard the wellbeing and best interests of a child as paramount. 

28. Section 85 provides that:

    (1)A court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate.

    (2)If, on an application for an order under this Act, the court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities.

29. Section 86 requires the Court to, “as far as practicable, ensure the parties to a proceeding understand the nature, purpose and legal implications of the proceeding and of any order or ruling made by the court.”

30. Section 88 provides that a party to a proceeding may appear in person or be represented by a lawyer.

31. The applications were initially heard on their first return date.  The applicants (the cultural parents) were represented by a solicitor from Legal Aid Queensland.  The cultural parents appeared by telephone from a remote location in the Torres Strait.  The first respondent to the application, who is a birth parent, (the child’s biological mother), also appeared on the hearing of the application by telephone from a location in the Torres Strait.  She was not legally represented, although by completion of the hearing, she had obtained independent legal advice from the Queensland Indigenous Family Violence Legal Service. There was relevant evidence about that matter after privilege was waived in relation to part of that advice. 

32. The application was supported by affidavit evidence from one of the cultural parents.  The applicant’s solicitor who appeared on the hearing relied upon an outline of written submissions prepared by a different solicitor.  After hearing initial oral submissions and raising various issues with the solicitor, I adjourned the application overnight to enable further evidence to be placed before the court and further submissions made. 

33. In considering the orders sought, I have taken into account the written outline of submissions and the advocate’s oral submissions, as well as the matters relied upon at the resumption of the hearing, which included the Explanatory Note to the Bill for the Act and the additional evidence in exhibit 5. 

34. Because there was a time imperative to consider the application and decide it before the child turned 18, which occurs in two days’ time, I am providing reasons on an ex tempore urgent basis. 

35. The matters the Court must be satisfied of today before it can make the orders sought are essentially these: whether the court is satisfied that the applicants, being the cultural parents, cannot establish the identity of a child’s birth father (his biological father) after making all reasonable enquiries (pursuant to s 49(4)(a)) or there are other special circumstances for dispensing with the requirement to serve a copy of the application (pursuant to ss 52, 49(4)(e)).

36. The court may only make a dispensation order dispensing with the need for the consent of the child’s birth parent (biological father) as part of the application for a cultural recognition order if the court is satisfied of the matter in s 49(4)(a) or the court is satisfied there are other special circumstances for giving the dispensation. In that sense, the same test applies for dispensation with the requirement to serve the originating application, as well as dispensation with the need for consent of that party to the application for a cultural recognition order.

37. I am satisfied on the basis of the evidence of the following matters. 

38. The child was born to the first respondent, his biological mother, on a date identified in 2004 on Thursday Island and his birth mother was also born in the Torres Strait.  A certified copy of his birth certificate does not identity a father. 

39. The child’s biological mother, the first respondent, also applies for the cultural recognition order and consents to the dispensation orders sought by the cultural parents.  She wishes the cultural recognition application to proceed. 

40. The applicants (the cultural parents) do not know the identity of the child’s biological father.  The child has been in the full-time care of the cultural parents since his birth.  He knows them as his parents.  I infer from the affidavit evidence that he has not yet been informed about his cultural adoption.  His cultural parents plan to discuss this with him when, as a family, they feel it is the appropriate time and in his best interests to do so. 

41. The child’s biological mother approached the cultural parents when she was five months pregnant and asked them if they would take the child as their son under Ailan Kastom cultural adoption practices.  At that time, she was a single mother to other children.  According to the cultural parent, the birth mother did not know the identity of the child’s biological father.  At the time the biological mother became pregnant, she was not in a committed relationship with any person.  The cultural parents have not been able to contact any person to confirm parentage or to seek their consent as the biological father to a cultural recognition application. 

42. In the almost 18 years in which the cultural parents have had the care of the child, no person has approached them or, to their knowledge, the biological mother, claiming to be the child’s biological father. 

43. It is very important to the cultural parents as a family to be able to seek a cultural recognition order before the child turns 18.  After that date, an application for such an order can only be made by the young person themselves. 

44. With respect to the question whether the applicants cannot establish the identity of the party “after making all reasonable enquiries”, the applicant’s solicitor emphasises and submits that the court should find it would not be culturally appropriate under Ailan Kastom for the culturally adoptive parents to make inquiries of the birth mother as to the paternity of the birth father. And that according to Ailan Kastom, it would be only the birth mother’s place to say who the birth father is.  I am satisfied that that is the cultural parents’ position.  I am also satisfied that the birth mother is not comfortable providing any further information regarding the identity of the biological father, if it is known to her at all.

45. The applicant’s solicitor submits that those matters are particularly relevant to the question of what enquiries can reasonably be made when considering section 49(4)(a) and section 52(1)(a).

46. In construing the question of whether an applicant has made all reasonable enquiries, I must bear steadily in mind the main purpose of the Act in section 4 and the main principle of the Act in section 6, particularly when having regard to the wellbeing and best interests of the child who is the subject of the application.

47. What might be reasonable enquiries for someone who was not a Torres Strait Islander and not a participant in cultural practices associated with Ailan Kastom child rearing practice may well be quite different. However, I accept that in construing the expression “after making all reasonable enquiries” in section 49(4)(a), the matters in section 6 and 4 are relevant.

48. The applicants’ solicitor also points to the reference in the Explanatory Note to the Bill at page 1, which states that:

    Under Torres Strait Islander traditional child rearing practice, the cultural (or receiving) parents assume all parental responsibilities for the child.  Although the practice varies between the five island groups, generally, it is a private confidential family agreement that results in the child taking the surname of the cultural parents and culturally having the same rights and entitlements as the birth children of the cultural parents ...

49. Having considered those submissions and the evidence available to me in the context of the principles in the Act, I am satisfied pursuant to section 49(4)(a) that the applicants cannot establish the identity of the child’s biological father after making all reasonable enquiries.

50. Therefore, it is not strictly necessary for me to consider whether there are any other special circumstances for dispensing with the requirement to serve a copy of the application, or for giving the dispensation for the consent, under section 52.

51. However, there are a number of other matters which also seem to me to support the making of a dispensation order under that section.  They include that in circumstances where the child has known only the cultural parents as his parents since birth, that he has been in their full-time care since birth, that his birth mother has been provided with independent legal advice, that she consents to the dispensation orders sought, and she consents to the application for a cultural recognition order and supports the application before the Court, it would be in the best interests of the child and for his well-being to make the dispensation order sought.

52. For completeness, I record that when I considered section 9 and the meaning of “birth parent”, I have taken into account that the birth certificate does not identify the biological father, that there is no other evidence pointing to or even suggesting who the biological father’s identity might be, and that none of the presumptions of paternity in the Status of Children Act 1978 apply in this case (for example, sections 24, 25, 27 or 28).

53. In those circumstances, I am satisfied of the relevant requirements to permit the court both to dispense with the requirement to serve a copy of the originating application on the birth parent who is the biological father, and to make a dispensation order dispensing with the need for the consent of the birth parent who is the biological father as part of the application for a cultural recognition order.

1. I make an order in terms of the draft handed up, signed by me, as amended and placed with the papers. 

2. There is a requirement under section 53, now that I have made that order, that the applicants give the Commissioner a copy of the order.