LOKARE & BAUM

[2015] FamCA 521

FAMILY COURT OF AUSTRALIA

LOKARE & BAUM [2015] FamCA 521

FAMILY LAW – CHILDREN – Review of Registrar’s decision out of time – Where the father made every endeavour to file his review application within time – Leave granted for application to be filed out of time.

FAMILY LAW – CHILDREN – Review of Registrar’s decision – Interim parenting orders – Where the mother is the primary carer of the young child – Where the father did not provide the evidence required for the orders to be changed – Where the orders sought by the father cannot be practically implemented –  Father’s review application unsuccessful.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Lokare

RESPONDENT: Ms Baum

INDEPENDENT CHILDREN’S LAWYER: Ms Shea

FILE NUMBER: DNC 17 of 2013

DATE DELIVERED: 5 June 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 2 June 2015

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Fowler

SOLICITOR FOR THE RESPONDENT: Haydon Fowler Corbett Jessop

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Bankstown Family Law

Orders

IT IS ORDERED

1. Z Lokare, born … 2011, (“the child”) live with the mother.

2. The child spend time with the father as follows:

   (a)       During 2015:

   (i)In the Northern Territory at the following times:

   A.For a period of 10 days at a time which incorporates one of the time periods in sub-paragraph B for the purposes of the child undertaking her ‘smoking ceremony’ with her L group family, subject to subparagraph (ii).

   B.Subject to subparagraph 2(c), during each of the following 7 day periods from 9.00am until 5.00pm on each day, in Darwin.

   i.    8 – 14 April

   ii.     28 June – 4 July

   iii.   25 September – 1 October

   C.     Subject to subparagraph D, the child shall have 1 overnight stay with the father during the period referred to in subparagraph B(ii) and 2 overnight stays with the father during the period referred to in subparagraph B(iii) on days as agreed by the parties in which event the time the child spends with the father on those days shall continue until 12.00pm on the following day and recommence at 9.00am on the day thereafter.

   D.  The father shall provide to the mother prior to the day of the overnight stay details of the accommodation at which he and the child will be staying including the address and telephone contact number and shall satisfy the mother that the accommodation and sleeping arrangements are satisfactory for the comfort and safety of the child.

   (ii)That for the purposes of subparagraph 2(a)(i)A:

   A.  The father shall provide to the mother not less than 28 days prior notice in writing to the dates, times and location for the ‘smoking ceremony’ to take place and of all other arrangements to be put in place for the ‘smoking ceremony’.

   B.  The mother shall be permitted to be present during the ‘smoking ceremony’.

   C.  The father shall book and pay for the child and the mother to
   fly on a commercial airline between Sydney and Darwin and return and shall provide to the mother a copy of the booking confirmations not later than 21 days before the first flight.

   D.  The father shall arrange and pay for the return transport of the child and the mother from Darwin to C Community, and return, with such transport to be of a good standard of comfort and safety.

   E.   The father shall arrange and pay for the accommodation of the mother and the child while in Darwin in a motel or hotel, or such other accommodation as agreed to by the mother, of not less than a 3 star standard.

   F.   The father shall arrange and pay for the accommodation of the mother and the child at Town T, for the purposes of the child’s participation in the ‘smoking ceremony’ at C Community of a standard which is reasonably comfortable and appropriate having regard to accommodation availability.

   (iii)In Sydney at the following times:

   A.  Subject to subparagraph B and C, during each of the following 7 day periods from 9.00am to 3.00pm each day other than on days when the child attends pre-school in which event the time will be from 8.00am to 9.00am and from 3.00pm to 6.00pm:

   i.       18 – 24 May

   ii.      17 – 23 August

   iii.     9 – 15 November

   B.     Subject to subparagraph C, the child shall have 1 overnight stay with the father during the period referred to in subparagraph A(i), 2 overnight stays with the father during the period referred to in subparagraph A(ii) and 2 overnight stays with the father during the period referred to in subparagraph A(iii) on days as agreed by the parties in which event the time the child spends with the father on those days shall continue until 12.00pm on the following day and recommence at 9.00am on the day thereafter.

   C.     The father shall provide to the mother prior to the day of the overnight stay details of the accommodation at which he and the child will be staying including the address and telephone contact number and shall satisfy the mother that the accommodation and sleeping arrangements are satisfactory for the comfort and safety of the child.

   (iv)By Skype communication in each week at the following times:

   A.     Tuesday, commencing at 8.30am Sydney time; and

   B.     Wednesday, commencing at 8.00am Sydney time; and

   C.     Friday, commencing at 8.30am Sydney time;

   D.    with the father to initiate the Skype call to the child’s Skype address.

   (b)       During 2016:

   (i)In the Northern Territory at the following times:

   A.  Subject to subparagraph 2(c), during each of the following 7 day periods from 9.00am until 5.00pm on each day, in Darwin.

   i.10 – 16 April

   ii.3 – 9 July

   iii.25 September – 1 October

   B.  Subject to subparagraph C, the child shall have 2 overnight stays with the father during each of the periods referred to in subparagraph A on days as agreed by the parties in which event the time the child spends with the father on those days shall continue until 12.00pm on the following day and recommence at 9.00am on the day thereafter.

   C.  The father shall provide to the mother prior to the day of the overnight stay details of the accommodation at which he and the child will be staying including the address and telephone contact number and shall satisfy the mother the accommodation and sleeping arrangements are satisfactory for the comfort and safety of the child.

   (ii)In Sydney at the following times:

   A.  Subject to subparagraphs B and C, during each of the following 7 day periods from 9.00am to 3.00pm each day other than on days when the child attends pre-school or school in which event the time will be from 8.00am to 9.00am and from 3.00pm to 6.00pm:

   i.       29 February – 6 March

   ii.      23 – 29 May

   iii.     22 – 28 August

   iv.     14 – 20 November

   B.  Subject to subparagraph C, the child shall have 2 overnight stays with the father during each of the periods referred to in subparagraph A (i, ii, iii, iv), on days as agreed by the parties in which event the time the child spends with the father on those days shall continue until 12.00pm on the following day and recommence at 9.00am on the day thereafter.

   C.  The father shall provide to the mother not less than 21 days prior notice in writing of his intention to come to Sydney to spend the time with the child, and shall provide to the mother no less than 7 days prior notice in writing the address and contact telephone number for the accommodation at which the father will be staying during the time and, if it is different, for the accommodation at which the child will be spending the overnight time with the father.

   (iii)By Skype communications in each week as follows:

   A.     Tuesday, commencing at 8.00am Sydney time; and

   B.     Wednesday, commencing at 8.00am Sydney time; and

   C.     Friday, commencing at 8.00am Sydney time;

   With the father to initiate the Skype call to the child’s Skype address.

   (c)That for the purposes of the child spending time with the father in the Northern Territory:

   (i)The father shall book and pay for the child and the mother to fly on a commercial airline between Sydney and Darwin return and shall provide to the mother a copy of the booking confirmation no later than 21 days before the first flight; and

   (ii)The father shall book and pay for the accommodation of the mother and child while in Darwin in a motel or hotel or such other accommodation as agreed by the mother, of not less than a 3 star standard and provide to the mother a copy of the booking confirmation no later than 21 days before the flight to Darwin.

3. Each party keep the other party informed at all times of the current residential address and of a telephone contact number for that party.

4. The father be restrained from saying anything to the child, or within the hearing of the child, which indicates or infers that the mother has taken the child away from the father or is preventing the child from spending time with the father or is otherwise not supportive of the child’s relationship with the father.

5. Each party be restrained from denigrating the other party, or that party’s friends and/or family, in the presence or within the hearing of the child and use his or her best endeavours to ensure that no other person does so.

6. Each party notify the other as soon as practicable in the event the child is suffering a serious illness or having a serious accident.

7. Orders are made in accordance with the Minute of Order proposed by the Independent Children’s Lawyer as set out hereunder:-

   7.1The parties each enrol in and complete a Parenting after Separation Course provided by Unifam or Relationships Australia and provide the other party and the Independent Children’s Lawyer with evidence of the completion of that course.

   7.2The father is free to make arrangements for the child to spend time with members of his L group family and participate in cultural events with them during any period that the child is spending time with him in accordance with these orders.

8. That the child communicate with the extended L group family by Skype on one Sunday of each month between 12 noon and 2 pm Darwin time.

9. That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, 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 Lokare & Baum 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 SYDNEY

FILE NUMBER: DNC 17  of 2013

Mr Lokare

Applicant

And

Ms Baum

Respondent

REASONS FOR JUDGMENT

1. The applicant Mr Lokare (“the father”) and the respondent Ms Baum (“the mother”) are the parents of Z Lokare (“the child”) who was born in early 2011 and is thus four years old.

2. The father, who is a professional, is an L group indigenous man from the Northern Territory. The mother is not an indigenous person and is the full time carer for the child.

3. The parents separated when the child was eight months old and she has, since separation, lived with her mother in Sydney. The father has lived at Town B near Darwin.

4. On 20 March 2015 the Principal Registrar, on the application of the father, made interim orders which provided for the time which the child would spend with her father. The father seeks to review the decision of the Principal Registrar although the application was not filed within the prescribed time.

THE APPLICATION TO REVIEW OUT OF TIME

1. On 15 April 2015, within the time prescribed by the Rules, the father attempted to e-file the Application in a Case and affidavit together with a copy of his health care card. He was unsuccessful. On the same day the father sent an email to the Registry noting that he had attempted to e-file his application and asking how he should file the documents, whether they could be faxed and whether he could have an extension of time to file his documents.

2. The father attempted to file an Application in a Case and a supporting affidavit by facsimile on 16 April 2015, again within the time prescribed to review the decision of the Principal Registrar. As the documents were not originals and had other defects they were referred to a Registrar who directed that they be rejected for filing.

3. The father received an automated response to his email giving general information.

4. On 16 April 2015, the father received a response to his email from a Client Service Officer at the Family Court of Australia. He was advised that “To request to file this application by facsimile you should email the Sydney registry on [email protected] setting out the reasons why you need to file the application this way and attaching the documents you wish to file, preferably in one email. The registry will respond to you if they have any further requirements or whether they will accept the document for filing this way.”

5. Also on 16 April 2015, the father sent an email to the Sydney registry setting out the reasons for filing by facsimile. Ultimately the father was not permitted to do so.  

6. The father then posted the documents to the Sydney registry together with envelopes for the return of the service copies. By the time the documents reached the Sydney Registry the application was out of time and the father was not permitted to file. The father subsequently filed an application seeking to be permitted to proceed out of time.

7. I am satisfied that the father made every endeavour to file his application to review the decision of the Principal Registrar within the time specified within the Family Law Rules 2004 (Cth). Both the mother, who was represented by counsel, and the independent children’s lawyer (“ICL”) were present in Court and prepared to argue the substantive application and in those circumstances I am satisfied that it is appropriate that the father be granted leave to review the decision of the Principal Registrar out of time.

THE PARENTING PROCEEDINGS

1. The proceedings before the Principal Registrar on 20 March 2015 were instituted by the father’s Application in a Case in which he sought orders to the effect that, until such time as the parenting proceedings are finally heard or determined, the child live with him for a period of six months in the Northern Territory at the former matrimonial home at Town B. The father sought orders that the child undertake a “smoking ceremony” (which will be further explained later in these reasons) with her indigenous family at C Community in Central Australia. The father included machinery provisions for the arrangements. Relevantly the father sought orders that the mother was to move to the Northern Territory with the child for a period of time and pay for her own travel and accommodation.

2. In the alternate the father sought orders that the child live with him in Darwin for a period of two weeks every second month, beginning in October 2014 from 8 am to 6 pm each day. It is implicit in the father’s alternate application that the mother is required also to move to the Northern Territory, again at her own expense, to care for the child at times when she is not with the father.

3. The mother opposed the father’s application but she sought a detailed suite of orders which provided that, in 2015, the child would travel to the Northern Territory for a period of ten days, at a time which incorporated the smoking ceremony, and for three further periods each of seven days. The mother’s response provided that, during the time the child was in the Northern Territory, she was to be introduced to overnight time with the father. Relevantly, the mother sought orders that the father was to be responsible for the cost of airfares and accommodation both in Darwin and in relation to the travel to C Community for the smoking ceremony.

4. The mother further sought orders that the father spend time with the child in Sydney for three further periods each of seven days and by Skype on Tuesday, Wednesday and Friday.

5. The mother sought orders for the child to spend time with the father in the Northern Territory in 2016 and also for the father to spend time with the child in Sydney in 2016.

6. The orders which were made by the Principal Registrar were in accordance with the mother’s application. They are not here set out because, with one exception that will become apparent, they are the orders which will be made in these proceedings.

7. Before me, the father sought different orders from those he sought before the Principal Registrar. Using the orders of 20 March 2015 as a template, the father sought variations of individual orders. The substance of those variations are set out below with my determinations in relation to each:

8. (a)      The addition of an equal shared parental responsibility order.

   There was no evidence directed to this application. It is not necessary for the issue to be determined at this time.

   (b)       Deletion of the order that the child live with the mother.

   There was no evidence directed to this application. It does not appear to be disputed that the child will continue to live with the mother at all times other than those which she spends with the father.

   (c)       Extend the period spent in the Northern Territory from ten to 14 days.

   I accept the submission of the ICL that, if the father cannot afford to accommodate the mother and the child for ten days, he cannot afford to accommodate them for 14 days.

   (d)       Extend the periods in Darwin from seven to 14 days.

   I accept the submission of the ICL that, if the father cannot afford to accommodate the mother and the child for seven days, he cannot afford to accommodate them for 14 days.

   (e)       Extend the initial overnight time from one to two days.

   The child has not yet experienced an overnight stay with the father. There is no evidence about how she will cope with the separation from her mother for one night. The imposition of a period of two nights may not be tolerable for her.

   (f)Delete the requirement that the overnight accommodation provided be satisfactory for the comfort and safety of the child.

   No evidence was directed to this application. It is self-evident that the accommodation for the mother and the child should be satisfactory.

   (g)Include an order that the child be enrolled in kindergarten while in Darwin.

   There is no apparent benefit to the child from being enrolled in a strange kindergarten for a short period. There is no evidence that it is possible for the child to attend kindergarten on a casual basis. The mother’s evidence is that the child has struggled with kindergarten.

   (h)Delete the permission for the mother to be present at the smoking ceremony.

   This issue will be dealt with later in these reasons.

   (i)Reduce the notice period from the father for the trip for the smoking ceremony from 28 to 14 days.

   The arrangements for the smoking ceremony will be complicated because of the distances involved and the difficulties with travel and accommodation. The mother should be given adequate notice. Fourteen days’ notice is insufficient. There is no evidence to establish the appropriateness of, or reason for, the shorter period.

   (j)        Delete the requirement that the father pay the mother’s airfares.

   The mother cannot afford the airfares. She is required to accompany the child. If the father cannot pay the airfares, then the child will not travel.

   (k)Delete the requirement that the accommodation provided be of three star rating.

   The mother can waive the requirement for adequate accommodation if she chooses. She may agree to camp at C Community (if she is permitted to be there). However that requirement should not be imposed upon her. The requirement for three star accommodation is an empirical standard that is easy to understand and is appropriate.

   (l)        Increase the time in Sydney from seven to 14 days.

   No evidence was directed to this application. The father had not, until the hearing on 2 June, travelled to Sydney since August 2014. No submissions were directed this application and the basis to vary the order was not explained.

   (m)Reduce the notice period for the father’s trips to Sydney from 21 to seven days.

   There was no evidence to explain why the father could not give adequate notice to the mother if he intends to come to Sydney to spend time with the child.

   (n)Delete the requirement for the father to advise the mother of his address and contact details in Sydney when he is spending time with the child.

   There was no evidence to explain why the father could not give his contact details to the mother. She is entitled to know where the child will be when she is with her father.

   (o)       Change the days and time for the Skype communication.

   The mother’s evidence is that the existing Skype regime has worked well for the child since August 2013. No evidence was proffered in the father’s case to justify any change.

   (p)Include an order that there be Skype communication with the extended indigenous family one Sunday each month.

   The suggestion of Skype with the family had never been made to the mother. She readily agreed.

   (q)       Delete the orders for time in 2016.

   The father gave no explanation for not wanting time with the child in 2016. The mother remains prepared to abide by the orders of the Principal Registrar in 2016. The orders will remain in force. The father may choose to avail himself of the time.

   (r)Reduce the minimum standard of accommodation for the mother and the child in Darwin.

   This appears to be duplication of (k). The same reasoning applies.

   (s)Delete the order restraining the father from saying anything to indicate to the child that the mother has taken her away from the father.

   The mother deposed to a conversation with the child in June 2014 where the child referred to having been stolen. The father sent a text message to the mother shortly after referring to the “stolen generation” and stating “The fact that u have taken [the child] away from her [indigenous] family is an indication of the type of person you really r…” The father filed no evidence in support of this application. However it is entirely inappropriate that the father have a conversation with the child that suggests that she has been “stolen” and it is appropriate to continue the restraint.

   (t)        Order that the mother enrol in a cross cultural awareness course.

   There was no evidence that any such course is available to the mother, of the cost of the course, how the course would be paid for or what attendance would be required.

   (u)       Order that the father provide a mobile phone for the child.

   There was no evidence from the father of any problems in communicating with the child. He suggested that the phone could be used for text messages. The child is only four years old. The mother is opposed to her having a mobile phone at her young age and no evidence in the father’s case suggested that this was appropriate.

   (v)       An order that the parties “Agree to maintain these orders”.

   This is not an order that could be made.

1. The matter comes before the Court by way of hearing de novo, and was heard on the basis of submissions and without cross-examination. There was no expert evidence available to assist the Court in relation to the child’s best interests.

HISTORY

1. Although it is not possible to make findings of fact for the purpose of this determination, the proceedings being dealt with on an interim basis only and without cross-examination, there is surprisingly little dispute between the parties about the relevant history.

2. The child was born in early 2011. The father and the mother were then living in Melbourne.

3. In June 2011 the father, the mother and the child moved from Melbourne to Darwin. On 28 September 2011, when the child was eight months old, the parties separated and the mother and the child moved to live in Sydney with the mother’s parents.

4. The father spent time with the child in Sydney between 10 and 13 December 2011. In January and March 2012 the mother took the child to Darwin to spend time with her father. In May 2012 the father came to Sydney for a week to see the child and in June, July and October 2012 the mother took the child to Darwin to spend time with her father.

5. In February 2013, the mother took the child to Darwin to spend time with her father and in August 2013 the child commenced communicating with her father by Skype three times per week. The Skype communication continues successfully.

6. Also in August 2013 the father came to Sydney for a week and spent time with the child.

7. In November 2013 the mother took the child to Darwin to spend time with the father and, in December 2013, the father came to Sydney and spent time with the child.

8. Between 16 January 2014 and 24 August 2014 the father remained in the Sydney area living close to the child’s place of residence. The child spent time with her father during that period mostly on each Saturday, Monday and Thursday for three to four hours at a time. The father then returned to Darwin.

9. In November 2014, the mother took the child to Darwin to spend time with the father. She borrowed the funds to cover her and the child’s airfares and living expenses because the father told her that he was unable to assist her with those expenses.

10. The Orders of the Principal registrar provided for the child to spend time in Darwin in April 2015 provided that the father paid for the airfares and accommodation for the child and the mother. The father did not avail himself of the opportunity to spend time with the child in Darwin between 8 and 14 April 2015. It was his evidence that he was unable to afford to pay for the mother and the child to travel and be accommodated in Darwin and therefore that he was unable to avail himself of that time with the child.

11. When the matter came before the Court for the hearing of the father’s application on 2 June 2015, it was common ground that the child had never spent a night away from her mother.

WHAT TIME SHOULD THE CHILD SPEND WITH THE FATHER

1. There is no dispute that it would be in the child’s best interests that she have a meaningful relationship with both of her parents.

2. The child is only four years old and has not expressed any relevant views.

3. The child has lived in the primary care of her mother since her birth. The mother did not work after the child was born, when the mother and the father were living together. The parents separated when the child was eight months old. After the separation, of necessity having regard to the distance between the mother’s place of residence in Sydney and the father’s residence in the Northern Territory, the times which the child spent with her father were limited and have not been extended to any overnight time.

4. On the last occasion when the child spent time with her father in Darwin, between 12 and 19 November 2014, the child spent between four and six hours with her father on each day and for some of that time the mother was also present. The child was reluctant to be separated from the mother and on a number of occasions asked the mother to come with her when she was spending time with her father. The mother observed that the child became upset on occasions when the mother left her with her father.

5. The father has extended family in the Northern Territory but the child has not spent a great deal of time with any of those people and there is no evidence before me which suggests that the child would find those people sufficiently comforting to be able to sustain any period of time away from her mother.

6. The father is an L group man. He has a cultural obligation to the child to ensure that she is supported in developing her connection to her indigenous culture and family. The father says, and I accept, that it is difficult for the child to maintain her contact and connection with her indigenous family whilst she lives in Sydney.

7. The father’s sister, Mrs R, swore an affidavit on 12 October 2014 in which she stated:

   14. It is important that [the child] knows me as her Aunty in our culture so she may understand that I am her Aunty for later in life. In our culture, [the child] calls me Aunty, but she will call [the father’s] brother [named], her father.

   15. The family has been waiting for [the father] to bring [the child] down to visit family in [C Community].

   16. I was told by our sister [Ms W], who was living at [C Community] that arrangements were being made for [the child] to be smoked at [C Community] by our Grandmother [Ms K].

   17. I have told [the father] about our Grandmother [Ms K] requesting to take [the child] to be smoked at [C Community]. And I am also aware that our sister [Ms W] has also told [the father] to take [the child] to visit her Great Grandmother [Ms K] so she can be smoked on our country.

   18. One purpose of smoking is to ensure that the baby does not get sick as they grow-up. More importantly the smoking ceremony is performed so that the child will grow up with a [L group] identity. The child will know where their family comes from, and who they are as a [L] person.

   19. The smoking ceremony is not performed by men. It is only performed by women. It is to be performed by the female side of the family. For [the child] it is her Great Grandmother and her Aunties that will perform this ceremony.

   20. [The father] is able to observe, but not participate, in the smoking ceremony. [The father] has to support and arrange the smoking ceremony with his sisters. The sisters will arrange with [the child’s] Great Grandmother where and how the ceremony will take place.

   21. The smoking ceremony has other significance because we believe that the memory of the person who smokes the baby will remain with the baby. [the child’s] Great Grandmother is a very special person in our family.

   22. In our culture it is important that there is a memory of the person who smokes the baby, as this will keep them strong. It is a form of initiation. The baby will know her culture by being smoked. As [the child’s] Great Grandmother is the last of the line of our Grandmother’s being smoked by her is very important and a significant moment.

8. The father’s sister also deposed that the family had discussed the mother’s request to be present at the smoking ceremony and had agreed that the mother could attend.

9. The mother in her affidavit sworn on 27 February 2015 deposed that she was supportive of the child being “smoked”. She said she first spoke to the father about the smoking ceremony when the child was about four months old. The mother referred to a series of email communications with the father commencing in August 2014 in which she asked the father what he proposed in terms of the smoking ceremony, specifically for details of where the ceremony was to take place, what was involved in the ceremony, how long the ceremony would last, whether the ceremony would take place over the entire period that the child would be in Darwin, where the child and the mother would be staying for the duration of the ceremony, whether the mother would be attending the ceremony and whether the father would be present. The father’s response to the mother’s queries was “I want her here for at least 6 months. She can stay/ live with me at [Town B]”.

10. During the occasion in November 2014, when the mother took the child to Darwin, the mother met with Mrs R, Mrs R’s daughter, and another younger member of the family who lives with Mrs R to discuss the smoking ceremony. The mother told Mrs R that she supported the child being smoked. The mother’s evidence is that she was told by Mrs R that the smoking ceremony would only take a few minutes and involves digging a hole in the ground and lighting material from an ant hill. Special leaves are collected and used to surround the baby with smoke. Mrs R told the mother that the whole process involving the ceremony and imparting knowledge to the child would take about one week. Mrs R told the mother that both the mother and the maternal grandmother were welcome to attend the smoking ceremony and that there are further ceremonies that the child will need to undertake over the years. The mother deposed that she told Mrs R that she would arrange to bring the child to the Northern Territory to have the ceremony performed.

11. After the Orders made by the Principal Registrar on 20 March 2015, the father spoke by telephone with Mrs R and Ms W. As a result of the father’s recounting to Ms W of his versions of the submissions made on behalf of the mother before the Principal Registrar, the father deposed that Ms W was upset and disappointed and withdrew her permission for the mother to attend the smoking ceremony and any other cultural events involving the child and her indigenous family. The father deposed “It is now very important that [the child] be able to feel comfortable with the Father and her [indigenous] family so that she is able to undertake the ceremony without the Mother being present.”

12. The extent and nature of the arrangements for the smoking ceremony only became clear in the course of the father’s submissions. What the father proposed is that the child would travel to Darwin by aeroplane. She would then travel with the father to C Community which is some 800 kilometres from Darwin by road. The trip would be undertaken by car. The father conceded that it would take at least two days to travel 800 kilometres with a four year old and would necessitate at least one overnight stop. At C Community, the family would camp, the nearest motel style accommodation being at Town T, some 100 kilometres away. The family would stay at C Community for about seven days and then travel, again by car, back to Darwin over the next two days or more. Thus, the trip would take at least 11 days if not more. There was no evidence from the father about how the travel would be undertaken or about the arrangements which might be made for the mother to accompany the child in circumstances where she will not be permitted to attend the smoking ceremony.

13. The father initially told the Court that he was not in a position to assist with the mother’s airfares although he conceded that there were no circumstances in which the child could travel unaccompanied to Darwin. The father modified his position and conceded that he would “assist” the mother in relation to the airfares but maintained that he was not in a position to give her any assistance at all in relation to the payment of accommodation.

14. Because the arrangements for the smoking ceremony are made exclusively by the women in the father’s family, the father was not in a position to give evidence about how and when the ceremony could be carried out, although he said, from the bar table, that he believed that the ceremony could also be carried out in Darwin or Alice Springs, although that would not be his preferred position. Neither Mrs R nor Ms W, who were the two people who were able to give evidence about whether or not the ceremony could take place in Darwin, gave evidence in relation to that issue.

15. I accept the submissions of the father that it is important that the child be supported, encouraged and given the opportunity to develop a positive appreciation of her indigenous culture and to form close relationships with her extended indigenous family.

16. I accept the evidence of the father’s sister that it is important for the child to spend time with her indigenous family so that she will come to know them and they will come to know her and she will feel herself a member of the family of her indigenous relatives.

17. I accept that the mother understands the importance of the child forming strong relationships with her indigenous family. The mother has purchased books for the child about the L people, written by L elders, and has used CDs to teach the child L words.

18. I also accept that only an L person can truly teach the child about her L heritage.

19. The father has not paid child support for the child since 15 April 2014. The current assessment is $173 per month. Currently the entire financial responsibility for the child’s care falls upon the mother who herself is in receipt of a Centrelink benefit and is reliant upon her parents for accommodation.

20. Whilst I accept that it is appropriate to attempt to introduce the child to overnight time with her father, I accept that the proposal of the mother, that is that one night overnight in a seven day period, where the father sees the child during the day, would be an appropriate period. It cannot realistically be suggested that it is appropriate for the child to be separated from her mother for longer than one night in circumstances where this has never been the case and where she has spent such limited time with her father.

21. The father, who is a professional, lives near Darwin. In support of his application for leave to review the decision of the Principal Registrar out of time, the father relied upon receipt of Centrelink benefits. No other evidence was filed by the father in relation to his financial position. The Court has no evidence about his income from employment or any other sources except his statements from the bar table that he was unable to afford to facilitate the child’s coming to Darwin in April 2015 and that he is unable to assist the mother in relation to accommodation.

22. There was no evidence before the Court, in the father’s case, to demonstrate how it was practically possible for the child to be transported to C Community, with or without the mother, for the smoking ceremony for the period of at least 11 days which is required.

23. There was no evidence before the Court about the way in which the mother could be accommodated in Darwin, in C Community or in Town T.

24. From the bar table the father said that it would also be possible for the smoking ceremony to take place in Alice Springs or in Darwin, but there is no evidence in the father’s case about when that might occur, in what circumstances it might occur, who might be permitted to be present, and how financially it was to be arranged.

25. Neither of the parents is financially able to fund the costs of the child’s travel and appropriate accommodation for the period required for the smoking ceremony.

26. Neither of the parents is able to fund the costs of accommodation for the child and the mother in Darwin to enable the child to spend time with the father.

27. Sadly, in the circumstances of this case, the only practical way for the child to spend time with her father is for the father to travel to Sydney.

28. The mother proposes orders that would facilitate the child’s spending time with the father in Darwin if he can finance travel and accommodation and it is appropriate that he should have that opportunity available.

29. The orders which are sought by the father cannot practically be implemented as neither party can afford the cost.

30. The orders proposed by the mother, with the addition of the arrangement for Skype contact with the extended family, are those which best serve the child’s interests.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 5 June 2015.

Associate: 

Date:  5 June 2015