Lokare & Baum

In the Family Court of Australia, McClelland DCJ considered applications by a mother and father for final parenting orders concerning their Aboriginal child, Z. The mother sought sole parental responsibility and orders for the child to live with her and spend graduating time with the father. The father sought shared parental responsibility and equal time. The Independent Children’s Lawyer recommended sole parental responsibility for the mother, except regarding the child's Aboriginal culture and development, and graduating time with the father. The court also addressed property settlement orders pursuant to s 90SM of the Family Law Act 1975 (Cth), with the wife seeking the sale of real estate and a significant percentage of the proceeds, along with lump sums for joint property expended by the husband and costs orders. The husband sought the allocation of his superannuation.

The court was required to determine the most appropriate parenting orders for Z, considering the child's best interests, including the mother's role as primary carer, the father's asserted failure to maintain a relationship and encourage cultural development, and the child's Aboriginal heritage. In relation to property, the court needed to assess the contributions of both parties to the relationship and post-separation, and to determine the division of assets, including real estate and superannuation, and address outstanding debts and costs orders.

McClelland DCJ found that the mother had supported the child's relationship with the father and had encouraged her Aboriginal cultural development and identity, contrary to the father's assertions. Consequently, the court ordered that the mother have sole parental responsibility for the child, except in relation to her Aboriginal culture and development, for which the parties would share responsibility. The child was ordered to live with the mother, with graduating time to be spent with the father, with detailed provisions for school terms, holidays, and cultural activities, including travel to the Northern Territory for the father to engage with his L family. In the property proceedings, the court ordered the sale of the parties' real property, with the wife to receive 72.5 per cent of the net proceeds after payment of the mortgage and a debt to her parents. The husband was also ordered to pay sums referable to costs orders made in favour of the wife and to reimburse the wife for joint property expended on legal fees. The husband was to retain his superannuation.