Lynch and Hagen (No 2)
[2020] FamCA 727
•3 September 2020
FAMILY COURT OF AUSTRALIA
| LYNCH & HAGEN (NO. 2) | [2020] FamCA 727 |
| FAMILY LAW – JURISDICTION – Whether an Australian court is better placed than a Norwegian court to assess the best interests of an Aboriginal child – Where Australian jurisprudence has a singular body of expertise on Aboriginal culture and society – Orders made to request jurisdiction. |
| Children Act 1981 (Norway) Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children done at The Hague on 19 October 1996, HCCH 34 [2003] ATS 19 (entered into force for Australia 1 August 2003) Arts 8, 9, 15(2) |
| Backford & Backford and Anor [2017] FamCAFC 1 Ralph, Stephen, “The Best Interest of the Aboriginal Child in Family Law Proceedings” (1998) 12(2) Australian Journal of Family Law 140 |
| APPLICANT: | Ms Lynch |
| RESPONDENT: | Mr Hagen |
| FILE NUMBER: | SYC | 1817 | of | 2020 |
| DATE DELIVERED: | 3 September 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 3 July 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Goodchild |
| SOLICITOR FOR THE APPLICANT: | Women's Legal Service NSW |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | The Norton Law Group |
Orders
IT IS ORDERED
That pursuant to section 111CG(2)(a) of the Family Law Act 1975 (Cth) the Commonwealth Central Authority request the competent authority in Norway to agree to the Family Court of Australia’s assuming jurisdiction to take a Commonwealth personal protection measure relating to the child the child born on … 2016.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lynch & Hagen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1817 of 2020
| Ms Lynch |
Applicant
And
| Mr Hagen |
Respondent
REASONS FOR JUDGMENT
Ms Lynch (“the mother”) and Mr Hagen (“the father”) are the parents of X (“the child”) who was born on … 2016.
The mother is an Aboriginal woman. Her paternal family are B people and her maternal family are C people. As the mother is Aboriginal, so too is the child.
The father is Norwegian and came to Australia to study.
The parents met as students at university in Sydney.
In 2018, the parents and the child moved to live in Norway.
The mother left Norway and returned to Australia on 24 January 2020, initially for a planned visit to her family, leaving the child with the father who would not agree to the mother’s taking her to Australia.
On 23 February 2020, the mother wrote to the father stating that she would not return to Norway.
There are proceedings in relation to parenting on foot in Norway and in Australia.
On 24 July 2020, I delivered reasons and made a declaration that the child is habitually resident in Norway.
Consequent upon that declaration, the mother asked the Court to make a request under Article 9 of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children (“the Convention”).
Article 9 of the Convention is imported into Australian law by the provisions of Division XIIIAA of the Family Law Act 1975 (Cth) (“the Family Law Act”), the relevant provisions of which are set out below:
111CG If a court is asked to assume jurisdiction
(1)A court may, if it considers that it is in the child’s best interests, accept or reject a request made under Article 8 of the Child Protection Convention by, or at the invitation of, a competent authority of a Convention country for the court to assume jurisdiction to take a Commonwealth personal protection measure relating to the child.
(2)A court may order, or invite the parties to proceedings before the court to ask, the Commonwealth central authority to do both of the following in a way that the Commonwealth central authority considers appropriate:
(a)to request, under Article 9 of the Child Protection Convention, that a competent authority of a Convention country agree to the court assuming jurisdiction to take a Commonwealth personal protection measure relating to the child;
(b)to report to the court about the outcome of the request.
(3)The court may only make the order or issue the invitation under subsection (2) if it considers that it is better placed than the competent authority to assess the child’s best interests.
Because the effect of making a request is to impose an obligation to act upon the Commonwealth Central Authority (“the Central Authority”), I requested the registrar to provide a copy of the relevant applications and affidavits to the Central Authority asking if they wished to be heard or to participate in any way in the proceedings and indicating that the matter would be listed before me for mention on 26 August 2020.
The registrar received a response on 13 August 2020 indicating they would be willing to assist the Court in engaging the Norwegian authorities but did not wish to appear or be heard in relation to the matter.
SHOULD THE COURT REQUEST JURISDICTION?
Article 8 of the Convention would allow the Court in Norway to request the Family Court of Australia to assume jurisdiction. However, no such request has been made.
The provisions of Article 9 of the Convention have been embodied in Australian domestic law by the provisions of s 111CG(2) and (3) of the Family Law Act and by the Family Law (Child Protection) Regulations 2003. It is the wording of those sections of the Act, not the wording of Article 9, which must be considered.
Subsections 111CG(2) and (3) give no guidance about the circumstances precedent to consideration of such a request and it seems reasonable to refer to the provisions of the Convention, where some guidance about those matters is provided in Article 8(2) in the following terms:
The Contracting States whose authorities may be addressed as provided in the preceding paragraph are
a) a State of which the child is a national,
b) a State in which property of the child is located,
c) a State whose authorities are seised of an application for divorce or legal separation of the child's parents, or for annulment of their marriage,
d) a State with which the child has a substantial connection.
Article 9 of the Convention commences:
If the authorities of a Contracting State referred to in Article 8, paragraph 2, consider that they are better placed in the particular case to assess the child's best interests…
The child is an Australian citizen and a Norwegian citizen.
The mother is present in Australia. The father is present in Norway.
The child has a substantial connection with Australia because:
· she is an Aboriginal child;
· she is an Australian citizen;
· she was born in Australia and lived in Australia for the first half of her life; and
· her mother is an Australian citizen and habitually resident in Australia.
The question to be determined is whether the Family Court of Australia is better placed than the Norwegian Court to assess the child’s best interests.
Only if I determine that an Australian court is “better placed” can a request be made to the Norwegian Court to allow the Australian court to exercise jurisdiction.
I do not consider that practical matters are determinative. In the current climate of severely restricted travel due to COVID-19, it is likely that the matter will proceed by one party appearing remotely unless the hearing is postponed for a significant time. In either jurisdiction, one party will be disadvantaged and the other advantaged.
Were it not for the fact that this child is an Aboriginal child, I would adopt the statement of Baker J in M & L (Children) [2016] EWHC 2535 (Fam):
33. In my judgment, the English and Norwegian courts are equally competent in general terms to determine issues about children. Each court operates in a sophisticated and advanced legal system manned by experienced judges who are manifestly capable of making decisions in this type of case. Although there are some differences in the respective processes, and each court has advantages which the other does not, overall there is no substantial difference. Comparisons are odious. As Mostyn J observed in Re T [2013] EWHC 521 (Fam) at paragraph 37, the court
"should not descend to some kind of divisive value judgment about the laws and procedures of our European neighbours"
and as Sir James Munby P added in Re E [[2014] EWHC 6 (Fam)], at paragraph 20,
"beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and apply the same insights and approaches as those we are familiar with."
The law applicable in Norway in relation to parenting decisions is found in the Children Act 1981 (“the Children Act”).
A copy of the Children Act was tendered in the mother’s case and it demonstrates that, to use the words of Sir James Munby referred to above, the courts in Norway are engaged in the same task, using the same tools and approaches as the Family Court of Australia.
Relevantly the Children Act contains the following provisions:
Section 30. Meaning of parental responsibility
The child is entitled to care and consideration from those who have parental responsibility. These persons have the right and the duty to take decisions for the child in personal matters within the limits set by sections 31 to 33. If the parents have joint parental responsibility, they shall take decisions together. Parental responsibility shall be exercised on the basis of the child’s interests and needs.
Those who have parental responsibility are under obligation to bring up and maintain the child properly. They shall ensure that the child receives an education according to his or her ability and aptitude.
The child must not be subjected to violence or in any other way be treated so as to harm or endanger his or her mental or physical health. This shall also apply when violence is carried out in connection with the child’s upbringing. Use of violence and frightening or annoying behaviour or other inconsiderate conduct towards the child is prohibited.
…
Section 42. The child’s right of access to the parents
The child has right of access to both parents even if they live apart. The parents have mutual responsibility for implementing the right of access.
The child is entitled to the care and consideration of the parent who is with the child. The parent who is with the child may take decisions concerning the care of the child during access.
…
Section 48. The best interests of the child
Decisions on parental responsibility, international relocation, custody and access, and procedure in such matters, shall first and foremost have regard for the best interests of the child.
When making such decisions, regard shall be paid to ensuring that the child is not subjected to violence or in any other way treated in such a manner as to impair or endanger his or her physical or mental health.
(emphasis in the original)
Section 61(1) of the Children Act contains the provisions for preparation for trial including the appointment of a court expert to report on matters in issue.
Section 61(5) makes provision for the appointment of a lawyer to represent the child in appropriate circumstances.
However, this child is an Aboriginal child.
On behalf of the mother it is submitted that:
The Child’s circumstances are unique and unusual as the Child is an Australian Aboriginal child.
Australian common law has established that the Crown has a unique obligation to protect Aboriginal people…
…
The Australian Courts have a unique and positive obligation of protection to the child to ensure her best interests are met. The Australian Courts are in a unique position to assess this, incomparable and unparalleled to any other jurisdiction. The Applicant Mother submits that the Australian Courts are compelled to determine this case due to the Crown’s unique obligation to protect Aboriginal people. This obligation cannot or in the alternative should not be ceded to another jurisdiction.
The mother relies on the statements of Nettle J in the High Court of Australia in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia (2020) 375 ALR 597 at [272] which, although obiter, have persuasive authority. His Honour stated:
… with its recognition of Aboriginal societies as the source and sanctuary of traditional laws and customs, the common law must be taken always to have comprehended the unique obligation of protection owed by the Crown to those societies and to each member in his or her capacity as such.
Whilst the members of the High Court were not unanimous in relation to the specific issue to be decided, and the High Court was there dealing with a different issue relating to Aboriginal people, judges in both the majority and the minority discussed the common law in relation to Aboriginality.
The Chief Justice stated:
[28] …
The nature of the connection to land and waters ascertained by reference to traditional laws and customs has been further explained in cases subsequent to Mabo [No 2]. It has been described as being not only material or physical, but also spiritual and cultural.
[29]It may be accepted that the connection spoken of in these cases is special, unique even. Its importance at a personal and community level to the members of an Aboriginal group cannot be denied…
…
[32]Because the cases accept that the connection spoken of is spiritual and cultural, it may be said that the common law accepts that members of an Aboriginal group may feel a sense of "belonging" to the land in question and that others may perceive them to "belong" to the land.
(footnotes omitted)
Gordon J stated:
[289] The fundamental premise from which the decision in Mabo v Queensland [No 2] proceeds – the deeper truth – is that the Indigenous peoples of Australia are the first peoples of this country, and the connection between the Indigenous peoples of Australia and the land and waters that now make up the territory of Australia was not severed or extinguished by European "settlement".
[290]That connection is spiritual or metaphysical: "[t]here is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole". And the connection that persisted, and continues to persist, is a connection determined according to Indigenous laws acknowledged, and the traditional customs observed, by the Indigenous peoples.
(emphasis in the original, footnotes omitted)
Edelman J stated:
[391]…The identity of Aboriginal people, whether citizens or non-citizens, is shaped by a fundamental spiritual and cultural sense of belonging to Australia.
…
[451] Native title rights and interests require a continuing connection with particular land. However, underlying that particular connection is the general spiritual and cultural connection that Aboriginal people have had with the land of Australia for tens of thousands of years. In other words, underlying a connection to any particular land is a general, "fundamental truth ... an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole". Sometimes events, including the cessation of the existence of a particular Aboriginal society, cause the loss of native title rights to land. But the loss of those rights to, and the relationship with, particular land, or even the effluxion of particular Aboriginal societies, does not extinguish the powerful spiritual and cultural connections Aboriginal people have generally with the lands of Australia. Those connections are inextricably part of Aboriginal identity as members of the broader community of the first people of the Australian land generally. The very words "Aboriginal" and "indigenous", aborigine or "from the beginning", enunciate a historical, and original, connection with the land of Australia generally. The sense of identity that ties Aboriginal people to Australia is an underlying fundamental truth that cannot be altered or deemed not to exist by legislation in the same way that changing legislative definitions of citizenship cannot alter the fundamental truth underlying identity that is shaped by the core combined norms that metaphorically tie a child to Australia by birth and parentage.
(emphasis in the original, footnotes omitted)
There are also specific statutory provisions in the Family Law Act relating to the best interests of Aboriginal children.
The Objects and Principles underlying the Family Law Act include, at s 60B(3):
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
Section 60CC, which prescribes “How a court determines what is in a child’s best interests”, includes at s60CC(3)(h):
If the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Section 60CC(6) provides:
For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
Section 61F provides:
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 have regard to any kinship obligations, and child‑rearing practices, of the child’s Aboriginal or Torres Strait Islander culture.
The operation of s 61F was explained by the Full Court in Donnell & Dovey (2010) FLC 93-428 (“Donnell & Dovey”) at 85,595:
183. It will be seen that s 61F, in the form ultimately enacted, applies to all cases involving an Aboriginal or Torres Strait Islander child. In proceedings under Part VII relating to such a child, the court must have regard to the child-rearing practices of the relevant Aboriginal or Torres Strait Islander culture. Failure to take account of that provision would, in our view, ordinarily amount to appealable error. (For an illustration of a case in which s 61F was properly treated as an “integral” part of the decision making process see the judgment of Young J in Davis v Davis (2008) 38 Fam LR 671.)
184. Section 61F does not say that the outcome will be determined by application of the relevant kinship obligations and child-rearing practices, but the court must have regard to them. In our view, this can only be seen to be done if findings are made regarding those obligations/practices and adequate reasons are given to explain why a decision has been made that either follows or departs from them. We accept this can be done without the court making express reference to s 61F, but we consider it would be desirable that the section is at least mentioned, if not discussed.
(emphasis in the original)
Whilst both the Norwegian Court and the Family Court of Australia have the facility to appoint an expert to report in relation to matters in issue, the Australian expert will be bound by the Australian Standards of Practice for Family Assessments and Reporting issued in February 2015. Relevantly, those Standards provide, under the heading “Cultural issues” at Paragraph 34 and following:
Cultural issues
34.Family assessors must ensure that all parties and relevant persons who need to be included in the assessment are able to do so without restriction due to language, culture or disability.
1. Specific provisions may need to be made for Aboriginal or Torres Strait Islander persons to ensure they are able to fully participate in the assessment process.
2. Arrangement should be made to ensure that any party who wishes to or needs to have an interpreter is able to do so and that the interpreter is suitable and appropriately qualified for the purpose.
3. The arrangements for the assessment should be, as far as is practicable, sensitive to the cultural needs of families.
4. Family assessors should make enquires with Indigenous parties as to whether the engagement of an Indigenous consultant or advisor is needed to assist the family members in the process, and to advise the assessor about culturally appropriate interview practices.
5. Consideration should be given to the impact of requiring Indigenous families or parties who were refugees from authoritarian regimes to attend interviews in a court building, and the possible benefits of other locations for interviews, should be considered.
6. The use of any interpreters or cultural advisors, and their role in the assessment process, must be included in the assessor’s report.
35.As a minimum standard, a family assessment in which one or more party identifies as Aboriginal or Torres Strait Islander should contain the following:
· a description of the Indigenous background of the party (including whether one or both of the party’s parents are Indigenous, as well as any tribal affiliations, if known)
· an indication of whether the child has current and active involvement with any extended Indigenous family
· a description of the party’s connection, if any, to their local Indigenous community e.g. relationships with key local figures, use of Indigenous agencies and services, participation in local cultural events, etc.
· a description of both parties’ views of the significance of the child’s Aboriginality and the extent to which this is an issue that the Court needs to consider in determining the matter
· an assessment of the extent to which the child identifies (or is identified) as an Aboriginal or Torres Strait Islander
· an assessment of the capacity of both parents to provide the support and opportunity for the child to explore the full extent of their Indigenous heritage, consistent with the child’s age, developmental level and wishes
· an assessment of the capacity of both parents to foster a positive sense of Indigenous cultural identity, and
· an assessment of the likely impact on the child of being raised in a non-Indigenous family in circumstances where the Court is asked to make an order that the child lives with a non-Indigenous parent.
oA family assessment in which one or more party identifies significant cultural issues should contain the following:
· a description of the cultural background of the parties
· an indication of whether the child has current and active involvement with the cultural backgrounds
· a description of the party’s active connection, if any, to that community or extended family
· a description of both parties’ views of the significance of the child’s culture and the extent to which this is an issue that the Court needs to consider in determining the matter
· an assessment of the extent to which the child identifies with the parents’ culture
· an assessment of the capacity of both parents to provide the support and opportunity for the child to explore the full extent of their cultural heritage, consistent with the child’s age, developmental level and wishes, and
· an assessment of the capacity of both parents to foster a positive sense of that cultural identity.
The significance attached to Aboriginal cultural considerations has been considered in a number of cases.
In Donnell & Dovey, the Full Court stated at 84,622:
322.In our view, judicial officers dealing with cases involving an indigenous child should be expected to have a basic level of understanding of indigenous culture, at least to the extent that this can be found in what the Full Court in B and R [(1995) FLC 92-636] called “readily accessible public information”. It should not be expected that parties must approach the court on the basis that the presiding judicial officer comes to the case with a “blank canvas”.
323.It is also to be expected, in our view, that judicial officers will be familiar with the reported decisions of the Full Court dealing with indigenous children, as well as the policy considerations that have informed the significant changes made to the legislation pertaining to indigenous children.
324.Accordingly, judicial officers should be aware of (or remind themselves of) the matters set out in the extracts below from the article by Professor John Dewar (former Chair of the Family Law Council) entitled “Indigenous Children and Family Law” published in (1997) 19(2) Adelaide Law Review 217.
In defining kinship, or its conceptions of relationship, Australian family law reflects its Anglo‑European heritage. So, when it comes to constructing legal relationships around children, the law tends to assume a nuclear model: that is, that a child will have two parents for legal purposes, generally those who are its biological mother and father. These are the people who automatically have legal status with respect to the child, a status that they never technically lose. Thus, s61C of the Family Law Act 1975 (Cth) states that each parent of a child has parental responsibility for it, and that this responsibility survives any changes in the relationship between the parents. “Parental responsibility” for the child includes all duties, powers, responsibilities and authority a parent might have in relation to a child. The recent changes to the Family Law Act, which introduced the concept of shared and continuing parental responsibility between biological parents, have, if anything, served further to entrench this nuclear model in the law. Thus, according to the principles underlying the new Part VII, contained in s60B, children have a right to know and be cared for by both their parents, but not by other significant figures in their lives; and parents (but not others) share duties and responsibilities for the care, welfare and development of their children, and should agree about their children’s future.
…
Other departures from the nuclear model can be found in the s68F(2) checklist, which requires a court to take account of a child’s relationships with persons other than its parents in making decisions about the child’s best interests. Thus, in addition to paragraph (f) already discussed, paragraph (b) refers to “the names of the relationship of the child with each of the child’s parents and with other persons”; paragraph (c)ii) refers to “the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from … any other child, or other person, with whom he or she has been living”; and paragraph (e), which talks of “the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs”. Finally, the statement of objects underlying Part VII talks of the child’s right of contact with parents and with others “significant to their care, welfare and development”. However, each of these provisions has to be seen as a qualification of, or as an exception to, a basically nuclear, two‑parent model of parent‑child relations.
In general, then, the Family Law Act and the child support regime enshrine particular assumptions about relationships between children and parents. While these may seem natural to many members of the dominant European culture, they become, in the context of Indigenous cultures, a serious barrier to the sort of increased flexibility to which the [Australian Law Reform Commission] refers. In the case of support obligations in particular, the current law amounts to a clear breach of the principle of substantive equality, stated to be a cornerstone of multiculturalism, in the sense that the current law “unintentionally act[s] to disadvantage certain groups of Australians”. Yet it is the supposed naturalness of these assumptions, and the powerful ideology of the nuclear family surrounding them, that renders them invisible to many. From the point of view of the Indigenous community in particular, this nuclear model doesn’t fit at all well with Indigenous child-rearing structures or practices.
…
Although practices vary between Indigenous groups, it seems generally true that conceptions of kinship and of good child‑raising practice are significantly different from the nuclear model. Kinship relations are constructed in different ways from Western kinship systems, with the term “mother”, for example, often being used to cover a much wider group of people than the biological mother. Kinship systems amongst many Indigenous groups are classificatory, which means that a much larger proportion of the social group, perhaps all members of the group, are accounted for in terms of kinship. Western kinship systems, by contrast, consist of a much narrower range of relations. As Bringing them Home says: “By privileging parents and relegating the rights of other family members, the Australian family law system conflicts with Aboriginal child‑rearing values”. In addition, child‑rearing practices often differ markedly: whereas non‑Indigenous culture tends to emphasise permanence and stability as positives for children, Indigenous culture sees movement of children, either geographically or between or within kinship groups, as beneficial. As Bringing them Home argues, “by privileging stability of residence, the system similarly entrenches a bias against Aboriginal practice of mobility of children amongst responsible adults and their households”.
In Donnell & Dovey, the Full Court cited an article by Mr Stephen Ralph, who at the time was the Director of Court Counselling in the Family Court of Australia in Darwin. He was also responsible for overseeing the Family Court’s Indigenous Family Liaison program. His article, entitled “The Best Interest of the Aboriginal Child in Family Law Proceedings”, was published in (1998) 12(2) Australian Journal of Family Law 140. The following are the extracts which seem to us to have particular relevance to the present proceedings:
Family assessment as employed generally by counsellors is stepped in the traditions of western psychology, with its emphasis upon the individual, and based upon modern Anglo‑European notions of social and family organisation. The prominence of psychological theory and clinical practice based upon the study of small family groups and individual needs runs counter, however, to an effective understanding of the collectivist nature of Aboriginal family life. Of particular concern is the possibility that counsellors who have limited knowledge or experience in working with Aboriginal families may produce reports that do not adequately address the issue of the child’s cultural identity and consequently the report may fail to attend to vital cultural issues affecting the child’s best interests. This possible deficit in cross‑cultural understanding is one of the issues that the court’s cultural awareness programme seeks to address both through the appointment of Aboriginal Family Consultants and through training of counsellors in this area.
In contrast to the counsellor’s view Aboriginal people are likely to argue that children have the ability to effectively attach themselves to many carers in the course of their “growing up”. In many indigenous cultures multiple, serial attachments are the norm and are not regarded as necessarily harmful to the child’s development and long‑term adjustment.
The fluid nature of Aboriginal child‑care arrangements and associated parenting practices was recently noted in an anthropologist’s report to the court regarding an Aboriginal child. The report stated:
It is not at all unusual for Aboriginal children to move freely, even frequently (between kin and community). These movements … are seen as important ways in which children acquire their understanding of the ways in which kinship and country relationships are lived out. They are thus not a sign of disruption as they might be interpreted by non‑Aboriginal people but are an important factor in socialising children.
The Aboriginal perspective is based upon a collectivist view of family and social life that sees responsibility for the growing up of children invested in many people. According to this view children come to trust in the capacity and commitment of a multitude of people to care for them and nurture them through childhood and into adulthood. By this means children come to take their place in Aboriginal society where responsibilities and obligation to family and kin are deeply rooted and pervasive.
From this perspective the disruption caused to a child’s primary attachment, for example, is out‑weighed by the benefits arising from the child’s exposure to a broader and deeper network of family and kin to whom the child will eventually form strong attachments. The implicit expectation is that children will grow up with maximum exposure to their heritage and take their place within Aboriginal society. From the stand‑point of a traditional Aboriginal family living in a rural or remote community this change would ensure the family’s spiritual and ceremonial obligations to the country would be maintained. In this setting cultural and family considerations are highly important in determining the child’s best interests. For Aboriginal people a desirable outcome of such deliberations is the preservation and promotion of Aboriginal culture, particularly its transmission to the next generation.
Consideration of the child’s best interests from an Aboriginal perspective is likely to be influenced by the broader consideration of how Aboriginal culture and family life is to be promoted. That is, individual and collective needs are interdependent and as such the needs of the individual child do not take precedence over the needs of the collective. For Aboriginal people, whose culture has been ravaged by colonisation and dispossession, the struggle to preserve and maintain cultural integrity is on‑going and of the utmost importance. In many instances this may mean that the interests of the individual or child may be a subordinate consideration to that of the best interest of the collective group. This viewpoint does not sit comfortably though beside the strict adherence of the Family Law Act to the paramount consideration of the child’s best interests.
(footnotes omitted)
It must, however, be strongly emphasised that the matters relating to the child’s Aboriginal culture are one of a suite of mandated considerations.
In Backford & Backford and Anor [2017] FamCAFC 1 the Full Court stated:
The mother contends that insufficient weight was given to s 60CC(3)(h) and s 60CC(6) of the Act, which emphasise the rights of Aboriginal children to maintain a connection with their culture and to have the opportunity to explore and develop a positive appreciation of it. However, while recognising the importance of these matters, the Act does not mandate that orders must be made which protect these rights. Instead, s 60CA provides that “in deciding whether to make a particular parenting order … a court must regard the best interests of the child as the paramount consideration”. This involves a holistic assessment and balancing of all of the child’s rights and needs.
The Act directs the court to have regard to a wide variety of matters when determining what is in a child’s best interests. These are divided by s 60CC into “primary considerations” and “additional considerations”. One of the two primary considerations is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. The Act requires this consideration be given greater weight than the other “primary consideration”, namely “the benefit to the child of having a meaningful relationship with both of the child’s parents”. While the Act is silent as to the weight to be given to the “additional considerations”, the clear intent of the legislature is that child safety is a matter of great importance.
Ultimately, the Family Law Act mandates that the court must make an order that is in the best interests of the child, taking into account all of the matters to which reference is made in s 60CC.
Article 15 (2) of the Convention provides:
However, in so far as the protection of the person or the property of the child requires, they may exceptionally apply or take into consideration the law of another State with which the situation has a substantial connection.
Section 111CY of the Family Law Act permits either the court in Australia or the Central Authority to “give information” to the court in Norway.
Thus the court in Norway may apply or take into consideration Australian law in dealing with the parenting arrangements for the child and, at the request of the court in Norway, any information relevant to the child’s welfare or any other issue to be determined, can be provided to the Norwegian Court by the Central Authority.
I accept that a court in Norway might have regard to the jurisprudence which has developed in Australia in relation to Aboriginal culture and societies but sitting behind that jurisprudence is a singular body of expertise derived from generations of evidence of the experience of Aboriginal people themselves, and of anthropologists and social scientists. It is that evidence of which the Norwegian Court might not be aware and in relation to which there might not be available experts to give evidence.
For those reasons I find that an Australian court is better placed to determine the best interests of an Aboriginal child and accordingly I will order that the Central Authority make the request of the Norwegian Court to agree to the Family Court of Australia’s assuming jurisdiction in this matter.
That request will be made by the Central Authority, as provided in s111CG(2) “in a way that the Commonwealth Central Authority considers appropriate” which may include, at the discretion of the Central Authority, “an exchange of views” with the appropriate authority in Norway.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 3 September 2020.
Associate:
Date: 03/09/2020
Key Legal Topics
Areas of Law
-
Family Law
-
Administrative Law
Legal Concepts
-
Jurisdiction
-
Procedural Fairness
-
Standing
-
Judicial Review
0
3
4