Matthews & Anor and Matthews
[2011] FamCA 982
FAMILY COURT OF AUSTRALIA
| MATTHEWS AND ANOR & MATTHEWS | [2011] FamCA 982 |
| FAMILY LAW – CHIILDREN - With whom a child lives – cultural issues – parenting orders – Kupai Omasker cultural practice of giving and receiving children – order for child to live with maternal aunt and her husband - order that maternal aunt and her husband have sole parental responsibility for the child |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61B, 61F, 64B | |
| Moses & Barton [2008] FamCA 590 | |
| 1st APPLICANT: | Ms S Matthews |
| 2nd APPLICANT | Mr B |
| RESPONDENT: | Ms Matthews |
| FILE NUMBER: | CSC | 64 | of | 2011 |
| DATE DELIVERED: | 22 December 2011 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 26 September 2011 |
REPRESENTATION
| COUNSEL FOR THE 1ST APPLICANT: | In person |
| SOLICITOR FOR THE 1ST APPLICANT: |
| COUNSEL FOR THE 2ND APPLICANT: | In person |
| SOLICITOR FOR THE 2ND APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: |
Orders
The child D born … 2005 (“the child”) live with Ms S Matthews and Mr B (“the applicants”).
The applicants have sole parental responsibility for the child.
That there be no contact between the child and Ms Matthews (“the respondent”) except as permitted by the applicants or either of them and excluding any extended family and social gatherings when the families might be together in line with the Region E customary practice of the giving and receiving of children.
Pursuant to s.65DA(2) and s.62B, 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.
This matter be removed from the list of cases requiring determination.
IT IS NOTED
The Court notes the information provided by Ms F.
IT IS DIRECTED
A transcript of the submissions be taken out and placed on the Court file.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment under the pseudonym Matthews and Anor & Matthews is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC64/2011
| Ms S Matthews |
First Applicant
And
| Mr B |
Second Applicant
And
Ms Matthews
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The culture of Region E includes the traditional practice of giving and receiving children within families and that is the circumstances of the child who is the subject of these proceedings and upon whom decisions must be made.[1]
[1] Moses & Barton [2008] FamCA 590 at paragraph 1.
In Moses and Barton [2008] FamCA 590 Moore J, at paragraph 3, described the traditional practice as:-
… the permanent giving of a child from one family to the other by mutual consent, usually within the extended family. The child takes the surname of the receiving family and is brought up as their child. It is a widespread practice in [Region E] families and is integral to [Region E] society and the development of social and economic bonds between families. It is regarded as strengthening the social structure through kinship and reciprocity and is strongly connected to wider aspects of customary laws which define the identity of Region E [people]. …
These proceeding involved an application filed in February 2011 by Ms S Matthews and Mr B (the adoptive parents) in respect of the child D aged 6. The adoptive parents asked the Court to make orders; that the child live with them, giving them parental responsibility for the child and that there be no contact between the child and his birth mother Ms Matthews, Ms S Matthew’s sister, except in circumstances where there were extended family and social gatherings when the families might be together in line with the Region E customary practice of the giving and receiving of children. Their application seeks to put in place an effective legal structure by way of orders under the Family Law Act 1975 (Cth) (“the Family Law Act”) reflecting the current arrangements for the child. Ms Matthews consents to the orders sought in their application.
It was agreed between the adoptive parents and Ms Matthews that they would be given the child to raise as their own in accordance with the Region E customary child rearing practice of giving and receiving children. In line with the culture of the people of Region E the child has lived with the adoptive parents since he was six months of age.
There was no exchange of money between the parties in respect of the arrangement. Ms Matthews says she was not “forced or coerced into her decision to give the child”[2] to the adoptive parents.
[2] At paragraph 49 of the Family Report dated the 20 July 2011.
When the application first came before me, I was concerned about the proposed parenting arrangements, including having regard to the legal and social needs for this child to know his parents and the culture and traditions of his biological families. I directed the preparation of a Family Report. That Report[3] was prepared and was in evidence before me when I considered the application. Ms F, a Region E native experienced in dealing with cultural matters, was present for the interviews conducted for the purposes of the Family Report. She was present in Court and gave evidence.
[3] Dated the 20 July 2011. All of the interviews which were conducted for the purposes of preparing the Report were done in the presence of an Indigenous Family Liaison Officer, Ms F, who is from Region E and who has experience dealing with cultural matters within the Region E, the Region G and mainland Australia.
THE ISSUES
There are no issues in dispute as all of the parties agree that the child should continue to live with the adoptive parents.
The only issue for me to determine is whether the orders sought by the adoptive parents are in the best interests of the child.
BACKGROUND
At the time of their application the adoptive parents were both 29 years of age. They are both in good health.
Ms Matthews is Ms S Matthew’s younger sister and is distantly related to Mr B. At the time of the adoptive parents’ application Ms Matthews was aged 27. Ms Matthews is in good health. Ms Matthews has two other children M, aged four, and N, aged three.
All of the parties to the proceedings identified as Region E from H Town (also commonly referred to as I Town).
In early 2006 the adoptive parents came to Ms Matthews and formally asked her for the child because they are unable to have any biological children of their own. Ms Matthews agreed because Ms S Matthews is her sister and the child would still be within their family.
D began spending weekends with the adoptive parents and became used to being in their care. His time with the adoptive parents was extended to a week after which he remained in their care. The child was approximately six months old at the time.
The adoptive parents were staying at B’s family home at E Town at the time the child was placed in their care.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act. This is a proceeding to which the provisions of Division 12A of Part VII of the Family Law Act applies.
The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Family Law Act provides that this can be done by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles set out in s 60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each parent of a child has complete but several parental responsibility for their child pursuant to s 61C of the Family Law Act. This is subject to any court order and must be considered in the light of the so-called presumption arising out of the operation of s 61DA of the Family Law Act. This section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[4] for the child, subject to section 61DA.
[4] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
If the presumption is not rebutted and it is in the child’s best interest a court must make an order for equal shared parental responsibility. Logically, if the presumption is rebutted under 61DA(2) but a Court determines that it is in a child’s best interest for an order for an order for equal shared parental responsibility, it should be made.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC.
The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person is determined (see s 64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances an order for equal or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
How a court determines what is in the best interests of a child is set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two-tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. Part of s 60CC reads as follows:-
Primary considerations
(2) The primary considerations are:-
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:-
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Region Eer child:
(i)the child’s right to enjoy his or her Aboriginal or Region Eer culture (including the right to enjoy that culture with other people who share that culture);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
A court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A court should consider each of the additional considerations separately, then have regard to all of the matters set out in s 60CC (including subsections 4 and 4A) and in the light of those factors, weigh up questions of parental responsibility, face to face time and communication.
In that evaluation, if there is to be an order for equal shared parental responsibility (whether arising pursuant to the presumption or otherwise), the Court must consider:-
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.[5]
[5] MRR v GR [2010] HCA 4.
In the circumstances of this case, the adoptive parents have made their application to the Family Court so that orders can be made about parental responsibility and where the child should live.
Section 65D of the Family Law Act enables a court, subject to s 61DA and Part VII of the Act, to make such parenting orders as it thinks proper.
Section 61B of the Family Law Act defines parental responsibility to be “all the duties power, responsibilities and authority which, by law, parents have in relation to children”. Orders made by this Court can only confer parental responsibility for children who have not yet attained 18 years of age.[6]
[6] Section 61C of the Act.
The adoptive parents are not making their application for parenting orders on the basis of either of them being a parent of the child. Rather they make their application on the grounds that they have an interest in his welfare and it is on that basis that I approached the making of the orders sought by them.
Section 64B(2) of the Family Law Act sets out the matters which can be dealt with by a parenting order. They include the persons with whom the child is to live, the time a child is to spend with another person or other persons and the allocation of parental responsibility for a child.
The catch-all in section 64B is that the court can make a parenting order that provides for any aspect of care, welfare and development of a child or any aspect of parental responsibility of the child.[7]
[7] Wilkie and Anor & Mirkja [2011] FamCA 667 at paragraph 12.
Section 64 further provides that the persons referred to in the section have the same entitlements and responsibilities if a parenting order is made in their favour, regardless of whether or not they are parents of the child.
Although they may not be the biological parents of the child, the adoptive parents will have all of the rights and responsibilities that the Family Law Act could confer upon them, as the child’s parents.
Section 64 provides that a parenting order can be made in favour of a person who is not the parent of a child. Section 65D says that an order may be applied for by “any other person concerned with the care, welfare and development of the child” and it is upon this basis upon which the adoptive parents make their application.
I am satisfied that this Court has jurisdiction to make an order relating to the child under the Family Law Act. I now need to consider the s 60CC factors. In that regard I have considered the application of the facts to the relevant factors set out in section 60CC of the Family Law Act. “To that end I am aware of the comments made by the Full Court in Albridge & Keaton [2009] FamCAFC 229”.[8] I am also aware of the comments made by the Full Court in Donnell & Dovey [2010] FamCAFC 15. In this case the Full Court discussed the application of s 60CC(3) in cases involving a non-parents and said … “in a case involving a non-parent who may have played and seeks to play a significant role in a child’s life) it would seem essential to address that persons willingness and ability to facilitate the relationship between the child and the child’s parent(s).”[9]
[8] Lowe & Barry and Anor [2011] FamCA 625 at paragraph 49.
[9] At paragraph 97.
They go on to say:-
98.Anxious to address this factor, some judicial officers have treated the non-parent as a parent, or as if a parent, when addressing s 60CC(3)(c). In the present case, the Federal Magistrate expressly noted that this factor refers only to parents but said he proposed to consider the provision nevertheless.
99.While we accept this approach has the benefit of grouping findings in a way that provides an easy flow to the judgment, it has become apparent that it can also give rise to suggestions of error. The appearance of error can be avoided by a simple means when addressing factors such as ss 60CC(3)(c) and (e), which are referable only to a “parent”. To the extent that the subject matter is also relevant to a non-parent, discussion can be delayed until the point in the reasons where the judicial officer is addressing s 60CC(3)(m), which refers to “any other fact or circumstance that the court thinks is relevant”.
Section 60CC Factors
Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child's parents;
In their application the adoptive parents propose that there be no contact between the child and Ms Matthews, except in circumstances where there were extended family and social gatherings when the families might be together in line with Region E customary practice of the giving and receiving of children. I was concerned about this because one of factors which the Court need to consider in making any order is the befefit to the child of having a meaningful relationship with both of the child’s parents.
However, at the time the Family Report was prepared Ms S Matthews, B, the child and Ms Matthews were all living at the maternal grandmother, Ms C Matthews’ home. At the time of the hearing Ms S Matthews , the child and Ms Matthews were at I Town observing a customary practice, the tombstone unveiling, in respect of the death of the sister’s father. It is apparent that the child does and will spend time with Ms Matthews.
The child’s biological father is unknown. Ms F’s evidence was that she had spoken with the parties about the Court’s requirement that the father be a party to the proceedings and must agree with the orders being sought. Ms F said Ms Matthews was uncertain who the birth father was, apart from him being from Region E.
Ms F’s evidence was that it was not uncommon for Region E males, especially when they were not married, to agree with the arrangement proposed for the child because it is their custom and practice.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
During discussions with the family consultant the adoptive parents both reported that there had been arguments and that Ms S Matthews had received a fine for family violence, which I have discussed elsewhere in these reasons. They both reported that there had been no further incidents or arguments since the child had come into their care.
The family consultant, in her family report, said there were “no reports of the child having been exposed to any harm or domestic violence”.[10]
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
[10] At paragraph 97 of the Family Report dated 20 July 2011.
The child is six years of age and he was not interviewed for the purposes of preparing the Family Report as it is not in accordance with cultural practice. The family consultant noted no objection to a continuation of the current regime.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
In the Family Report the family consultant says the “information provided during the interviews suggest [the child] is settled within the Applicants [the adoptive parents] family unit and he identifies [Ms S Matthews] and [Mr B] as his mother and father.”[11]
[11] Ibid.
The parties all agree that since the child has been in the care of the adoptive parents that Ms Matthews has willingly forgone her role and rights as the child’s mother, and that as a consequence the child only knows the adoptive parents as his parents. Ms Matthews says that she and the child only interact as nephew and aunt.
The adoptive parents’ evidence was that they believed the child felt he belonged and was included as part of their family. B said his family shows the child love. He said the child is being taught that he is a “B” boy from the “B” family. Both The adoptive parents hope that the child will grow to identify himself as a Region E and as a “I Town” and “B” boy.
Section 60CC(3)(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from;
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The child has been in the adoptive parents’ care since he was six months old. If orders are made in terms of the application sought by the adoptive parents he will continue to do so.
As discussed elsewhere all the parties agree that since the child has been in the care of the adoptive parents that Ms Matthews has willingly forgone her role and rights as the child’s mother, and that as a consequence the child only knows the adoptive parents as his parents. Ms Matthews says that she and the child only interact as nephew and aunt.
Mrs Matthews, one of the verifiers who were interviewed for the purposes of the Family Report, said that the child treats … “[Ms Matthews’] two other children like his cousins”.[12]
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
[12] At paragraph 81 of the Family Report dated the 20 July 2011.
Given what the Full Court said in Donnell v Dovey (supra) I did not think this was a relevant consideration.
Section 60CC(3)(f) the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
During their discussions with the family consultant the adoptive parents were able to list a number of important responsibilities for meeting the needs of the child, such as teaching him right from wrong, ensuring his needs were met, taking him to school and encouraging him to do well. They also identified teaching the child about his culture including language, island songs, drawing, the preparation of food and attendance at tomb stone openings as being important responsibilities.
The adoptive parents reported to the family consultant that neither of them planned on telling the child about his traditional adoption prior to him becoming a man (between the ages of 18-21 years). Ms Matthews was in agreement with this approach as she said it “was in line with the cultural practice whereby children are generally not told until they are 21 years of age”.[13]
[13] Ibid at paragraph 52.
Ms S Matthews indicated that waiting until the child was 18 years or older to tell him of his traditional adoption meant he would be able to understand the practice. She said that when the time came to explain to the child that he was traditionally adopted she would:-
tell him [Ms Matthews] is his birth mother and this is their cultural tradition.[14]
[14] Ibid at paragraph 65.
The family consultant reported that Mr B said he would not adopt a negative approach with respect of Ms Matthews and would inform the child “that this is our cultural way”[15] and encourage him to ask his elders about the practice.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
[15] Ibid.
The child is of Region E descent. All of the parties to the proceedings identified as Region E from H Town and live in accordance with their cultural traditions.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I have had regard to this in the light of the current circumstances.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
In the Family Report, Ms S Matthews reported that she had received a fine for domestic violence after she had “smashed” Mr B’s car following an argument between them. Mr B also confirmed this incident during his interview with the family consultant. However, they both reported to the family consultant that they no longer argued and talked things through since the child had come into their care. Both the adoptive parents said that the child has not been exposed to any physical or verbal disputes between them.
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Ms Matthews consents to the orders sought by the adoptive parents in their application. Accordingly this is not a relevant consideration in these proceedings.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.
I have considered all of the relevant evidence before me.
Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
I have the considered these factors in the overall assessment of evidence before me.
It is of “crucial importance”[16] for a Court, when considering an application involving a Region E child, to have regard to s 61F of the Family Law Act which says:-
[16] Donnell v Dovey [2010] FamCAFC 15.
Section 61F Application to Aboriginal or Torres Strait Islander children
In:
(a) applying this Part [i.e. Part VII] 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.
In Donnoll v Dovey (supra), the Full Court discussed the purpose of s 61F’s implementation and said:-
179.Section 61F was inserted in the legislation by the Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth). The relevant Explanatory Memorandum noted that:
131. … The purpose of this provision is to ensure that the unique kinship obligations and child-rearing practices (such as the involvement of extended family) of Aboriginal and Torres Strait Islander culture are recognised by the court when making decisions about the parenting of an Aboriginal or Torres Strait Islander child. This provision is consistent with other amendments to facilitate greater involvement of extended family members in the lives of children. (our emphasis added)
180.The Explanatory Memorandum recorded that s 61F implemented the first recommendation made in the Family Law Council report, “Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze” (December 2004).
181.The Pathways Report had recommended that s 61C (which deals with allocation of parental responsibility) should acknowledge the “unique kinship obligations and child-rearing practices of indigenous culture”.
182.The Family Law Council opposed this recommendation and explained its view in these terms:
Council does not agree with the proposed amendment to s 61C given:
(i) the difficulty with deciding just who has parental responsibility under the proposed amendment, and
(ii) that it is not clear, even if it were possible to determine fairly easily who, other than the biological parent, had parental responsibility, whether that parental responsibility would include the whole bundle of parental responsibilities envisaged under the common law and reflected in the Family Law Act and other Acts.
This conclusion was reached notwithstanding that Council was sympathetic to, and agreed in principle with the intention of the proposed amendment. In the end, Council simply could not satisfy itself that there was a practicable way of amending s 61C so as to avoid uncertainty and preclude unintended consequences.
However, Council suggests that a new s 61F along similar lines to that envisaged by the Out of the Maze recommendation, might be inserted at the end of Div 2 of Pt VII of the Family Law Act, without attracting the adverse consequences attaching to the proposal as it stands.
While of undoubted symbolic importance, Council concluded that such an amendment would not of itself provide the functional recognition in the many spheres of government with which Aboriginal and Torres Strait Islander families must deal. Further investigation is required into how this functional recognition of kinship arrangements can be provided by the various arms and tiers of government.
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.
In the Family Report, the family consultant discussed the permanency of the agreement with the parties. At paragraphs 59 and 60 of her report she says:-
[Ms S Matthews] said [Ms Matthews] discussed her decision to give [the child] to her and [Mr B] with their mother (ie the child’s maternal grandmother) and their late uncle (i.e [Mr J]).
Both [the adoptive parents] reported ‘[Mr J]’ was a Justice of the Peace and he explained to [Ms Matthews] that the arrangement would be for good and a document was sighed and stamped signifying this agreement.
She goes on to say at paragraph 66:-
… [Ms Matthews] reported the arrangement was permanent because the Applicants really wanted a child to call their own. She confirmed the permanency of her decision had been explained to her by [Mr J] (i.e. … a Justice of the Peace).
The family consultant also interviewed Mr K Matthews, who is the head and the Elder of the maternal family In H Town, Ms C Matthews, who is the child’s maternal grandmother and Ms L Matthews, the child’s Maternal Aunt as part of her verifier interviews for the purposes determining whether the child has been given to the adoptive parents according to the “traditional adoption cultural practices” and preparing the Family Report. The family consultant reported that Mr K Matthews said:-[17]
both [Ms S Matthews] and [Ms Matthews] had come to him and told him about the child going from one sister to the other and he agreed with this traditional adoption. He reported the child was given to [the adoptive parents] when he was an infant. [Mr K Matthews] indicated the wider Family was aware of the agreement.
She said Mr K Matthews went on to say:-
.. [the child] was given permanently to [Ms S Matthews] and [Mr B]. He explained that this was the reason the Elders of the island and family authorised the traditional adoption.
[17] At paragraph 69 of the Family Report dated 20 July 2011.
The family consultant said that Ms C Matthews, the maternal grandmother, … “agreed the child could be given to [Ms S Matthews] so long as [he] stayed within the family”.[18] The family consultant said Ms C Matthews had initially considered taking the child in accordance with tradition, as he was Ms Matthews’ first born child, but said Ms C Matthews “felt for [Ms S Matthews]”[19] and agreed Ms S Matthews could have the child. Ms C Matthews said:-[20]
She was present when the child was given to [the adoptive parents] at her home in H Town. She confirmed the child was an infant at the time he was given to [Ms S Matthews ] and [Mr B].
[18] Ibid at paragraph 75.
[19] Ibid at paragraph 76.
[20] Ibid at paragraph 78.
The family consultant reported that Ms C Matthews had said she had explained to Ms Matthews that once the child was given to Ms S Matthews “then [Ms S Matthews] would grow up the child”.[21]
[21] Ibid at paragraph 79.
In respect of her interview with Ms L Matthews, the family consultant said Ms Matthews reported that “… [Ms Matthews] had been questioned as to whether she really wanted to give up the child because she could not ask for him back.”[22] Ms L Matthews said Ms Matthews understood and was told the terms before she had signed the paperwork to reflect the agreement.
[22] Ibid at paragraph 85.
I am satisfied that, in the circumstances of this case, it is in the best interests of the child that orders be made for the adoptive parents to have equal shared parental responsibility.
From the evidence, considering all of the circumstances and having regard to the primary factors but weighing those in terms of the traditional practice of Region E, I am satisfied that it is in the child’s best interest that an order be made that he live with the adoptive parents.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 22 December 2011.
Associate:
Date: 22 December 2011
0
6
0