Matthews & Anor and Matthews

The parties to this proceeding were Ms S Matthews and Mr B, the applicants, and Ms Matthews, the respondent. The dispute concerned parenting orders for a child, D, born in 2005. The applicants sought orders that the child live with them and that they have sole parental responsibility. They also sought an order that there be no contact between the child and the respondent, except as permitted by the applicants, and excluding any extended family and social gatherings in line with the Region E customary practice of giving and receiving children. The matter was heard in the Family Court of Australia at Cairns by Benjamin J.

The primary legal issue before the court was whether the parenting orders sought by the applicants were in the best interests of the child, D, pursuant to the Family Law Act 1975 (Cth). This required the court to consider the paramount consideration of the child's best interests, as outlined in section 60CA of the Act, and to have regard to the primary and additional considerations set out in section 60CC. Specifically, the court needed to determine how the traditional practice of "giving and receiving children" within the Region E culture, and the child's right to enjoy his culture, factored into these best interests, alongside the usual considerations of parental relationships and the child's welfare.

Benjamin J reasoned that the court's jurisdiction in relation to children is governed by the Family Law Act, with the paramount consideration being the best interests of the child. The court noted that the child had been living with the applicants since he was six months old, in accordance with the Region E customary practice of giving and receiving children, a practice integral to the society and social bonds of the Region E people. The respondent consented to the orders sought, and there were no disputed issues. The court considered the provisions of section 60B regarding the objects of the Act, including the benefit to the child of meaningful involvement with both parents and the right to enjoy their culture. The court also considered the provisions relating to parental responsibility, including the presumption of equal shared parental responsibility under section 61DA, and the factors for determining a child's best interests under section 60CC.

The court made orders that the child D live with the applicants, Ms S Matthews and Mr B, and that they have sole parental responsibility for the child. The court further ordered that there be no contact between the child and the respondent, Ms Matthews, except as permitted by the applicants, and excluding any extended family and social gatherings when the families might be together, in line with the Region E customary practice. The court also noted that the particulars of the obligations and consequences of these orders were set out in an attached Fact Sheet, which was included in the orders. The matter was then removed from the list of cases requiring determination.