Orav & Keskula - [2022] FedCFamC2F 1114

Federal Circuit and Family Court of Australia
(DIVISION 2)
Orav & Keskula [2022] FedCFamC2F 1114

File number(s): BRC 15124 of 2020

Judgment of: JUDGE COPE

Date of judgment: 30 August 2022

Catchwords: FAMILY LAW – parenting – cultural issues – child having just turned five years old – where child has been in the care of a non-parent since two years of age – where the non-parent asserts that she has traditionally adopted the child – following the legislative pathway, it is not necessary for the Court to make findings on traditional adoption –Finding that handover of the child to the non-parent was due to coercion – where not all of the legislative pathway applies to consideration of a non-parent – where the non-parent does not have the capacity to facilitate the child’s relationship with the birth mother – order for child to live with birth mother.

Legislation:
Family Law Act 1975 (Cth) Part VII ss 60B, 60CA, 60CC, 60CG, 61F, 65AA, 65D, 65DAA

Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 (Qld)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33 (2), 10.27

Cases cited:
Beck and Anor & Whitby and Anor [2012] 293 FLR 235; [2012] FamCA 129

Blaze and Anor & Grady & Anor [2015] Fam LR 172; [2015] FamCA 1064

Donnoll & Dovey (2010) FLC 93428; [2010] FamCAFC 15

Isles & Nelissen [2021] FedCFamC1F 295

Kitchell & Zitha & Bon (unreported Family Court of Australia, Buckley J, 4 September 2001)

Lara & Lara and Marley & Sharp (2004) FLC 93-186; [2003] FamCA 1393

M & M [1988] 166 CLR 69; [1988] HCA

Matthews and Anor & Matthews [2011] FamCA 982

Mazorski & Albright [2007] 37 Fam LR 518; [2007] FamCA 250

MRR v GR [2010] 240 CLR 461; [2010] HCA

Division: Division 2 Family Law

Number of paragraphs: 321

Date of hearing: 28 February 2022, 1 March 2022, 29 March 2022, 31 March 2022 & 1 April 2022

Place: Cairns

Counsel for the Applicant: Ms Lawrence of Counsel

Solicitor for the Applicant: Aboriginal & Torres Strait Islander Legal Service

Counsel for the Respondent: Mr Jacobs of Counsel

Solicitor for the Respondent: Legal Aid Queensland

Counsel for the Independent Children's Lawyer: Mrs Bassano of Counsel

Solicitor for the Independent Children's Lawyer: Bridges Family Law Specialists
ORDERS

BRC 15124 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ORAV

Applicant

AND:
MS KESKULA

Respondent

AND:
INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE COPE

DATE OF ORDER:

30 August 2022

THE COURT ORDERS THAT:
Parental Responsibility
1.The Applicant Mother, MS ORAV have sole parental responsibility for the child, X (also known as X) born in 2017.

Live With
2.The Child live with the Applicant Birth Mother.

Changeover Upon The Making Of The Final Orders
3.The First Respondent is to bring the child to the Federal Circuit and Family Court of Australia Registry at Cairns on Level 3 at 11:30am on 30 August 2022 to be delivered to a Court Child Expert where the child will remain during the handing down of the decision.
4.Change over to the Applicant Birth Mother will be facilitated by the Court Child Expert as soon as practicable after the Final Orders have been handed down.
5.The Applicant Birth Mother is to leave the Court precincts with the child as soon as she is directed to do so by the Court Child Expert.
6.The First Respondent is to remain on Level 4 of the Court precincts until advised by security that she may leave and further she is restrained and an injunction issue restraining the First Respondent from attending on Level 3 of the Court until she has been advised that the Applicant Birth Mother has left with the child.

Spend Time With
7.The Child shall spend no time with and have no communication with the First Respondent for a period of two weeks after the making of these Orders, noting that such time is intended to ensure that the child is protected from exposure to conflict and distress.
8.The Child will spend time with the First Respondent as agreed between the Applicant Birth Mother and the First Respondent in writing and failing agreement:
(a)On one occasion each year for a two (2) week period, such time to occur during the school holidays, with the holiday period to be confirmed in writing by the First Respondent at least four (4) weeks prior to the time occurring;
(b)In the event the First Respondent travels to Brisbane, that upon the giving of at least four (4) weeks written notice, for a period of no more than seven days to occur on days and times as agreed; and
(c)During the times the Mother travels to City B with the child, for periods up to one day each week that she is in City B to occur on days and times as agreed.

9.The child spend time with the Second Respondent Father at all times as may be agreed with the Applicant Birth Mother.

Communication
10.The First Respondent communicate with the child by video calls as agreed between the First Respondent and Applicant Birth Mother in writing and failing agreement as follows:
(a)Following the two week moratorium, for a period of eight (8) weeks (the immediate transition phase), video calls to be held twice weekly every Monday and Wednesday at 5.30pm – 6.00pm;
(b)During the second transition phase, for a period of eight (8) weeks, video calls to be weekly every Wednesday at 5.30pm-6.00pm;
(c)During the third transition phase, for a period of eight (8) weeks, video calls to be held fortnightly on Wednesday at 5.30pm – 6.00pm;
(d)Following completion of the third transition period, video calls to occur at all reasonable times as may be requested by the child.

Child Counsellor
11.The Applicant Birth Mother engage a Child Counsellor for the child for the purposes of transitioning into her care, and for managing the child’s potential behaviours.

Physical Discipline
12.The Applicant Birth Mother and the First Respondent are restrained from the use of physical discipline on the child.

Non Denigration
13.That neither party shall denigrate, insult or allow any other person to denigrate or insult the other party in the presence or hearing of the child.

Independent Children’s Lawyer
14.The Independent Children’s Lawyer be discharged thirty (30) days from the date of these Orders.
15.All outstanding applications be dismissed and the matter be removed from the pending cases lists.

AND THE COURT NOTES THAT:
A.The Court has requested that Court Security be present during the handover of the child into the Applicant Birth Mother’s care and compliance with Orders 3 - 6 above.
B.The Court has requested the assistance of a Child Court Expert to facilitate the handover of the child to the Applicant Birth Mother in accordance with these Orders and to explain the Orders to the child in an age appropriate manner.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Orav & Keskula has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COPE
PART 1: INTRODUCTION

The subject child in these proceedings is X on her birth certificate and her date of birth is 2017. She has just turned five years old. The child’s name on the Birth Mother’s evidence is X. I shall refer to her as “the child” or “X”, being the name with which the child is familiar.
The proceedings before the Court were filed by the Applicant Birth Mother, Ms Orav (“the Birth Mother”) on 27 October 2020.
The First Respondent is Ms Keskula (“the First Respondent”). The First Respondent gives Affidavit evidence that she is the biological aunt and traditional adoptive mother of the child. She was formerly married to the Birth Mother’s uncle.
The Second Respondent is the biological father, Mr C (“the Second Respondent”). On 28 February 2022 after he failed to attend the first day of Trial, the matter proceeded undefended so far as the Second Respondent was concerned.
The Birth Mother has an older child D born in 2016. He is also the child of the Second Respondent. D is not subject to these proceedings and is to be traditionally adopted by the mother’s sister.
The First Respondent has older children being Ms E born in 2003, F born in 2005 and G born in 2006. All three of these children live with X and regard her as their sibling, and she regards them in the same light.
The father, being the Second Respondent, has re-partnered and has children of that relationship. Those children are H born in 2019 and J born in 2021. X has never met those siblings.
The Court is asked to decide the future living arrangements and care of the child, X. The First Respondent asserts that she has traditionally adopted the child while this is disputed by the Applicant Birth Mother and the Second Respondent Father.
Issues in Dispute and Issues for determination
The following issues are variously identified by the parties, the Family Report Writer and the Court:
(a)whether I have the power to make a finding that a traditional adoption did or did not take place;
(b)if the child was traditionally adopted, whether there was any coercion involved;
(c)the appropriate legislative pathway noting that the First Respondent is a non-parent;
(d)whether the First Respondent perpetrated family violence against the Birth Mother;
(e)whether either the Birth Mother or the First Respondent physically abused D;
(f)how and why the Birth Mother came to deliver X to the First Respondent in October 2019, noting the First Respondent’s failure to properly comply with Order 8 of the Orders made by Judge Willis on 19 April 2021 requiring an Affidavit be filed explaining what occurred;
(g)the First Respondent’s capacity to facilitate the child’s relationship with the birth parents;
(h)the child’s sibling relationships and the need to facilitate those relationships; and
(i)the capacity of the parties to maintain the child’s family and cultural connections.
Once I have decided those issues, or determined that they are outside the scope of this Court’s jurisdiction or not relevant to my determination, then I must determine:
(a)With whom the child should live;
(b)How much time the child should spend with the other parties;
(c)How much time the child should spend with her siblings, whether biological or traditionally adopted or simply viewed by the child as siblings;
(d)Parental responsibility; and
(e)Related child focused issues.
Current living arrangements
It is an agreed fact that on or about April 2018 the Birth Mother moved from City K with her two children, D and X, and commenced living with the First Respondent in Suburb L, a town 30 minutes south of City B.
It is an agreed fact that on or about 11 October 2019 the Birth Mother delivered X to the First Respondent and since then the First Respondent has been the sole carer for the child X. How that came about and whether it was as a consequence of a Torres Strait Islander Traditional Adoption is in dispute.
In accordance with Orders made on 1 April 2021 after a contested interlocutory hearing, X lives with the First Respondent. Those Orders also provide that the First Respondent and the Birth Mother have equal shared parental responsibility and for the Birth Mother to spend time with the child on up to five consecutive days each month.
Orders were then made on 23 April 2021 for video calls to take place between the child and the Birth Mother at 10:00am each Friday and Sunday and at any other times agreed to by the parties. The mother’s unchallenged evidence is that those twice weekly calls have occurred.
In accordance with Orders made on 17 September 2021, after a further contested interlocutory hearing, what was in effect make up time was ordered to occur on two occasions with the First Respondent to bear the costs of travel. The child then spent time with the Birth Mother in Brisbane on 26 September to 5 October 2021, which appears to be a combination of the block time ordered rather than two separate blocks of time.
Cultural Identity of the Parties
The Birth Mother’s evidence is that her birth father’s family are from Island M and Town N in the group of islands in the Torres Strait. Her birth mother’s family are from Island O which is also in the Region Q. The evidence of the Birth Mother is that the father’s family are from the Central Region including Island R and Island S.[1]
[1] Birth Mother’s Affidavit filed 31 January 2022, paragraph 12-13
The First Respondent gives evidence that her family originates from Island T in the Region U Islands[2]. The First Respondent gave evidence that English is not her first language. Her first language is Language V and she is fluent in Torres Strait Creole.[3]
[2] First Respondent’s Affidavit filed 7 February 2022, paragraph 40
[3] First Respondent’s Affidavit filed 7 February 2022, paragraph 4
Whilst she was born in City B, the First Respondent gives evidence that she went to Island T in about 2000 where she trained as an educator, later returned to City B, and then subsequently lived on Island S. She later returned to Suburb L, then moved to Island P and then to Island W, before returning to Suburb L in 2016, where she still lives.
During the Family Report interviews however Ms E (the First Respondent’s older child) advised the Family Report Writer that she was from Island N and Island T.[4] No explanation was given for this contradictory evidence.
[4] Family Report dated 8 November 2021, paragraph 180
Traditional Adoption (also referred to as Cultural Adoption or Customary Adoption)
The Torres Strait Islander practice of traditional adoption is a complex and significant part of their culture. Parties have come to these Courts from time to time and the Court has had a focus on respecting and supporting those practices.
There is now State legislation in place to ensure that the rights of parents and children involved in traditional adoption are respected and enforceable through a Recognition Order.[5]
[5]Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 (Qld)
A significant issue in this case is whether a traditional adoption has occurred or was intended to occur by both parties. That is only one of the issues, as if I decide that no traditional adoption occurred or even if I do decide that one occurred, I must still be guided under the legislation to treat the best interests of this child as the paramount consideration. The issue is further complicated by submissions that it is outside the jurisdiction of this Court to make a finding about traditional adoption.
In the Birth Mother’s trial Affidavit she sets out her understanding of traditional adoption as being something that involves all parties and the community. She denies that she agreed to a traditional adoption of the child to the First Respondent.[6]
[6] Birth Mother’s Affidavit filed 31 January 2022, paragraphs 11-20 and 141-149
The First Respondent sets out her understanding of traditional adoption in her trial Affidavit material. Her understanding is that a child is given into the care of a family member and that the child becomes a blood relative. The child is not informed of the adoption but it can be revealed to the child at the right time, normally after they are 18 years. Contact with the birth parents is allowed but they are not permitted to reveal their connection. She also speaks of the importance of a mother in the Torres Strait Islander culture.[7]
[7]First Respondent’s Affidavit filed 7 February 2022, paragraphs 40-45
In accordance with Orders made by Judge Willis AM on 19 April 2021 both parties were given the opportunity to engage Cultural Experts and in particular it was ordered:-
If any party is relying on a cultural practice as part of their case, they are to nominate a single expert or Elder to give evidence about that cultural practice. The single expert must be prepared to be interviewed by the Family Report writer and be available to give evidence and be cross examined at the trial if necessary. Each party must provide the contact details for the nominated single expert or elder to the Family Report writer without delay.
Each party provided those details to the Family Report Writer but due to what I will call obstructive conduct from the Elder nominated by the First Respondent, the Family Report Writer had input only from the expert nominated by the Birth Mother, being Ms Y.[8] The Birth Mother also filed an Affidavit of Ms Y on 7 February 2022.
[8] Family Report dated 8 November 2021, paragraph 172
Ms Y is a Torres Strait Islander who has a Bachelor of Arts from the AL University (double major in anthropology and political science) in 1988, a Masters – PhD research studies on Torres Strait Islander customary laws and the Hawaiian Hani system from the AM University conferred in 1996 and a Diploma of Counselling from the Australian Institute of Social Relations received in 2015. She is an accredited paraprofessional interpreter with NAARTI. Her unchallenged evidence was that she has no personal connection to the Birth Mother. She was accepted as an independent Cultural Expert.
Ms Y’s Affidavit evidence addressed the passing of legislation which now recognises customary law as of 2020. She gives evidence that she was one of a group of Torres Strait Islander community representatives who was consulted about the drafting and making of that legislation. That legislation enshrines the importance of the involvement of family and clan groups in traditional child rearing practices with the requirement that an informed person confirm the child rearing practice/traditional adoption occurred in accordance with Islander custom.
She also gives evidence that she has no kinship obligations or conflicts of interest in this matter and that she was born on Island N in the Torres Strait.
Ms Y summarises the key features of the traditional practice of giving and receiving children in her Affidavit to commonly include:
·there is consent from both the giving and receiving parents;
·the process involves the family of both sets of parents and the clan groups;
·if any issues arise, the parties can go back to the family/clan group who witnessed the process in order to settle the dispute;
·the giving parents are not prevented from being involved in the child’s life after they have given a child, although the child would continue to refer to the receiving parents as “mum” and “dad”; and
·the practice occurs with love and there is no disconnection between the giving and receiving parents, because the child is raised surrounded by family.
During submissions it was noted by Mr Jacobs, Counsel for the First Respondent, and I accept, that there was no expert evidence in relation to the traditional adoption practices of the Region U Islands, being the First Respondent’s cultural homelands.
How the child came into the First Respondent’s care

X has lived with the First Respondent since October 2019. The evidence in relation to how the child came to live with the First Respondent is inconsistent and much disputed.
The Birth Mother denies any intention of traditional adoption or that she asked the First Respondent to take on a parenting role. Her Affidavit evidence is that she was subjected to family violence when living with the First Respondent, perpetrated by the First Respondent and her children.
The Birth Mother’s Affidavit evidence is that to be able to safely leave with X and D she organised support from Queensland Police as she had been advised that the First Respondent had made threats of harm against her. She then took the two children back to the Brisbane area. Following that however, her evidence is that she received a phone call from a female she believed to be in a position of authority and who said words to the effect “you must return X as you are not legally her guardian. If you don’t return her to Ms Keskula, you’ll lose both children. You must nominate a time and date when you will return X.”[9]
[9] Birth Mother’s Affidavit filed 31 January 2022, paragraph 84
Her evidence was that she thought she would be in trouble if she did not deliver X to the First Respondent. She gives evidence that she then received a message from the First Respondent to the effect that Legal Aid told her there was a misunderstanding and that the Birth Mother was returning the child back to City B. She then did so.
The evidence of the First Respondent set out in her trial Affidavit mirrors the evidence in her Affidavit filed on 23 February 2021. This is to the effect that the first time the subject of traditional adoption was raised was after the Birth Mother had been living in the home for a period of some weeks, having arrived on 22 April 2018.[10] Her evidence was that prior to moving to Suburb L, the Birth Mother called her from a park, told her she was struggling to care for her two young children, and that her aunt Ms Z threw her out. The First Respondent’s evidence is that she told the Birth Mother “she was welcome to come with her children and stay with me for as long as she needed.”[11] Her detailed Affidavit evidence does not allege any discussion of traditional adoption at this point in time.
[10]First Respondent’s Affidavit filed 23 February 2021, paragraphs 33–44 and Affidavit filed 7 February 2022 paragraphs 46–58
[11]First Respondent’s Affidavit filed 7 February 2022, paragraph 47
Rather her Affidavit evidence is that after a few weeks, the Birth Mother complained about not being able to go out and it is then that the First Respondent gives evidence that the Birth Mother asked her to take the child so that she could have more freedom, and so that the First Respondent could be the child’s mother.
During the Family Report interviews however the First Respondent alleged that the Birth Mother requested her to assume the care of the child prior to travelling to City B.[12] The Family Report addresses the matter as follows:
[The First Respondent] claimed that in 2018 [the Birth Mother] called her upset. [The Birth Mother] was reportedly at a park because she and her aunt had argued and she had been kicked out. [The First Respondent] alleged [the Birth Mother] then video called her and asked her if she wanted [X]. She claimed [the Birth Mother] told her she could not take care of [X] because she cried a lot and she allegedly offered that [The First Respondent] take [X] to be [G’s] sister. [The First Respondent] indicated she was shocked and she did not want to get hurt however [the Birth Mother] said she was serious.
[12]Family Report dated 22 November 2021, paragraph 85–87
This information is in direct contradiction to the First Respondent’s Affidavit evidence given on two occasions, the first Affidavit before and the second Affidavit after the Family Report interviews.
The children of the First Respondent provide slightly different versions of events to the report. The child Ms E (17 years at the time of interview) advised the Family Report Writer of two telephone calls from the Birth Mother prior to the move to City B, her asking if they wanted “another sibling” and on arrival saying to her mother, “here you go, here’s your 40^th birthday present” and then she gave the child to the First Respondent.[13]
[13]Family Report dated 22 November 2021, paragraph 185-187
The child F (16 years at the time of interview) recalls the Birth Mother passing X to her brother G and telling him that she was his baby sister[14].
[14]Family Report dated 22 November 2021, paragraph 199
The child G (15 years at the time of interview) told the Family Report Writer that the child joining the family came as a surprise when his mother said they were going to have a new baby sister. He claimed the Birth Mother “then gave X to him telling them ‘here you go G, your new baby sister’”[15]
[15]Family Report dated 22 November 2021, paragraph 209-210
Family Violence Allegations
The Birth Mother sets out allegations of family violence in her Affidavit material including:
(a)the First Respondent punching her in the face, “going off”, shouting at her, and putting her forearm on her neck and holding her down on the kitchen bench while Ms E jabbed her ribs and stomach;[16]
(b)Ms E getting angry at her and yelling “no that’s my sister”, running at her, pushing her into the couch and trying to punch her in the face. This is said to occur in the presence of the children and the First Respondent;[17]
(c)the First Respondent yelling at her that she had connections with the local police, standing over and pushing her down onto the couch and saying “I have a big family and you’ve got no one on your side”; and[18]
(d)when she was leaving with the children, being called names such as “slut”, “bitch” and “whore”, F using a knife to destroy a canvas photo of D, and F breaking a table by slamming it on the ground multiple times.[19]
[16]Birth Mother’s Affidavit filed 31 January 2022, paragraph 71
[17]Birth Mother’s Affidavit filed 31 January 2022, paragraph 72
[18]Birth Mother’s Affidavit filed 31 January 2022, paragraph 73
[19]Birth Mother’s Affidavit filed 31 January 2022, paragraph79 - 81
In the Family Report, family violence is referred to as one of the issues for determination and particularly “whether X was traditionally adopted and if so, if there was any coercion associated with this process.”[20] The Family Report Writer addresses the allegations of family violence in some detail[21].
[20] Family Report dated 8 November 2021, paragraph 60
[21] Family Report dated 8 November 2021, particularly in the evaluation which commences at paragraph 217
The allegations of family violence are denied by the First Respondent.
The only independent evidence in regards to allegations of family violence are to be found in the Queensland Police Service subpoenaed records. Those relate to the events on 1 October 2019 when the Birth Mother sought Police assistance to leave with the children. Those records confirm the Birth Mother’s evidence as to the violent and verbally abusive behaviour perpetrated on the day, in particular by F and Ms E.
Child Safety and Wellbeing
The Birth Mother and First Respondent each allege that the other physically abused the child D.
The Birth Mother alleges the First Respondent physically disciplined the child[22] and also that she came home one day to find that the First Respondent had tied D’s hands.[23]
[22]Birth Mother’s Affidavit filed 31 January 2022, paragraph 59
[23]Birth Mother’s Affidavit filed 31 January 2022, paragraph 61 and 194 and Family Report dated 8 November 2021, paragraph 115
The First Respondent gives evidence that the Birth Mother physically disciplined and abused D and used the leg of a chair to hit him, leaving bruises.[24] Her evidence to the Family Report Writer was to the effect that it was the Birth Mother who tied D’s hands.
[24]First Respondent’s Affidavit filed 7 February 2022, paragraph 114 and Family Report dated 8 November 2021, paragraph 131
Despite telling the Family Report Writer that she has a blue card, the First Respondent’s evidence is that she did nothing to protect D or report the alleged abuse.
Communication
Despite there being Orders for equal shared parental responsibility, the First Respondent acknowledges that she has failed to communicate and consult with the Birth Mother. She concedes that she enrolled the child in day care in 2022 without including the Birth Mother’s details on the enrolment form or consulting her about which day care; advising her after the event. This occurred only weeks prior to the trial.
The First Respondent conceded that if she had communicated with the Birth Mother about the injury to the child’s foot and her hospitalisation and indeed the travel to the Torres Strait for the tombstone opening in the first place much aggravation could have been avoided.
Financial arrangements
The Birth Mother says and it is conceded by the First Respondent that she asked the Birth Mother to give her money or pay child support. This is raised in the Family Report and also in the Affidavits of the Birth Mother and the First Respondent.
The Centrelink document
There are two copies of this document, one with the Birth Mother’s (alleged) signature and address redacted but otherwise they appear to be the same document dated 25 May 2018 stating:
I’ve given my daughter to my mother as Tradail adobing [sic]. [X] will be live with my mother [Ms Keskula] and will not be returning back into my care.[25]
[25] First Respondent’s Affidavit filed 7 February 2022, annexure B
The evidence of the First Respondent and the Birth Mother about this document is in conflict and was the basis of significant cross examination.
PART TWO: MATERIAL RELIED ON
The Birth Mother’s material
The documents relied upon by the Birth Mother are as follows:-
(a)The Amended Initiating Application filed on 21 February 2022;
(b)The Affidavit of the Birth Mother filed on 31 January 2022;
(c)The Affidavit of the Birth Mother filed by leave on 28 February 2022;
(d)The Affidavit of Ms Y filed on 7 February 2022; and
(e)The Outline of Case document filed on 21 February 2022.
Objections were taken to part of the Birth Mother’s Affidavit material and rulings made to exclude some evidence.
The First Respondent’s material
The documents relied upon by the First Respondent are as follows:-
(a)The Amended Response filed on 23 February 2021;
(b)The Affidavit of the First Respondent filed on 7 February 2022;
(c)The Affidavit of Mr AB filed on 17 February 2022;
(d)The Outline of Case document filed on 23 February 2022; and
(e)Financial Statement filed on 30 March 2022.
Objections were also taken to part of Mr AB’s Affidavit evidence and conceded on behalf of the First Respondent.
The Second Respondent’s Material
The Second Respondent was found to be in default and in accordance with Rule 1.33 (2) and 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and the proceedings were deemed to be undefended as regards the Second Respondent.
Independent Children’s Lawyer’s material
The documents relied upon by the Independent Children’s Lawyer (“ICL”) are as follows:-
(a)The Child Inclusive Conference Memorandum dated 22 January 2021;
(b)The Family Report released on 22 November 2021; and
(c)The Outline of Case document filed on 21 February 2022.
Other material and submissions
I was very much assisted by the joint chronology of the parties.
Documents tendered by the parties or exhibited by the Court were as follows:
(a)Exhibit M1 - Medical Report from Registrar AC dated 1 March 2022 regarding Mother’s condition;
(b)Exhibit 1 - Transcripts of Proceedings dated 1 March 2022; and
(c)Exhibit M2 – Application in a Proceeding.
At the conclusion of the Trial the Birth Mother and the Independent Children’s Lawyer each provided amended proposed Orders. Counsel for the First Respondent helpfully provided further written submissions.
Submissions were made by Counsel at the conclusion of the Trial. I do not intend to summarise those in detail but have addressed those submissions at relevant times during my consideration and determination.
PART THREE: THE PROPOSALS
The Birth Mother’s proposal
The Orders sought by the Birth Mother at the conclusion of the Trial are similar to those set out in the Amended Initiating Application filed on 21 February 2022.
She proposes:-
(a)Final Orders that the Birth Mother have sole parental responsibility for the child, and that the child live with her;
(b)The transition occur immediately and with the support of a Court Child Expert. A request is made via notation that security be present for the transition; and
(c)The child spend time and communicate with the biological father as agreed between the Birth Mother and the father.
As regards the First Respondent, the Birth Mother proposes that the child spend time and communicate with the First Respondent as agreed and failing agreement for one x two week block each year and also time in Brisbane as agreed for the First Respondent and the First Respondent’s children.
The final proposal for X’s time with the First Respondent has changed, as the Amended Initiating Application proposed a fall-back position of one half of the April, June/July and Christmas gazetted school holidays, and up to two weekends each school term from 5:00pm Friday to 5:00pm Sunday. The Birth Mother had also proposed additional time should she travel to City B with the child
No orders are sought in relation to the cost of travel.
The Birth Mother’s proposal for video contact had also changed from video calls each Monday and Wednesday at 5:00pm to a gradually decreasing regime with ultimately no set times and video contact only to occur as requested by the child.
Provision is no longer proposed for changeovers, notifications of contact details, requirements to inform each other if the child is seriously ill, or that the parties each encourage and not undermine the child’s relationship with the other parties.
Provision is still sought for restraint against physical discipline and a non-denigration clause.
The Birth Mother also proposes psychological support for the child.
The First Respondent’s proposal
The Amended Response filed by the First Respondent on 23 February 2021 proposes that:-
(a)The child live with the First Respondent;
(b)That the First Respondent have sole parental responsibility, on the provision that she consult with the Birth Mother prior to making any decision; and
(c)The child spend time with the Birth Mother as agreed between the parties.
The First Respondent also proposes Orders that the child spend time with the father as agreed between the First Respondent and the father.
The First Respondent seeks an Order that all parties respect traditional Torres Strait Islander adoption practices when referring to the First Respondent, the Birth Mother and the biological father and their relationships with the child. She clarified under cross examination that this means that she proposes that the First Respondent be called “mum”, the Birth Mother to be referred to as “sissy AD” or similar and the biological father referred to as Mr C, being his given name.
The First Respondent also seeks Orders that neither party is to physically discipline the child, that the parties attend family dispute resolution in the event of any dispute and such further or other orders as this Honourable Court deems fit.
At the commencement of the Trial on 1 March 2021, I was advised that the First Respondent supported Orders for equal shared parental responsibility.
The Independent Children’s Lawyer’s proposal
At the conclusion of the matter the ICL proposed Final Orders that X return to live with the Birth Mother and the Birth Mother have sole parental responsibility.
The ICL proposes a transition period where the child’s time with the Birth Mother slowly increase over an eight week period.
Regular face-to-face time and electronic communication between the child and the First Respondent was proposed.
Orders were also proposed for the child and the First Respondent to obtain psychological supports.
PART FOUR: THE EVIDENCE AND WITNESSES
The Birth Mother
The Birth Mother gave her evidence over two days, commencing when the Trial was originally scheduled on 1 March 2022 and continuing on 29 March 2022.
On 1 March 2022 the Birth Mother was in hospital. She was however alert and focused; she was leaning into the camera and answered questions clearly and sensibly. I’m satisfied that she understood what was being asked of her and answered openly and honestly.
I considered the Birth Mother to be a good witness. She was thoughtful and considered in her evidence. There were occasions when she was reluctant to answer questions, for example when it came to the evidence about having a man stay the night with her in the First Respondent’s home, and indeed in her bed, but ultimately made the concession.
She denied saying that she was stuck with two children and she consistently denied that she asked the First Respondent to take X.
The Birth Mother specifically denied that she wanted to do a traditional adoption. She was pressed by Counsel for the First Respondent in cross examination to make concessions in relation to that but she refused to do so. She did concede that she and the Second Respondent (the father) were not in contact at the time, that he had moved on. When she was asked to accept that a traditional adoption was her decision to make not his, she disagreed.
She denied that X’s name on the birth certificate was selected by her as reflecting the names of her best friend and foster carer.
In relation to the visit to Suburb AE Centrelink, she conceded that attending on 25 May 2018 but she denied that she signed paperwork on that occasion or that doing so was intended to make a traditional adoption official.
The Birth Mother’s evidence in relation to the document from Centrelink was that she had first seen that document on the weekend prior to the commencement of the Trial. Her evidence was the same in relation to the enrolment form for the child to attend at day care - that she had been informed the week prior to Trial of the enrolment.
Counsel for the First Respondent questioned the Birth Mother in relation to her language skills. Her evidence was that she completed year 12 satisfactorily and her best subjects were science and maths. She denied any difficulty with the English language and confirmed that she had joined the armed forces at 18 years of age and passed the rigorous testing process required to do so. Her evidence was that the same process was undertaken when she transferred to the armed forces subsequently after two years. In all she spent four and a half years in the defence force reaching the rank of public servant in the armed forces.
The Birth Mother’s capacity to read, write and understand is relevant as it is alleged by the First Respondent that the writing on the Centrelink form is the Birth Mother’s hand writing, however that handwriting reflects very limited skills including spelling and grammar. This appears to be at odds with the Birth Mother’s evidence as to her education, with her Affidavit evidence and her presentation in the witness box. There has however been no expert analysis of the writing on that document.
The Birth Mother was referred to her Affidavit material where she said that she had been manipulated to leave X in the care of the First Respondent in October 2019. Her evidence was that she felt obligated and felt that she did not have the power to take her own child. It was put to her under cross examination that it was a voluntary handover of the child and that there had been no manipulation. Surprisingly she agreed, however went on to give evidence that she had been forced by family members.

She conceded that in October 2019 she delivered the child to the First Respondent and returned to Brisbane and then did not make an application to this Court for at least a year. When asked to explain the delay her evidence was that she had never been in that situation before and that she obtained legal advice from the Police at Town AF. She said that the phone call she had received was that she had an obligation to return the child.
In relation to her other child, D, she confirmed that he had been given to her younger sister Ms AG, and is now living with her mother as Ms AG is only to turn 17 this year. Her evidence was that while she had the ability to care for D, she was undertaking a “real” traditional adoption in that case.
Counsel explored the reason that she had left her mother’s home and moved to City B. She denied that there were serious arguments or that she had been asked to leave. She said she just needed to take a vacation from her mother. She denied being homeless and repeated that she could have returned to her mother that they had just had a “little” disagreement.
She agreed that in March 2018 she contacted the First Respondent but denied that she had told her she was struggling to care for two children. She denied telling the First Respondent that her mother had kicked her out. She denied being in a park or being homeless.
She acknowledged that the First Respondent said that she could stay with her as long as she needed, and that she went to stay with the First Respondent with both of her children.
She agreed that when she moved in with the First Respondent, there was a discussion as to house rules and that the First Respondent said she was there to help, suggested a household routine and that the Birth Mother had agreed to do the best she could.
She denied ever telling the First Respondent that she considered her “a mother”. Rather she said that because of the separation of the First Respondent from her uncle she no longer regarded the First Respondent as family.
She also denied the suggestion that she became sad, did not talk much or had told the First Respondent that she felt like she was missing out because she was a single mum. Her evidence was that she did not speak much and tended to keep to herself.
When it was suggested to her that she was unhappy because the father had left her, she said she wasn’t happy with the father but she was a strong independent woman and she was able to do it (parent) by herself.
It was put to her there was absolutely no basis for the suggestion that she had been manipulated into leaving the child with the First Respondent but the Birth Mother remained adamant that was the case.
She denied saying she was stuck with two kids, she denied asking the First Respondent to take X via a traditional adoption. She agreed that the First Respondent said she did not want another child as she had children of her own, that she had said she was looking forward to returning to full-time work and also agreed that the First Respondent had said that she would help with the children and give her a home and some stability.
The Birth Mother denied that she continued to ask the First Respondent to take X or asked the children to accept X into the family as their little sister. She denied that after about a week there was a family discussion with the First Respondent and her children where the idea of taking X into the family was discussed.
She denied any discussion when she confirmed that she understood that a traditional adoption was final and that she could not go back on it and denied that it was possible that the alleged discussion had ever occurred. She also denied saying that nobody needed to know that they were doing a traditional adoption.
In relation to the attendance at Centrelink, the Birth Mother’s evidence was that the First Respondent went to Centrelink and then she went over afterwards - conceding that she was there at some point. Her evidence was that there was no social worker involved, only a lady who worked at Centrelink. She conceded she was asked a number of times if she was sure if she understood what she was doing and if she was pressured to hand over the child.
She conceded that she had told the person at Centrelink that the decision was hers, that she felt it was the right thing in her heart to do. Her evidence was however that the Centrelink document dated 25 May 2018 was not signed by her; that was not her handwriting on the document and not her statement.
She also denied that she had asked X to call the First Respondent “mum”. She conceded however that the First Respondent encouraged her to get X to call the First Respondent “mum”. She also conceded that the child came to know her (the Birth Mother) as “sissy AD”
The Birth Mother’s evidence is that with Police involvement she left with D and X on or about 1 October 2019. She then returned X on or about 11 October 2019. She denied saying to the First Respondent that she did not know why she took the child. Her evidence was that she wanted to leave with both her children.
Under cross examination, the Birth Mother remained adamant in her evidence about the alleged physical assault by the First Respondent and her daughter, as outlined earlier in these Reasons.
The First Respondent
The First Respondent was at times almost agonisingly slow to respond under cross examination and at other times there was a brisk to and fro in her evidence under cross examination. For example the First Respondent was puzzled and resistant to questions about family violence in her relationship with her former partner, Mr G. However, at other times she was firm in denials and brisk in argument about what were at times innocuous or even irrelevant matters. I formed the view that she was slow in answering questions that she did not want to answer or was unsure what was best to say.
When asked why the Birth Mother stayed with her for so long in 2018 and 2019 if it was a traditional adoption, the First Respondent gave evidence that her expectation was that the Birth Mother would deliver the child and leave. This evidence is however at odds with her own Affidavit evidence that she offered the Birth Mother a home for as long as she needed and that the issue of traditional adoption did not arise until some weeks later.
She also denied under cross examination that she received any Centrelink benefits for X and only conceded that point when shown her own Centrelink statement. She could offer no explanation for her earlier denial.
The alleged traditional adoption and the First Respondent’s understanding of it were explored in cross examination. These were difficult questions for the First Respondent and initially she maintained that a traditional adoption had occurred.
When she was asked to concede that her own community did not recognise her care for X as traditional adoption, there was an incredibly long pause before she agreed. She also conceded that it was not recognised as a traditional adoption by the Birth Mother, but insisted that for her it was. When asked on what basis she said it was a traditional adoption, she said that the Birth Mother gave her X and then it was a traditional adoption and this occurred when the Birth Mother brought X to her in April 2018.
When asked if her care of X was recognised as a traditional adoption by the father, she said she didn’t know.
She conceded that it was the parents and the community who define when a traditional adoption occurs and ideally the relevant Elders determine the matter for them. Her evidence was that the Elder in her community was her sister Ms AH. I pause to note that no Affidavit was filed by Ms AH and it appears that Ms AH was also the person the First Respondent sought to nominate as her cultural expert. While she conceded however that there was no relevant Elder for the Birth Mother, she insisted that the handing over and traditional adoption of X would be permanent. She gave evidence that it was “for good”.
Under cross examination, the First Respondent conceded that the Birth Mother did not accept that she (the First Respondent) had parental rights for X, that the Birth Mother does not accept that she has stopped being X’s mother and that she does not accept that the child stopped being her child.
She was asked if she understood the difference between a caretaker agreement and a traditional adoption and was asked to accept that the arrangement with X had been a caretaking arrangement. She did not do so.
She confirmed that she sought sole parental responsibility for the child but also that the child spend some time with the Birth Mother pursuant to a family agreement. She conceded that in traditional adoption there would be no such arrangements for a structured time with a birth parent.
Early in cross examination, she conceded that a birth parent would not pay child support. She also conceded that she requested the Birth Mother pay her money. Her evidence about this changed, however as later in her cross examination, when it was again put to her that paying child support was not a feature of traditional adoption, her evidence was to the effect that she thought it was.
She acknowledged that she had not filed an application with the Commissioner for a Recognition Order (of traditional adoption) or received any advice about making such an application. She conceded that this was at least in part because the Birth Mother does not accept that she is the traditional parent of X.
Under cross examination, the First Respondent’s position was that regardless of any findings as to the existence of a traditional adoption, she sought Orders that X continue to live with her.
The First Respondent gave evidence that she had many family members living in the City B region as part of an extensive Torres Strait Islander community. She further acknowledged that she had told the Family Report Writer that those people would come forward and give evidence in this matter. In fact, only Mr AB has done so.
Her evidence was that she had called Mr AB to give evidence because he was present for a conversation about traditional adoption. She conceded however that she gave no evidence of that herself in any Affidavit. She also conceded that there was no evidence from her about any conversation and with the Birth Mother where she discussed giving the child “from the heart”. Again this was a difficult cross examination for the First Respondent which was evidenced by many pauses. She would not however concede that the conversation had not happened and insisted that it had.
She denied any physical violence perpetrated by her towards the Birth Mother. When it was put to her that she had admitted violent conduct in the Child Inclusive Conference process, she denied that. Certainly the Family Consultant reported “She did acknowledge shoving her on one occasion, in the presence of the child, and appeared to blame the mother for this…”[26]
[26] Child Inclusive Conference Memorandum dated 22 January 2021, paragraph 14
In relation to the trip to Centrelink on 25 May 2018, when first cross examined, the First Respondent’s evidence was that she and the Birth Mother went into Centrelink together. She acknowledged that she was aware that the birth needed to be registered in order for the newborn payment to be made. Although her Affidavit used the words “ceremonial celebration” to describe the trip to Centrelink, her evidence was that those were not her words and she looked surprised by the phrase.
It was put to her that the effect of signing the paper at Centrelink did not make what occurred a traditional adoption. She did not directly answer but rather said that she did not write the form and that the Birth Mother did so in her own words. She did however, when pressed, concede that it was just for the payments and the Centrelink document did not make it a traditional adoption. When asked about the social worker referred to in her own Affidavit material she conceded they talked to a Centrelink worker.
She was adamant that the writing on the Centrelink form was the Birth Mother’s writing. She was adamant that it was not her writing and the Birth Mother signed it in front of her.
When later cross examined about the same issue, it became apparent during cross examination that she had retained a copy of the form at the time it was signed. I formed the view that the reason she sought another copy from Centrelink was because she hoped it would be stamped by Centrelink. The copy she received from Centrelink however was not stamped and further the address and the signature were redacted such that the copy she obtained in this way had less information then the copy she already held.
She was also challenged as to why she had disclosed that document only recently given that she had it throughout, noting the freedom of information request was made in 2021. There was no satisfactory answer to those questions. She conceded however that it was important to her for Centrelink to recognise that X was in her care.
In relation to the allegations of abuse of D, under cross examination her evidence remained that she had not tied up D, but that she had seen him tied up and taken a photo. She conceded however that she did not report the matter to Child Safety.
As to the Birth Mother leaving with both children in October 2019, the First Respondent agreed that the Birth Mother had arranged for the Police to attend and help her to leave.
The First Respondent’s evidence was that the Birth Mother had called and said she was coming to get her stuff and her daughter but alleged that she herself had “said nothing”. When it was put to her that the Birth Mother would not have brought the Police unless something had happened, the First Respondent gave no answer other than saying she did not know what was going on, she was asleep, and there was no argument. When asked if she had any idea why the Birth Mother felt the need to bring the Police, her answer was “no”. It was however noted on the Police records as a “keep the peace job”.
She gave evidence that the Police entered her home and asked her to get X ready and that she went into her son’s room and packed. She conceded that her children were very upset. When pressed she reluctantly said that her children swore at the Birth Mother calling her “fuck face”, and shouted at her. The First Respondent’s evidence was that she said nothing. The First Respondent said the children were in the house and that she was outside talking to the Police. When asked what G was yelling she reluctantly said that he called the Birth Mother “bitch” and “slut”.
When challenged that this took place in front of the children, she conceded that X was there. She also conceded that the G ran to the paddy wagon and that Police said if she did not stop the child they would put him in the paddy wagon. The First Respondent then said to the Birth Mother words to the effect “see what you do, I don’t even know what’s going on, I don’t know”. She also conceded that her daughter F cut a photo of D using a knife.
When asked if she took any action, the First Respondent’s evidence again was indirect and to the effect that her children were a “bit upset” that the Birth Mother had dishonoured her.
Counsel explored with the First Respondent her proposals for contact in the event that X lives with her. She had no specific plan although her evidence was that she would facilitate time. The First Respondent agreed that sibling relationships are important for children, however she regards her children as X’s siblings.
She was asked about her ability to afford the cost of contact, noting that she lives in Far North Queensland and the mother in South East Queensland. Although she was adamant that she could afford it and would put money aside, under cross examination she was forced to acknowledge that she had no money to meet that cost and said she would need to work.
The First Respondent’s evidence was that she saw no benefit to the child in spending time with the Birth Mother earlier in the proceedings. When asked if she saw any benefit now, her answer was “if she wants”. She was asked approximately three times what benefit there was to X to spend time with the Birth Mother and her replies were evasive, saying that X was happy.
When asked if she had facilitated time between the child and the Birth Mother during the time she was in City B for the Trial, her response was that the Birth Mother did not ask. When asked if she saw any benefit to the time occurring her response was that it was “fine with me” but she still was unable to state any benefit to X.
Under cross examination, the First Respondent gave evidence that the Birth Mother called her on Christmas Eve 2021, that they talked and that the Birth Mother told her to apply formally for a traditional adoption. This is denied by the Birth Mother. There was later some argument about the date this phone call took place as the witness then said that she hadn’t called in 2021 and that she thought the call had taken place in 2020. She became adamant that the Birth Mother had not called on Christmas Eve 2021 and it was unclear why she was so adamant about that issue.
She was referred to the Family Report of Dr AJ as regards the alleged phone call on Christmas Eve.[27] It was put to her that it was very unlikely that the mother would have called her in the midst of this litigation and suggested she traditionally adopt the child, however the First Respondent was adamant that this had occurred. This was confusing and unpersuasive evidence.
[27]Family Report dated 8 November 2021, paragraph 98 page 17 of 46
When cross examined about her failures to make the child available for contact in 2021, the First Respondent was anxious to explain that X had an accident with her foot, however that applied to only the one contact.
The injury to the child’s foot occurred when they went to Island T for a Tombstone opening and was the reason why the child’s time with the Birth Mother did not take place in July 2021 as ordered. The First Respondent’s evidence was that her failure to notify the Birth Mother directly was due to a reliance on her lawyer, who she said delayed passing on the information. Despite Orders for equal shared parental responsibility, the First Respondent did not advise the Birth Mother about the trip to Island T or the foot injury. When asked why she hadn’t told the Birth Mother she said that her phone was broken and she didn’t have the number but that she got her mother’s phone and called her lawyer.
The First Respondent also appeared puzzled about the suggestion that the Birth Mother could have spent time with the child when she was in hospital or after her release from the hospital.
Ms Y or Aunty Y (the Birth Mother’s Cultural Expert)
Ms Y was the Cultural Expert witness arranged on behalf of the Birth Mother as regards traditional adoption. I have summarised her Affidavit evidence and qualifications earlier in these Reasons.
This witness has the academic qualifications and personal experience together with work life background which enable her to speak authoritatively about customary adoptions for her region. She was very clear that she wasn’t speaking as an expert in relation to any other region. Her expertise was unchallenged.
It was the opinion of Ms Y that it was not the Court but rather the parties and the community who decide whether a traditional adoption has occurred and who deal with any dispute between the parties.
When asked what role this Court played, given her evidence that the decision about traditional adoption was a matter for the clan groups, Ms Y expressed the opinion that the role of the Court is to recognise and honour this practice and recognise that it has been legalised.
The First Respondent comes from Island T which is in the Region U Islands. When asked if there was a significant difference between the customs relating to traditional adoptions, Ms Y advised that there were.
In deciding whether a child had been traditionally adopted she gave evidence that a significant factor was whether the child spent more time with one particular parent. Another relevant factor was that the parties did not litigate the issue.

Ms Y gave evidence that in her region it was the woman’s decision alone to decide whether to give the child in a customary adoption.
Her evidence was that those intending to have a traditional adoption would go to the clan groups and family, however she conceded that although that was the ideal it was not always followed.
Under cross examination, she agreed that once a traditional adoption has been completed, the giving parents step aside and there would be little contact. She did say that the child can be brought up in the extended family, but biological parents have no say and will be there simply because the givers are part of the extended kinship group and therefore part of the child’s life.
Her evidence was that once a child is given it is “taboo” to take the child back.
She gave evidence that from time immemorial a child was never told they were adopted but these days things have changed. She advised that a child was told at 21 years that they had been traditionally adopted, however on her subsequent evidence the age appears to be fluid as different clan groups have their own laws or lore around the issue.
Ms Y gave evidence that it was unusual for a Birth Mother to give a child to someone who already had children. When asked if she had come across such a case before she said it could happen but that was usually when someone had lost a child. Her evidence was that it was very unusual to give a child and for a parent to receive a child when they already have children.
Mr AB (The First Respondent’s witness)
In his Affidavit filed on 17 February 2022, Mr AB acknowledges that he is the uncle of the First Respondent. He is also an Elder and involved in the Torres Strait Islander community both in City B and on the islands.
He gives evidence in his Affidavit of an occasion where at the request of the First Respondent he met with her and the Birth Mother, to talk about the traditional adoption of X by the First Respondent.
His evidence is that the three of them sat at the table and the Birth Mother said to the First Respondent “I want to give you the baby” and said she “couldn’t handle the two children”. His evidence was that he spoke to the Birth Mother about traditional adoption and how it worked and that he asked the Birth Mother three times whether she was going to “give the child from the heart”. His evidence is that on each occasion the Birth Mother said yes.
He gives no Affidavit evidence about the traumatic events of October 2019 when the Birth Mother removed X with the assistance of Police or the subsequent return of the child and the disputed evidence about those matters. His evidence is limited to a conversation which he says took place when X was only a couple of months old.
Under cross examination, however Mr AB’s evidence was that this conversation took place around Christmas time and he said that X was only a few weeks old at that time.
The Birth Mother lived in City B from April 2018 through to October 2019. In April 2018, the child was about eight months old. By Christmas 2018, X was about 16 months old. There is a significant difference in the appearance and capacities of a few weeks old child and that of a 16 month old toddler.
Mr AB gave evidence to the effect “that’s when she told [the First Respondent] then sitting at my place”. He also gave evidence that he told the Birth Mother that when you give a child away in traditional adoption, you can’t take it back.
Mr AB’s evidence was that he was just explaining the situation to her, that it was her words not his and that he did not force her to make the decision. He also said that he didn’t ask the Birth Mother to make those wishes that she made, that she wanted to “give the child away” and he didn’t force her to say that.
This witness was not present as an expert witness on traditional adoption or as an independent Elder who was asked to witness giving and receiving of a child. He is a family member who is clearly close to the First Respondent.
I was somewhat troubled that this witness spoke about the Birth Mother “giving away” the child when earlier that day we had been told by the Family Report Writer, who has a long history working in the Courts with Torres Strait Islanders and interviewing and providing evidence in Kupai Omasker (Traditional Adoption) matters through the Court, we had been told that such language was disrespectful and that it was more appropriate to speak about the “giving and receiving” of children.
I was troubled by the evidence of this witness. I was troubled that it was not consistent with previous evidence given by either the Birth Mother or the First Respondent, noting that this evidence was not addressed by either in their Affidavit material.
I place little weight on this evidence due to the inconsistencies in Mr AB’s evidence, the inconstancy with the First Respondent’s evidence and the familial connection to the First Respondent.
The Family Report Writer – Dr AJ
At the commencement of the evidence, Dr AJ made one Amendment to her Family Report at page 226, inserting the word “not” such that the last sentence reads:
reflecting on the information provided by the cultural expert, and acknowledging that [Ms Y] prefaced what she was saying by noting it only pertained to traditional adoptions in the [Island N] region, the maternal and paternal families are generally involved in the process of traditional adoption and this was not the case in the current matter.
Dr AJ was an impressive witness. Her qualifications and experience are unchallenged. Further both parties were given the opportunity to locate and engage an independent Cultural Expert to talk to the Family Report Writer so that she would have the opportunity to consider the cultural background of both parties. In fact, Orders were made by Her Honour Judge Willis AM on 19 April 2021 to that effect as noted earlier in these Reasons.
In the Family Report process, Dr AJ reviewed the material and spoke not only to the parties but also to the First Respondent’s children, and Ms Y the Cultural Expert nominated by the Birth Mother. The expert proposed by the First Respondent, Ms AH, did not engage due to self-imposed barriers, in particular seeking information regarding intellectual copyright of the interview. Dr AJ also had the assistance of Mr AK the Indigenous Liaison Officer.
In the Family Report, Dr AJ identified risk factors of family violence, child safety and welfare, whether X was traditionally adopted, and if so, whether there was any coercion associated with that process, the child’s sibling relationships and the capacity of the parties to facilitate and maintain the child’s family and cultural connections.
In the Family Report, Dr AJ gave a summary of the parties’ evidence about the giving and receiving of the child along with their own understanding of how traditional adoption works.[28] The expert opinion of the Cultural Expert, Ms Y, as imparted to Dr AJ is summarised in the Family Report as well as reflected in an Affidavit as outlined earlier.
[28] Family Report dated 22 November 2021, pages 11–17
The Family Report Writer confirms that the child is a Torres Strait Islander and that all parties identify as Torres Strait Islanders. She reports:
[The parties] value their culture and the importance of the child having knowledge of and being involved in her culture including having and maintaining connections with kin...The parties’ ability to support [X]’s knowledge of and involvement in her culture is essential for the healthy development of her identity, her sense of self and well-being and her sense of belonging and connection to her community.[29]
[29] Family Report dated 22 November 2021, paragraph 218
The Family Report Writer expresses the opinion that the Centrelink document is important. In her view, if it is accurate then it signifies the Birth Mother’s intention for the First Respondent to permanently care for the child, but if not valid then it may represent an attempt by the First Respondent to misrepresent the Birth Mother’s desires and her authority as the biological parent.
The recommendations in the Family Report itself depend on the findings as to whether the child has been traditionally adopted. She does not express an opinion about that but notes “merits and risks” and “strengths and challenges” either way. It is apparent on the face of the report that neither option is free of risk or challenge for this child.
I considered and placed weight on Dr AJ’s opinions including the following:
(a)The evaluation at paragraph 217 that “X has a bond with Ms Orav and Ms Keskula as well as with Ms E, F and G”.
(b)At paragraph 220 “X now identifies Ms Keskula as her mother and Ms E, F and G as her sisters and brother. She identifies Ms Keskula as her mother and Ms Orav as “Sissy AD” and D as her cousin brother.”
Under cross examination, Dr AJ was a persuasive witness. Her opinions remained consistent with the report.
She was asked how sensitive any transition should be and Dr AJ noted the heightened emotion and volatility reported around the events of 2019, and the importance of being aware of the dynamics. Her advice was that the parties and the child should attend Court in person for the delivery of the decision. Her opinion was that it is important for the child to be protected from any further heightened emotion and acting out; that any transition needed to be carefully planned.
In the event of a transition to the Birth Mother’s care, she recommended that the Birth Mother engage an experienced child therapist and a developmentally appropriate conversation occur. At this point in time her opinion was that X did not understand that the Birth Mother was her biological mother and the child would need significant support. Indeed, her opinion was that whatever decision was made, all parties and the First Respondent’s children will need significant support.
In relation to the allegations about physical abuse of D, the Family Report Writer was of the opinion that if the allegation about the Birth Mother was true, then she would be concerned about her parenting. She also expressed that if it was true she would be concerned about the First Respondent failing to intervene and therefore her ability to protect the child.
Dr AJ was very clear that on a cultural level a Torres Strait Islander would never talk about “giving a child away”. Rather children are “given and received” in order to strengthen bonds and it is culturally insensitive to talk about it in a language which implies abandonment. She expressed the opinion that a traditional adoption comes about through love and reciprocity.
Dr AJ also noted that neither party had consulted clan members about the alleged traditional adoption of X.
She was of the opinion that the giving and receiving of Torres Strait Islander children is appropriate where a traditional adoption has occurred.
Dr AJ acknowledged that the child had lived with the First Respondent in City B since she was 18 months old and moving to the Birth Mother’s care could be traumatic, but expressed the opinion that there were many factors in this matter that could be traumatic. This included the inability to develop a relationship with her maternal family if she stayed in her current living arrangements and the loss of the bonds that she currently holds if she lived with the Birth Mother.
Dr AJ expressed the opinion that the First Respondent’s children presented as genuine and accepted what they told her at face value. She acknowledged however that the fact-finding was outside the scope of her role.
PART FIVE: FINDINGS
Findings about the parties
I agree with Dr AJ that both the Birth Mother and the First Respondent clearly love X very much, as do her siblings.
I found the Birth Mother to be a consistent and sensible witness. She made concessions as appropriate and presented as child focused. She has been compliant with Court Orders and I am satisfied that she will continue to comply with Court Orders in the future.
When the First Respondent was under cross examination, the process was at times agonisingly slow, with lengthy pauses in answering some questions – in particular about the process of traditional adoption. The cross examination sped up when she was answering questions which allowed her to be critical of the Birth Mother.
The First Respondent was overall most reluctant to answer questions about the concept of traditional adoption and whether a traditional adoption had occurred. I formed the view that she was not telling me the truth at times, however she made some concessions at other times which were to her disadvantage. Particularly so when she ultimately conceded that, even in her own estimation, what had occurred was not a traditional adoption and that it was not acknowledged by her extended family as such.
Towards the end of her evidence the First Respondent presented as tired and defeated. It was during this time that she answered questions very much to her detriment, including that she understood the Birth Mother’s beliefs about traditional adoption, that there needed to be consent, that the Elders needed to be involved and that the process did not exclude the biological parents. She conceded that during the time the Birth Mother lived with her, she paid child support. She conceded that there was more likely to be child support paid for a care arrangement as opposed to a traditional adoption. She conceded that it was unlikely in a traditional adoption that there would be a payment from a biological parent.
Importantly, she conceded that given her answers and her experience and understanding of the Birth Mother’s culture and the payments received for child support, the arrangement she had with the Birth Mother was not a traditional adoption. I was uncertain given the flat aspect and sadness of the First Respondent at this point of the evidence as to how much weight I should place on those concessions.
In assessing this witness, I turned my mind to the cultural issues and challenges which Torres Strait Islander people face in the Court system, and the well-known custom of a witness simply agreeing when under pressure.
Having considered those matters, I still struggled to accept the evidence of the First Respondent. I cannot overlook the ease and willingness with which she answered other questions. And I cannot overlook the varying stories about how X came into her care.
The First Respondent denied that she was the person who abused the child D. On her own evidence however she stood aside and did nothing about that alleged abuse. She denied that she was violent towards the Birth Mother but also told the Family Consultant that she had shoved the Birth Mother, which is an act of violence. She denied that Ms E had assaulted the Birth Mother but when the Police records were put to her she conceded the abusive behaviour by her children when X was removed.
The First Respondent did not give evidence in her Affidavit about the meeting with Mr AB, vital evidence for someone who is arguing that a traditional adoption occurred. As set out above, at times her evidence changed under cross examination.
The First Respondent failed to comply with Orders to provide detailed information about the phone call from the “legal aid Lawyer” to the Birth Mother requiring the return of X.[30] Whilst an Affidavit was filed on 17 May 2021, it provided no specificity and does not assist the Court or in reality comply with the Order. The First Respondent’s evidence under cross examination was similarly vague about such an important event. I formed the view that the First Respondent was deliberately obstructive and did not wish the Court to know who had made that call on her behalf.
[30] Order dated 19 April 2021
Although the First Respondent gave evidence that she would facilitate time between X and the Birth Mother she had no specific proposal when cross examined and has no history of facilitating the relationship. The block time ordered in September 2021 was due to her failure to facilitate time, and even then, rather than the two separate blocks that were ordered, the time occurred in one larger block.
The Birth Mother was an impressive witness. She was consistent and she made sensible concessions. I formed the view that she was honest and reliable in her evidence.
The First Respondent was an inconsistent witness. For the reasons outlined above as regards her inconsistencies and failures, where her evidence conflicts with that of the Birth Mother, I prefer the evidence of the Birth Mother.
In particular, for the reasons outlined above, I accept the Birth Mother’s evidence about the following matters:
(a)the family violence perpetrated against her in the First Respondent’s home;
(b)that she allowed the First Respondent to assume the care of X out of fear and also out of respect for an Elder;
(c)that she did not sign the Centrelink document and if I am wrong about that, then she did so under coercion; and
(d)that she received a call from a person believed to be in authority, telling her she must return X to the First Respondent’s care or lose both children.
Whether the First Respondent perpetrated family violence against the Birth Mother
The evidence of the First Respondent as regards the allegations of family violence was inconsistent and at times troubling – such as her failure to report alleged severe abuse of D. I do not accept that evidence.
The evidence outlined by the Birth Mother in her Trial Affidavit was consistent with her evidence under cross examination. Further, the First Respondent’s own evidence about family violence was inconsistent and changed under cross examination.
I prefer the evidence of the Birth Mother and accept that she was subjected to family violence perpetrated by the First Respondent.
Whether the Birth Mother or the First Respondent physically abused D
For the same reasons outlined above and for the following additional reasons, I accept the Birth Mother’s denials of this abusive behaviour and her evidence that rather it was the First Respondent who tied up D:
(a)Noting that she holds a Blue Card, has worked with children and is the owner of the home in which these events occurred, I do not accept that the First Respondent would not take some action if she witnessed this behaviour; and
(b)I accept the Birth Mother’s evidence that she felt unable to act against the authority of the First Respondent.
How and why the Birth Mother came to return or deliver the child to the First Respondent in October 2019;
I accept the evidence of the Birth Mother that the call from the “legal aid lawyer” was to the effect that she must return the child or lose both children.
Given the findings that I have made about family violence and given that the Birth Mother was the recipient of a call from a person in authority (or so she believed), I accept the Birth Mother’s evidence about why she returned the child to the First Respondent.
The First Respondent’s capacity to facilitate the child’s relationship with the birth parents;
I am of the view that the First Respondent does not have the capacity to facilitate the child’s relationship with the Birth Mother for the following reasons:
(a)The First Respondent failed to make the child available for time with the Birth Mother in breach of Court Orders;
(b)The First Respondent conceded not informing the Birth Mother about the child’s travel to the Torres Strait or serious injury to her foot until well after the events;
(c)The First Respondent’s surprise under cross examination at the suggestion that the Birth Mother could have cared for the injured child;
(d)The Birth Mother spent block make up time with the child in 2021 only under threat (or so the First Respondent says she believed) of going to jail;
(e)The First Respondent did not offer the Birth Mother time with child when the matter was listed for Trial until it was requested.
The child’s sibling relationships and the need to facilitate those relationships

Family violence is a recurring theme in this matter and my findings in relation to the allegations of family violence are significant as to the final outcome.
Based on the findings that I have made, the child is not at risk of harm in the Birth Mother’s care. She is however at risk of harm in the First Respondent’s care given that I have made a findings that it was the First Respondent who tied up D.
I have also made findings that the First Respondent perpetrated family violence against the Birth Mother and used coercion to enforce the return of the child X to her care in October 2019.
S 60CC(3) The additional considerations are:
S 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 weight
X is a very young child. She has not been asked to express any views to the Family Report Writer and in the event that she did so I would place little weight on them.
S 60CC(3)(b) The nature of the relationship of the child with each of the child’s parents and other persons (including grandparents or other relative of the child)
As noted above, the child has close relationships with both parties. The child currently views the First Respondent as her mother and the Birth Mother as “sissy AD”.
She views Ms E, F and G as her siblings. If she moves to live with the Birth Mother these are relationships that will suffer.
She has no relationship with and has not met the father’s children with his current partner. The relationship with D has naturally been limited by absence and tyranny of distance.
If the child stays with the First Respondent, I am of the view the relationship with the Birth Mother will be virtually non-existent. If she moves to live with the Birth Mother then her relationships with the First Respondent and her children will continue but it must be changed in nature due to distance and less regular contact.
S 60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major, long term issues in relation to the child; and to spend time with the child; and to communicate with the child.
I am satisfied that the Birth Mother has wished to be involved and actively sought to spend time with and be involved in decisions about X but has been frustrated by the First Respondent’s unwillingness to facilitate either time or decision making.
S 60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The Birth Mother has not paid child support. The First Respondent concedes that she actively sought child support.
There is dispute about whether child support is appropriate in the circumstances of this case.
S 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 either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
I have addressed this above and have in my mind the impact on this child in the event that I do not return her to her Birth Mother’s care and also in the event that I do so. Either path bears grief and loss, in the opinion of the Family Report Writer. I accept that view.
S 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.
The Birth Mother and the First Respondent live in separate towns. The cost of contact will be an issue wherever this child lives and must be considered when making my decision about what time is appropriate.
S 60CC(3)(f) The capacity of each of the child’s parents; and 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.
I am satisfied that both the Birth Mother and the First Respondent have a proven capacity to meet the child’s physical or practical needs. There are however concerns as to capacity of the First Respondent to meet the child’s emotional and relationship needs.
It was clear from the First Respondent’s evidence that she would not have contemplated arranging regular contact between the child and the Birth Mother if not for the Court proceedings. She agreed to X attending to spend time with the Birth Mother during the Trial because the Birth Mother requested it. She herself did not offer that time.
Further, the First Respondent has failed to comply with Court Orders to facilitate time and her evidence was that she saw no benefit to that time. I am satisfied that nothing has changed in that regard.
For those reasons I have no confidence that the First Respondent has the capacity to meet the child’s emotional needs.
S 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.
X is a Torres Strait Islander child. She is recently turned five years old. Since October 2019 she has lived with the First Respondent.
S 60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, 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 the likely impact any proposed parenting Order under this Part will have on that right.
I have addressed this issue in great detail throughout this judgment including consideration of X’s Torres Strait Islander culture and the importance of traditional child rearing practices and traditional adoption.
S 60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
I have addressed this above and have nothing to add here.
S 60CC(3)(j) Any family violence involving the child or a member of the child’s family and S 60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order.
Both parties have made allegations of family violence and I have made findings about that issue as addressed earlier in these reasons.
S 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.
I am of the view that this child needs certainty and stability.
S 60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant.
Where any of the above legislative provisions relate solely to parents and not to non-parents, in particular s 60CC(2)(a) and ss 60CC(3)(c), (ca), (e), (g) and (i), I have applied this provision to ensure that all relevant factors are considered as regards the First Respondent.
Part eight: Determination
Parental Responsibility
Under s 61DA(1), when making a parenting Order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. That said, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or family violence.
As noted above, s 61F however requires when making Orders for parental responsibility of Aboriginal or Torres Strait Islander children a mandatory consideration is any kinship obligations, and child-rearing practices of the child’s Aboriginal or Torres Strait Islander culture.
While the presumption would normally apply to the parents it is not in the child’s best interests in this case for the following reasons:
(a)The father filed material but ceased to be actively engaged in these proceedings and did not engage in the final hearing;
(b)The father is not actively engaged in the child’s life;
(c)The father has not fulfilled any kinship obligations or been involved in any traditional islander child rearing practices in relation to this child;
(d)The father has no co-parenting relationship with the Birth Mother;
(e)The Birth Mother and her legal representative sought to engage him in the Trial however the father did not respond to those requests; and
(f)The father resides geographically distant from the Birth Mother.
I then turn to consider the First Respondent’s proposal that she have sole parental responsibility for the child.
Under cross examination, the First Respondent gave evidence that her understanding of equal shared parental responsibility was to give notice to the Birth Mother. It was apparent through cross examination that she either did not or would not understand that equal shared parental responsibility meant making decisions together. Certainly her evidence was that she made the decision to enrol the child in day care on her own and said she did not know that she had to talk to the Birth Mother.
The First Respondent is a non-parent, however the legislation allows an Order for sole parental responsibility to be made in her favour. Kent J considered this proposition in Blaze at [122]:-
…Parenting orders, defined by s 64B, including orders for “parental responsibility” may be made in favour of non-parents as well as parents. (ss 64B(2) and 65(c)). An order can be made for a non-parent to have parental responsibility or to share that responsibility with another person who may or may not be a parent.
As Torres Strait Islanders by heritage and connections, both the Birth Mother and the First Respondent are well positioned to meet the child’s cultural needs in terms of the legislation and also on a practical level.
In this case, I formed the view that it would not be in the child’s best interests for an Order for sole parental responsibility to be made in favour of the First Respondent for the following reasons:
(a)Despite Interlocutory Orders for equal shared parental responsibility, the First Respondent has no history of consulting and making decisions with the Birth Mother;
(b)The First Respondent conceded that shortly prior to the Trial she had enrolled the child in kindergarten and that she had not included the Birth Mother’s details on that form or consulted with the Birth Mother prior to enrolling the child;
(c)She also conceded that she had not advised the day care or provided them with a copy of the Interlocutory Orders reflecting that the Birth Mother had equal shared parental responsibility at that time;
(d)She did not keep the Birth Mother informed about travel to the Torres Strait or the serious injury incurred by the child in 2021;
(e)I have made findings that the First Respondent perpetrated family violence against the Birth Mother; and
(f)Again there are issues of geographic distance.
For the same reasons I am of the view that Orders for equal shared parental responsibility between the Birth Mother and the First Respondent would not be in the child’s best interests.
The Birth Mother seeks Orders that she have sole parental responsibility. For the same reasons that I will not Order sole parental responsibility to the First Respondent or the father or indeed equal shared parental responsibility, I am of the view that the Birth Mother should have sole parental responsibility for X.
In summary, having regard to the findings I have made, the presumption does not apply and I am satisfied that it is not in the child’s best interests for Orders for equal shared parental responsibility to be made. I will for those same reasons Order that the Birth Mother have sole parental responsibility.
Arrangements for the Child to Spend Time
Having made that decision, I am not required by s 65DAA(1) and (2) to consider whether to make Orders that the child spend equal time and if not equal time then substantial or significant time with each parent or indeed with the First Respondent.
I agree with the Family Report Writer at paragraph 240 that:-
Irrespective of the decision made by the Court, it is important that the number of changes in [X]’s living arrangements is curtailed and that she has the opportunity to feel safe and secure and thrive in whatever living arrangement is ordered as well as the opportunity to be loved and cared for by kin from both her maternal and paternal families.
Given the findings I have made, I am not satisfied that it would be in the child’s best interests for an equal time or substantial and significant time Order to be made. This is based upon the same reasons that I have found equal shared parental responsibility or sole parental responsibility in the First Respondent’s favour are not in the best interests of this child. Certainly neither party seeks Orders in those terms.
Further, equal time and substantial and significant time are not practicable, given the distance between the parties’ homes, as the Birth Mother lives in South East Queensland and the First Respondent lives in Far North Queensland, and the Financial Statements reflect that neither party has any significant disposable income.
I am also of the view that for either arrangement to work these parties would need a proven ability to communicate well, which does not exist. The evidence is rather of a lack of communication.
In deciding where this child should live, I have considered that there are children whom the child likely regards siblings in the First Respondent’s home and with whom it is important that she continue to have a relationship.
I have also considered however the violent behaviour in October 2019 when the Birth Mother removed X including the inability of G and F to protect X from their heightened emotions. I have also considered the First Respondent’s inability to control those behaviours, which I regard as a serious failing on her part, together with the findings that I have made about the family violence perpetrated against the Birth Mother.
I am satisfied that the Birth Mother’s proposal that X live with her is in the child’s best interests for the same reasons as outlined above that support her having sole parental responsibility. I am satisfied that the Birth Mother will meet the child’s cultural needs.
I am also satisfied that the Birth Mother will comply with Court Orders and maintain the important relationships that the child has with the First Respondent and her children for the following reasons:
(a)She has a history of complying with Court Orders;
(b)She has a history of complying with those in authority – based in part at least on her delivering the child to the First Respondent when directed by an authority figure to do so in October 2019; and
(c)I accept her evidence that she is respectful of Elders in her community, as being one of the reasons why she did not stand up to the First Respondent earlier.
I see the merits of the eight week transition of X from the First Respondent’s care to that of the Birth Mother as recommended by the Family Report Writer and supported by the ICL. This is the ideal, however to be successful I am of the view that it will need positive support from the First Respondent and her family.
I saw far greater risks than advantages to that proposed eight week transition process. In particular that includes the risk that it will not be supported by the First Respondent and her children, the risk that the child will over those eight weeks be routinely exposed to heightened emotions and acting out.
The behaviour of the children in October 2019 in the presence of the Police and children – the verbal abuse the slashing of D’s photos and importantly the First Respondent’s unwillingness or inability to control the children until directed to do so by the Police - does not encourage me to take such a path.
I therefore propose to make Orders as sought by the Birth Mother for an immediate handover and for that handover to be supported by a Court Child Expert and to be monitored by Court security. I will also restrain the First Respondent from being present at that handover to the Birth Mother. Those Orders are intended to ensure that someone explains to the child what is happening in age appropriate language and to protect the child from any family violence or distress of the First Respondent and her family.
As regards the time that the child should spend with the First Respondent, the First Respondent has not put forward any specific proposals. I intend to impose a brief moratorium of two weeks on any contact or communication between the child and the First Respondent and her family. This is to allow the child to settle into her new home and importantly to allow the First Respondent a period to adjust and to gain advice about how best to protect this child from her personal grief and that of her children.
I accept the proposals of the Independent Children’s Lawyers as being in the child’s best interests as they allow for one block holiday period, and time when the Birth Mother travels to City B or the First Respondent travels to Brisbane.
I do not propose to make Orders for the child to spend time with the First Respondent’s children. They are not parties to the proceedings and it is a matter for the First Respondent to facilitate that time or a matter for the Birth Mother should she choose to do so when the child is in her care, noting the conduct in October 2019.
As regards time with the father, I accept the Birth Mother’s proposal that such time should be as agreed. The reasons for this are that he has failed to engage in these proceedings and I am confident that the Birth Mother will facilitate time in the event that the father seeks to further that relationship.
Taking all those matters set out in these reasons into account and weighing them one against the other I am satisfied that the Orders as proposed by the Birth Mother but with the addition of time in the event she travels to City B are in the best interests of the child.
For those same reasons, which I do not intend to repeat here, I am also satisfied that the Orders as proposed by the Birth Mother but with the addition of time in the event she travels to City B are reasonably practicable noting in particular the limited financial circumstances of the parties and the opinion of the Family Report Writer that this child needs to feel safe and secure.
Communication
The Birth Mother and the Independent Children’s Lawyer made similar proposals for a decreasing regime of communication between the child and the First Respondent, the difference being that the proposal of the Independent Children’s Lawyer had less specificity as regards days and times of those contacts.
The First Respondent’s Response made no specific proposals for regular communication between the child and the party with whom she did not live.
I prefer the proposal of the Birth Mother for the reason that it does provide some certainty about days and times of communication for the child and the parties, with that to commence only after the child has been in the Birth Mother’s care for two weeks.
Counselling
The Birth Mother and the Independent Children’s Lawyer both seek Orders that the child be supported by a child counsellor in this transition. I agree that this is important for her given the opinion of the Family Report Writer as to the challenges the child is likely to face.
The ICL also proposes that the Birth Mother and the First Respondent each attend on a counsellor to assist them to support the child in the transition and to assist the First Respondent to manage her own grief and loss.
I do not propose to Order a possibly unwilling party to attend counselling. Further, I am of the view that the child’s counsellor will work with the Birth Mother to ensure that proper supports are in place. I do however urge both the Birth Mother and the First Respondent to obtain counselling for their own benefit and for the benefit of the child.
Physical Discipline

The Birth Mother and First respondent are in agreement that the child should not be physically disciplined and I propose to make Orders in those terms given the allegations and findings that I have made about the abuse of D.
Non-denigration
The Birth Mother proposes a non-denigration clause and I am content to make that standard Order.
I do urge the parties to obtain legal advice about what constitutes denigration. Acting in any way which minimises or disregards the other parties is likely to be seen by the child as a criticism of that person and may cause confusion and distress.
Other Orders
I will make procedural Orders discharging the Independent Children’s Lawyer and dismissing all outstanding applications from the pending cases list.
All parties agree that on the day the decision is delivered, the child should be in attendance at the registry. I will Order for that to occur.
I do not propose to make Orders for the parties to attend Family Dispute Resolution in the event of a dispute. That is provided for by the legislation.
I also do not propose to make Orders that all parties respect Torres Strait Islander Adoption Practices, given that I have made no findings about that and have considered those matters in making my decision.
In Conclusion
I have, in the main, made Orders in terms sought by the Birth Mother.
I am satisfied that both the Birth Mother and the First Respondent love this child very much and that both wish to provide for her to the best of their ability.
I am satisfied that the Orders that are set out at the commencement of these Reasons properly reflect the arrangements that are both reasonably practicable and in the best interests of this child and so make those Orders.

I certify that the preceding three hundred and twenty-one (321) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope.
Associate:
Dated: 30 August 2022

File number(s):	BRC 15124 of 2020
Judgment of:	JUDGE COPE
Date of judgment:	30 August 2022
Catchwords:	FAMILY LAW – parenting – cultural issues – child having just turned five years old – where child has been in the care of a non-parent since two years of age – where the non-parent asserts that she has traditionally adopted the child – following the legislative pathway, it is not necessary for the Court to make findings on traditional adoption –Finding that handover of the child to the non-parent was due to coercion – where not all of the legislative pathway applies to consideration of a non-parent – where the non-parent does not have the capacity to facilitate the child’s relationship with the birth mother – order for child to live with birth mother.
Legislation:	Family Law Act 1975 (Cth) Part VII ss 60B, 60CA, 60CC, 60CG, 61F, 65AA, 65D, 65DAA Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 (Qld) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33 (2), 10.27
Cases cited:	Beck and Anor & Whitby and Anor [2012] 293 FLR 235; [2012] FamCA 129 Blaze and Anor & Grady & Anor [2015] Fam LR 172; [2015] FamCA 1064 Donnoll & Dovey (2010) FLC 93428; [2010] FamCAFC 15 Isles & Nelissen [2021] FedCFamC1F 295 Kitchell & Zitha & Bon (unreported Family Court of Australia, Buckley J, 4 September 2001) Lara & Lara and Marley & Sharp (2004) FLC 93-186; [2003] FamCA 1393 M & M [1988] 166 CLR 69; [1988] HCA Matthews and Anor & Matthews [2011] FamCA 982 Mazorski & Albright [2007] 37 Fam LR 518; [2007] FamCA 250 MRR v GR [2010] 240 CLR 461; [2010] HCA
Division:	Division 2 Family Law
Number of paragraphs:	321
Date of hearing:	28 February 2022, 1 March 2022, 29 March 2022, 31 March 2022 & 1 April 2022
Place:	Cairns
Counsel for the Applicant:	Ms Lawrence of Counsel
Solicitor for the Applicant:	Aboriginal & Torres Strait Islander Legal Service
Counsel for the Respondent:	Mr Jacobs of Counsel
Solicitor for the Respondent:	Legal Aid Queensland
Counsel for the Independent Children's Lawyer:	Mrs Bassano of Counsel
Solicitor for the Independent Children's Lawyer:	Bridges Family Law Specialists

BRC 15124 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS ORAV Applicant
AND:	MS KESKULA Respondent
AND:	INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE COPE
DATE OF ORDER:	30 August 2022