Pita & Anor & Manard & Anor - [2013] FMCAfam 296

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PITA & ANOR & MANARD & ANOR

[2013] FMCAfam 296

FAMILY LAW – Children – parenting – Vae Tama: Samoan Traditional adoption – separation of ‘gifted’ parents – parental responsibility – application by gifted mother for equal shared parental responsibility with parents – opposed by parents and ‘gifted’ father – consideration of effect of ‘gifting’ upon determination of parental responsibility – definition of parent/adoptive parent and legal effect of traditional adoption – distinction between parents and ‘gifted parent’ – order for equal shared parental responsibility vesting in biological parents only.

FAMILY LAW – Children – parenting – Application for equal or substantial and significant time by Samoan traditional adoption mother – consideration of bond between child and ‘gifted mother’ and child and biological parents – significance of relationships with siblings in biological parents’ home – effect of different financial circumstances in each home and consequences for a child moving between two different households – significance of culture, family and traditional values in biological parents’ home – effect and consequences of different views as to culture, family and traditional values in ‘gifted mother’s home – consideration of long-term effects and difficulties in a child moving between two such homes – effect on relationship with biological parents and siblings if moving between homes – consideration of possible long-term consequences for child and relationship with siblings – preference on balance to have child primarily live in home of biological parents and siblings.

Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 61DAC, 61DAE, 65DAA

Tomas and Anor & Murray [2011] FamCA 641
Lansa & Clovelly [2010] FamCA of 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Chappell and Chappell (2008) FLC 93-382

Applicants:

MS PITA & MR E PITA

FirstRespondent:

MS MANARD

Second Respondent:

MR I PITA

File Number:

TVC 120 of 2012

Judgment of:

Coker FM

Hearing dates:

10-12 December 2012

Date of Last Submission:

28 January 2013

Delivered at:

Townsville

Delivered on:

11 April 2013

REPRESENTATION

Counsel for the Applicants:

Mr Honchin

Solicitors for the Applicants:

LA Evans

Counsel for the First Respondent:

Mr Betts

Solicitors for the First Respondent:

KLP Family Law

Counsel for the Second Respondent:

Ms Mayes

Solicitors for the Second Respondent:

Purcell Taylor Lawyers

ORDERS

That the Mother, MS PITA, and the Father, MR E PITA, have equal shared parental responsibility for decisions relating to the major long term issues of the child, [X] born [in] 2008, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name.
That notwithstanding Order 1 herein:
(a)The Mother and Father shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with them; and
(b)The Aunt shall be responsible for the day-to-day care, welfare and development of the child whilst she is spending time with her.
That the child live with the parents, MS PITA and MR E PITA.
That the child spend time with the Aunt, MS MANARD, at all times as may be agreed and in particular:
(a)For one weekend per month from February to November in each year, being the third weekend from 6.00pm Friday to 8.00am Monday, with the third weekend defined as the weekend which commences with the third Friday in that month.
(b)For one week during the gazetted Christmas school holiday period, being the first week of the holiday period in odd numbered years and the fifth week of the holiday period in even numbered years.
That for the purposes of defining the first and fifth week of the Christmas school holiday period, the following apply:
(a)The first week of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the following Friday;
(b)The fifth week of the gazetted Christmas school holiday period commences from 6.00pm on the Friday 28 days after the conclusion of school until 6.00pm on the following Friday.
That the Aunt have telephone communication with the child at all reasonable times as may be agreed, but failing agreement, between 6.00pm and 6.30pm Monday, with the Aunt to be responsible for making the call to the parents’ phone and the parents to ensure the child is available to take the call in a quiet and private environment.
That the child may communicate with the parents or the Aunt at any time that she is in the care of the other party and the other party will facilitate such communication.

IT IS NOTED that publication of this judgment under the pseudonym Pita & Anor & Manard & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT TOWNSVILLE

TVC 120 of 2012

MS PITA & MR E PITA

Applicants

And

MS MANARD

First Respondent

MR I PITA

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings are indeed complex. They involve arrangements sought to be made with regard to the future parenting of the child [X]. [X] was born [in] 2008 and has therefore just recently turned five years of age. She is the child of Ms Pita and Mr E Pita whom I shall refer to as the mother and the father.
The respondents to the application are Ms Manard whom I shall refer to for convenience as the aunt, and Mr I Pita, known as [omitted], whom I shall refer to as the uncle. The involvement of the aunt and uncle in these proceedings arises from a traditional Samoan adoption of the child by the aunt and the uncle. It is pursuant to what is referred to as ‘Vae Tama’, and I will obviously address that issue later in these reasons.
The circumstances that have led to the proceedings being brought by the mother and father arise from the separation of the aunt and the uncle. The child, [X], had been “gifted” to the aunt and the uncle for the purposes of them raising the child, when [X] was about five months of age.
However, when the aunt and uncle separated some time ago, it led to a situation where [X] commenced to spend significantly more time with her mother and father than had previously been the case when the aunt and uncle remained a couple, and to all intents and purposes were acting in the role of parents to the child.
Circumstances also changed more radically in about February 2012 when proceedings were commenced by the mother and the father seeking orders with regard to [X] living with them, and there being a total discharge of any arrangements in relation to parenting of the child by the aunt and the uncle, other than, perhaps, the normal interaction that would occur within a family group, of that nature.
There is also an additional issue that arises in relation to the relationship between [X] and the aunt which complicates the issue, in that it appears acknowledged by all, except perhaps the biological father, that the relationship between [X] and her aunt is one with a bond equivalent to that of a mother and child. However, because of the breakdown in the relationship and issues of “blood”, the interaction or involvement that would normally be had by the aunt with the child would be radically reduced, if not wholly terminated, and that then gives rise to questions or concerns relating to the welfare and the best interests of the child.
The matter was heard over a number of days in December 2012 and due to issues of concern with regard to the complexity of the matter, written submissions from the legal representatives of each of the parties were requested to be provided. I have had the opportunity of considering those written submissions in relation to the judgment in this matter.
I respectfully adopt the first two paragraphs of the introduction provided on behalf of the uncle in the written submissions provided in relation to this matter, because in my assessment, they encapsulate the difficulties that arise in relation to this matter. Counsel for the second respondent said:
(1)Rarely has a marriage breakdown caused such distress and upheaval to as wide a group of people as was evident in this case. The grief, loss, shame and regret of the various witnesses was obvious through their evidence and inevitably exacerbated their emotions and attitudes.
(2)There is no doubt that the parties all love [X], and it was acknowledged by and large that [X] loves all of them. The challenge for the Court is to weigh up these attachments against the numerous other factors which are relevant in this matter, most particularly:
(a) the Samoan culture which is [X]’s birthright;
(b)the benefit to [X] from her relationships with her siblings; and
(c)the incompatibility of the attitudes to parenting between Ms Manard’s household and Mr and Mrs Pita’s household (and Mr I Pita’s household).
This introduction has obviously been prepared by counsel for the second respondent, and I am mindful of the position of the second respondent, in relation to the matter, but there are other factors that also need to be considered in relation to the matter, including of course, the welfare and the best interests of the child now and into the future, particularly being mindful of the considerations that are to be noted pursuant to the provisions of section 60CC(2) and (3) of the Family Law Act.
In particular, I am mindful of an additional issue which arises from the effect of any change in the parenting arrangements that might occur as a result of the orders of the Court upon the child. In this instance, [X] has until perhaps the last year or so, lived significantly, if not exclusively in the household of the aunt, and that must be considered as a factor, particularly with regard to the effects upon [X] of any significant reduction in the time that might be spent with the aunt.
Clearly there are many issues that need to be determined in relation to the proceedings. The parties themselves struggled with an understanding of exactly what might be the best interests and arrangements for [X] in relation to her long-term parenting. That was exhibited clearly in the fact that there were numerous changes in positions by each of the parties in relation to proposals with regard to the parenting of the child.

PROPOSALS

The initiating application that was filed by the mother and the father on 3 February 2012 sought orders of a very specific nature in relation to [X]. The orders could be refined down to the following:
·That the child live with the mother and the father.
·That the mother and the father have full parental responsibility for the child.
·That the uncle spends time with the child when requested.
·That if the aunt requests time with the child, the child’s siblings be included in the request.
·That additional opportunities be made available to the aunt and the uncle to be involved in the child’s life, including during family occasions and events in the child’s life.
The situation changed somewhat when the parties filed an amended application which detailed in significantly greater particularity proposals in relation to time to be spent by the uncle and the aunt with the child, including specifically proposals for the aunt to spend time with the child, at times as agreed, but more specifically as follows:
a)For two weekends per month from 6 pm Friday to 8 am Monday.
b)From 2 pm Christmas Day to 2 pm Boxing Day in 2012 and every even-numbered year thereafter.
c)From 2 pm Christmas Eve to 2 pm Christmas Day in 2013 and in every odd-numbered year thereafter.
d)From 10 am Good Friday to 6 pm Easter Sunday in 2014 and every alternate year thereafter.
e)On the aunt’s and the child’s birthday
i)if during the week the child is in the care of the parents or uncle, from after school until 6 pm.
ii)If on a weekend and the child is in the care of the parents or uncle, from 2 pm to 5pm.
Those proposals were included in the amended initiating application filed on 5 November 2012. They were in fact specifically repeated in the case outline which was filed pursuant to directions given with regard to preparation and delivered up to the Court prior to the commencement of the hearing on 10 December 2012.
However, during evidence in relation to the matter, it became clear that the position of the father, Mr E Pita and it would seem following on from that, the position of the mother, Ms Pita, changed in that there was a reduction proposed in relation to the time that the aunt might have specifically provided in relation to time to be spent with the child.
The final proposals in relation to the aunt’s time to be spent with [X] initially were that there be no specific times whatsoever outlined in relation to [X] spending time with her aunt, but that there be the opportunity for agreement to be reached between the mother, the father and the aunt in relation to such time.
The father certainly appeared agreeable to such arrangements being made and made reference to spending a few hours with the child for the purposes of dinner or other arrangements of that nature. It was noted in the case outline filed on behalf of the parents, however, that following comments that were made by me in relation to the difficulties inherent in this matter and the concerns with regard to ensuring that there was at the very least some significant and substantial time spent by [X] with the aunt, that the parents again changed their position with regard to the aunt’s opportunity to spend time with the child.
The final proposals therefore, in relation to the aunt’s opportunity to spend time with [X] were as follows:
That the aunt spend time with child at all times as agreed with the parents, but in particular as follows:
a)for one afternoon per week after school for two hours;
b)for one weekend per month;
c)telephone contact and visits to the child at all reasonable times; and
d)school holidays to be discussed.
As I indicated, there were clearly significant changes that occurred in relation to the proposals with regard to particularly the aunt’s time to be spent with [X] and, of course, it still remains somewhat undefined, specifically with regard to additional times as agreed and school holiday periods as agreed.
Before turning to the position of the aunt in relation to the matter it is perhaps appropriate that I should address the position of the uncle. I say that because, to all intents and purposes it is the case that the uncle supports the stance taken by the parents in relation to the matter, including a significant reduction in his previous time spent with [X].
The parent’s proposals, accepted by the uncle, coincide with the proposals made in relation to the aunt, in that they suggest that the uncle’s role should be that of a much loved uncle and leader of the family unit, but that there should be no particularity in relation to the time to be spent either by him or the aunt with the child.
It is noteworthy, however, that his position as detailed in the outline of case which was filed on his behalf on 9 December 2012 did provide specifically, that in the event of the aunt being successful in obtaining orders in terms of those which she seeks then that there should be particular time made available to him to spend time with [X], 2 weekends per month from after school Friday afternoon to before school Monday on the first and fourth weekend of each month. That would generally accord with the parents and the aunt then having one weekend less per month with the child, than would be the position pursuant to their original proposals.
The position of the aunt in relation to the matter was similar to the position of the parents, in other words, one that changed over time. In the original response filed on 4 April 2012 the aunt proposed that she should have sole parental responsibility for the child but that she keep the parents informed of significant parenting issues and further proposed that the child should live with her.
She then went on to detail proposals and arrangements suggested in respect of time to be spent with the applicant parents and the uncle, for alternate weekends to be spent with the parents from 4 pm Friday until 5 pm Sunday and for the uncle to have the opportunity to spend time with [X], but only during such times as [X] would be, pursuant to her proposed orders, spending time with the aunt and uncle. Special days were also the subject of lengthy proposals in relation to arrangements with regard to time.
There were then a significant number of procedural-type orders in relation to the child’s residence, telephone communication, costs of support for the child and the like. The position of the aunt, however, changed from April 2012 to December 2012 because in the case outline that was filed on 7 December 2012, the proposals with regard to [X] and to decisions to be made in respect of her life and her care were varied to provide for the following arrangements:
·That the parents and the aunt have equal shared parental responsibility for the child;
·That the child live with the parents and the aunt on an equal shared care basis week about;
·That [X] spend time with the uncle at times as may be agreed between the uncle and the parents but only to coincide with times that [X] would be in the care of the parents;
·Special days including birthdays, Mother’s Day and Father’s Day, Christmas and New Year were to be shared on an alternating basis to coincide with those special occasions;
·Holiday time was to be spent in block periods with the parents and the aunt;
·Specific arrangements were then proposed in relation to changeovers, holiday travel, telephone communication, meeting of the child’s expenses and other specific arrangements in relation to the parenting of the child.
Having considered those particular issues, however, during the trial and no doubt having heard the evidence and comments made by me in relation to the proceedings, the aunt incorporated within the submissions that were filed on her behalf, amended orders in relation to the parenting of the child. They were a reflection again of those arrangements which were detailed in the case outline filed on 7 December 2012 but included an alternative proposal in relation to time to be spent by [X] with each parent. The alternative was in these terms:
That the child spend time with each party at all reasonable times as may be agreed but failing agreement in each fortnight as follows:
(1)With the aunt from the end of day care or school (whichever is relevant) on Friday in the first week until the start of school on Wednesday in the second week (with the time to be begin on Friday, 21 December 2012) and alternated each week thereafter; and
(2)With the parents at all other times.
Otherwise the aunt’s proposals in relation to arrangements with regard to special days, holidays and communication were not the subject of variation. What is clear is that the fall-back position, if I can describe it that way, by the aunt was to not seek equal time in the alternative but substantial and significant time as defined pursuant to the provisions of the Family Law Act, including five days in each 14 during the gazetted school term.

EVIDENCE – THE PARTIES AND THEIR WITNESSES

As is clear, the positions of the parties were moveable in relation to this matter and more particularly were difficult for all to specify, because of the real concerns that all had, as to the welfare and best interests of this little girl. Much in this matter turns on the evidence of the parties as well as issues with regard to the child’s cultural and personal affiliations with the Samoan culture.

The effect of Vae Tama, Samoan traditional adoption, is also significant, and a considerable amount of evidence was called in that regard, though unfortunately there does not appear to be anyone who might be called expert in the consideration of exactly what might be the consequences of Vae Tama, in the event of the separation of the persons having the “gifted child” in their care.
Different parties gave different evidence in relation to their interpretations and understandings of what might or might not occur and, of course, the evidence of all needs to be considered in relation to this matter.
Primarily, however, the evidence of the parties to the proceedings themselves must be considered though, perhaps, more than is even normally the case, the position of other members of the Pita family must also be considered, in light of the culture which is significant, certainly to the parents as well as developing from that, issues of respect in relation to the wishes of other members of the family unit.
Before turning to the evidence of those parties, and I might add, the evidence of the report writer, however, it is necessary for me to also consider the evidence of various witnesses called in relation to the proceedings including those not required for the purposes of cross-examination. I turn then firstly to the affidavit of Ms T, the maternal grandmother of [X].
In her affidavit sworn 4 December 2012 and filed electronically on 6 December 2012 Ms T makes reference to her observations of the family unit at the current time and the difficulties that she notes arising from that, but also noteworthy are her comments with regard to the circumstances of the delivery up of [X] to the aunt and the uncle. She says at paragraphs 11 and 12 the following:
11. When [X] was about four (4) months old, Mr E Pita mentioned for the first time to me that [X] was about to be given up to

Mr I Pita and Ms Manard. I did not think that I heard right the first time so I asked what it was he’d said. I noticed then that Mr E Pita and Ms Pita exchanged looks. I did not say any more until the next day when Ms Pita came to me after [omitted] and Mr E Pita were both at work.
12. Ms Pita explained that Mr E Pita’s mother [omitted] had been asking her and Mr E Pita even before [X] was born, if they could give their baby for Mr I Pita and Ms Manard as they did not have a child of their own. My initial reaction was anger. I was angry as it became clear to me that Mr E Pita and Ms Pita have had these conversations with Mr E Pita’s mother for a long time and yet they have only decided to tell me at this late stage. I said to Ms Pita that day, if it wasn’t Mr I Pita whom I respect and that I knew would generally love and care for [X], I would never let her give away my granddaughter. My husband and I love this child so much that it broke my heart that she was leaving us. I have always told my four (4) daughters not to give away their children to anybody else as they are a blessing and their own responsibility from God. At that conversation with Ms Pita, I just broke down crying. Ms Pita cried with me. It was very hard to accept Mr E Pita and Ms Pita’s decision to give away my granddaughter. My heart also broke for my daughter Ms Pita, because I knew it was very hard for her to let go of her own daughter.
Clearly Ms T was distraught at the time of the traditional adoption being advised to her as occurring but it was also noteworthy and she was not challenged in relation to it, that the mother was distressed at the time of the gifting of the child and that whilst it occurred, it occurred out of respect for the Samoan cultural arrangements and respect particularly for the uncle and paternal grandmother, the heads of the household.
Ms T also spoke of her observations of the current arrangements with regard to the care of [X] and of [X]’s reactions with regard to movement between the various households. She said at paragraph 24:
I noticed immediately that [X] comes to our house sometimes and then is not there at other times. I asked Ms Pita and she explained that an agreement of some sort is in place for the time being until the matter is finalised in Court. I was angry because when I first heard about Ms Manard walking out of the relationship leaving [X] with Mr I Pita and his family, I thought Ms Manard understood that [X] was to be left with her own flesh and blood when there is no more relationship between herself and Mr I Pita.
It is perhaps only a passing reference to Vae Tama and the expectations that arise with regard to Vae Tama in the event of a separation of the parties who have had the child gifted to them, but Ms T was not challenged in relation to her understanding of Vae Tama and, more particularly, what she understood was required of the aunt and which the aunt understood to be the case.
Ms T more particularly, however, makes reference to her observations of [X] in the times that she is with her parents and her siblings and notes that [X] runs to hug her sisters and brothers, telling them that she missed them. I have no doubt that that is also the case. More particularly, however, Ms T emphasised the different positions taken within the households of the aunt and the parents and in respect of only a very minor matter, noted that there were differences between the expectations in relation to the children living with the parents and [X] who had two sets of rules. She reported [X] as indicating that she was able to stay up at her aunt’s home watching DVDs, etcetera, until she was tired and then she could go to sleep.
Ms T commented upon the fact that [X] was confused as to whom she should listen to and that that confusion arose from the different routines in the households of the aunt and the parents. She noted as follows:
If this arrangement continued where [X] spends a bit of time with Ms Manard, Mr I Pita and her own parents and siblings, [X] will suffer in the long run trying to understand the different upbringing and different values in each household.
I was assisted by Ms T’s unchallenged evidence in relation to this matter, both with regard to the circumstances of the gifting of [X] to the aunt and uncle and also her observations of the difficulties that are now experienced by [X], being a child within a number of households.
Called on behalf of the second respondent, the uncle, but not required for cross-examination were various friends as well as the minister of their church. Each of their affidavits were short but spoke about their understandings of Vae Tama in circumstances when a relationship breaks down. Ms B gave evidence in her affidavit of 14 November 2012 of her understanding of the consequences of a breakdown in a relationship when there is a ‘gifted child’. She says at paragraph 8 the following:
I am fully aware of the breakdown of the relationship between

Mr I Pita and Ms Manard and it is within the cultures of both Maori and South Sea Islander that the child would be returned to her bloodline relatives. Culturally, it is important in all Islander culture that you know where you came from and that is in both the Maori culture and the South Pacific Island culture and the knowledge of your ancestors and who you are within the family often dictates inheritances, family hierarchy and you simply would not put a child with a stranger in blood. The stranger in blood in this case is Ms Manard and given the age of [X] she would normally be expected to stand back from the family since she is not the blood relation. The bloodline issue is very important to our culture and for instance I know in my bloodline going back for some hundreds of years. The concept of family and bloodline is a very deep rooted part of our lives and helps define who we are.
Ms B was not challenged in relation to that evidence and whilst she is clearly not what might be termed an expert, her understanding of the culture of Maori and South Sea Islander peoples is significant in relation to this matter, because of her involvement in the two cultures. Noteworthy also are her comments in relation to [X]’s interaction with her uncle as well as with other members of her paternal family. She says at paragraph 9 the following:
I have on numerous occasions observed [X] in the presence of

Mr I Pita and [X] since the separation. She has a very good relationship with Mr I Pita and goes to him very naturally. Similarly she appears to have a deep and loving relationship with her mother Ms Pita, but it is in particular when you see her in the company of her brothers and sister that she seems part of a more complete family. [X] interacts very well with her siblings and certainly from my perspective I consider it good for her to be part of the family group and she seems very happy with them.
I accept Ms B’s evidence in relation to this matter, particularly with regard to her observations of the close alignment between [X] and her mother and siblings.
Mr F gave evidence by way of affidavit and was not required for cross-examination. He confirms that he is Tongan by birth and grew up in New Zealand. He indicates an understanding of those cultures and it is noteworthy that he has worked now as a project officer with the Department of Aboriginal and Multicultural Affairs. It reflects upon his knowledge in relation to issues upon which he comments.
He notes, at paragraph 7 of his affidavit, that he was aware that [X] came into the lives of Mr I Pita and Ms Manard by way of an informal form of adoption. He refers to the Tongan term, ‘Pusiaki’, which he notes is widely practiced throughout the Pacific Islands and is something with which he had grown up.
He notes additionally that within his family, such an arrangement had occurred where one of his brothers had given his daughter up to his youngest brother, pursuant to a gifting type arrangement and noted that it is a common practice, exercised within the Maori and South Sea Islander cultures and one in which he saw no difficulties for a child the subject of a traditional adoption. He comments, at paragraph 10, however, about his understanding of the circumstances that arise when a relationship between the parties who have been gifted a child breaks down. He says:
In circumstances where there are break ups of the adopting family unit through death or divorce the position of the parties has to be considered, but a very powerful consideration in our culture is the bloodline which is very significant in relation to the history of the child and which also involves inheritances and your family. That idea of the bloodline and the extended family to whom you are related is extremely important to Pacific Island culture and there is plenty of situations of children living with aunts and uncles for very lengthy periods of time and no one thinking very much about it because they are family, but it does not happen outside that bloodline relationship.
He then goes on, at paragraph 11, to say:
For a four year old child to be in a situation where the adopted parents have split, you would not leave the child with a non-blood family member. The connection to the blood line would be paramount.
He notes that a distinction might be drawn, in a situation where the child were, perhaps, 10 or more years, older than [X] here, where the child might make an informed assessment but notes that with a child as young as [X], she would invariably, as he put it:
...end up with the natural parents who are her bloodline family.
Mr F makes reference to his observations of [X]’s settled and comfortable position in the home of her parents and makes reference specifically to [X]’s enjoyment in mingling and spending time with her siblings. Again, whilst not an expert in relation to this matter, Mr F made comments about his understanding of traditional adoption within Pacific Islander groups and commented also about [X]’s settled arrangements in respect of living within the household of her parents.
Mr V, a congregational church Minister, gave evidence in his affidavit, dated 15 November 2012. I note that Mr V has not signed each page of the affidavit but has only initialled each of the first three pages and has signed the final page, however no objection was taken in relation to that particular aspect of the matter and as I indicated, Mr V was not required for cross-examination. He notes, at paragraph 4 of his affidavit, the following:
I have been requested to comment as an expert in relation to the concept of vaetama by the Second Respondent in these proceedings Mr I Pita, but apart from that request I know none of the people directly involved in this case.
His expertise, he indicates, arises from his theological studies and his close involvement with the Samoan community as a Minister, both in Samoa and New Zealand, for in excess of 25 years. He also notes his personal experience as a father of two Vae Tama children. Mr V then goes on to explain, from his perspective at least, the concept of Vae Tama. He says, at paragraph 5:
In terms of the concept of vaetama in the Samoan understanding I say that the word literally means to “separate a son or daughter from his or her biological parents”. The practice is always exercised within close family ties and connections. This is so because the child’s interests, heritages and genealogical connections need to be protected and secured within the family for the future of the child.
Mr V then goes on to talk a little about the distinction drawn between heritage and legal rights, particularly in relation to land and the consequences of Vae Tama when it happens outside the family unit. Most significantly, however, Mr V speaks about what he refers to as the proper Vae Tama process and at paragraphs 8 through 11, speaks of the expectations that are placed upon the adopting parents and the consequences that arise from the breakdown of a relationship between the adopting parents.
Mr V also speaks of Samoan cultural and theological understandings of Vae Tama if the child continues to be under the care of a person without the bloodline and finally, addresses what might be the case in relation to the aunt in this particular matter, in the circumstances of separation between the parents to whom the child has been gifted.

Mr V says, at paragraphs 8 through 11, the following:
8.In a proper vaetama process it is entered into with proper motives by the adopting parents. They must want and be ready to provide love to the child. They are accountable for the welfare of the child. The child has a right to expect to receive love and care from both parents just as the child would receive from his/her own biological parents.
9.The vaetama child is always returned to his or her biological parents in the event that they can no longer offer the love and care rightfully expected by the child. The purpose being that the best interests of the child to be cared for is a priority. Where the vaetama parents separate, given that there is no parental relationship anymore, the child returns to the biological parents.
10.Under Samoan cultural and theological understanding of vaetama if the Child continues to be under the care of the person without the bloodline the child would be deprived of his or her rights to parental care, rights to genealogical heritage, rights to family and blood relations as a Samoan. In particular in the case discussed with the Pita family where one party is of a different culture ie. Maori, the child would certainly be returned to her bloodline parents so that she has the opportunities and genealogical rights of her bloodline relations.
11.The separated adopted mother would not necessarily be excised completely from the child’s life, but within our culture they are certainly not equal. She would normally have some ongoing contact with the child, if she wanted to have it, but that would be discussed between the child’s parents and her. Normally a consensus would be reached as to her time involved with the child as long as the overall care and ongoing raising of the child remained with the biological parents. These issues would be determined on the bond between the two of them, the age of the chid and the wishes of the bloodline family.
I was particularly assisted by the unchallenged evidence of Mr V in relation to this matter. He certainly appeared to have some basis upon which it could be suggested that his knowledge in relation to Vae Tama extends simply beyond what might be family understandings passed on from one generation to the next and it is noteworthy that, as he says in his affidavit, he does not know any of the persons directly involved in relation to this case.
Also called, in relation to the proceedings and, required to give evidence in relation to the matter, was the aunt’s partner, Mr S. Mr S swore an affidavit in these proceedings on 16 November 2012. Mr S indicated that he was a social worker by training but confirmed that he now worked as a family dispute resolution practitioner in [M] and had done so since May of 2011.
Mr S spoke of his relationship with the aunt and of the fact that that gave him the opportunity to interact significantly with [X] and therefore, to comment upon the relationship between [X] and her aunt. More particularly, he says that he was a chief within his own family and as such, was able to comment upon the Samoan culture and traditional adoption. His understanding of Vae Tama is significantly different to that which is understood to be the position by the uncle, the parents and those witnesses to whom I have already made reference.
He says, at paragraph 18 of his affidavit, the following:
Similarly, if a child has been informally adopted, and there is a separation of the adoptive parents, traditionally the child remains in the care of the adopted parent they are most closely attached to.
He then goes on to give an example from his own family of his first cousin, upon separation from her husband, retaining care of the adopted child. Mr S comments about his strong belief in the cultural values, beliefs and practices associated with and underpinning Vae Tama, but says that they have evolved or changed over time. The issue of respect, he notes, towards the adoptive parent has eroded if there is embarrassment and/or anger involved or pride has been challenged, or, as is the case clearly in this matter, there is competition between the biological family and at least one member of the adoptive family.
Mr S speaks of what he considers to be the motivations of the mother and father and the more extended Pita family in relation to seeking [X]’s return to their care and speaks of anger, outrage, change of heart or mind, or belated concern as being sufficient motive for a biological parent to take a child back, therefore negating the initial arrangement. He says, however, that that is not in line with the traditional Samoan culture of adoption which is based on respect, and he says that his understanding of Vae Tama is that the child is not automatically returned to the natural parents, but, rather, that there is specific consideration given to the child’s attachments when considering the child’s future care arrangements.
Mr S notes, however, that it is his experience that, traditionally, in Samoan culture, the “blood” relationship is uppermost. There are times when the blood relationship is not the only significant factor to be considered, but must be looked at in line with considerations of the child’s emotional attachment and overall wellbeing when deciding with whom the child should be placed.
Mr S was challenged in relation to many of the statements that he made in that particular regard. He acknowledged, I think quite properly, that whilst his experience in relation to this matter was generally as a chief of the Samoan culture, there were often family differences as to how culture was applied, and he further acknowledged that in a more “traditional family”, it was the husband who often decides such matters.

He confirmed, understandably, that the blood ties were significant, but reinforced the statements contained within his affidavit, that the bloodline was significant, but was not necessarily enough to sever an existing adult/child relationship. He acknowledged, however, that in some families, perhaps most specifically traditional families still living pursuant to Samoan cultural conditions, that blood would be the most significant factor and, in relation to this particular matter, he acknowledged that it could be the case.
Mr S was questioned particularly about issues of shame or guilt and the effects that that might have upon members of a traditional Samoan family. He acknowledged that different families operated in different ways, but that in relation to some personal issues and, it would seem, that the future parenting of [X] would be classed as a personal issue, that there are instances in some families where the decisions are kept within the family and that outsiders are not privy to such issues and, in other families, it might not be of such concern to them.
Mr S did acknowledge, however, that at least in the Pita family, and particularly with respect to the mother and the father, there was a degree of distress that they experienced as a result of these family issues being known outside of the family.
Mr S did not have the best relationships with Mr I Pita, the uncle in these proceedings. He noted to the report writer, for example, that he thought that, “Mr I Pita’s community work was self‑serving and that it was utilised by Mr I Pita to give him some control over the Samoan community”. He indicated that he had made such statements, but that they were statements that he had made relating to his observations in or about 2009 and were not his views now.
It was noteworthy, however, that such comments were made, and I must say that I gained the impression from both Mr S and Mr I Pita, that there was little respect between the two, and little appreciation, particularly on the part of Mr S as an outsider looking into the family, of the role of Mr I Pita as ‘matai’, as well as an appreciation of the position taken by the mother and the father, in relation to the future parenting of [X].
Mr S finally was asked in re‑examination about difficulties that [X] might experience as a result of the fact that she would, if the aunt’s application were successful, be living in two households with two different sets of rules and attitudes. He responded that she would be getting the better of both worlds and that it would be enriching for her.
I gained the impression, however, that Mr S, whilst no doubt a caring and significant person in the child’s life, was motivated in much of what he said by his intention to assist Ms Manard in obtaining continued involvement in the life of the child, and that he did not fully and frankly discuss the importance of bloodline, particularly with regard to traditional Samoan families, as well as the real difficulties that would be experienced by [X] in living in two households with different attitudes and traditional beliefs.
Called on behalf of the second respondent, Mr I Pita, was his sister,

Ms S. Ms S is a family dispute practitioner now living in [M]. She is also, however, or was a lawyer in practice in Samoa and was involved in the preparation of the adoption documents, which took some significance in relation to these proceedings.
In her affidavit, which was filed on 19 November 2012, she details her understanding of the arrangements that were in place with regard to

Ms Manard and Mr I Pita having [X] come into their care. At paragraph 9 of her affidavit, she says the following:
The situation involving [X], as I understood it, was more of the concept of the adoption or as we call it in Samoan culture the “vaetama”. The concept of vaetama is a more formal process of adoption than say the situation of my children where I did not intend to give them up.
Those children, [names omitted], were referred to previously as being in the care of Ms Manard and Mr I Pita for a number of years. She then goes on, at paragraph 10, to say:
In terms of the legal document that was signed with regard to [X], I was at that time working for an [omitted] company in Samoa as a Lawyer and was asked because of my connection to the family to assist prepare documentation. I prepared the documents, but my understanding is that although they were signed, they were never formally lodged and that the arrangement has never been formalised under Samoan law. I thought it was a “vaetama” involving [X] and not in a way just helping out our brother Mr E Pita, as had occurred with me.
Ms S goes on to say that following the separation of Mr I Pita and

Ms Manard, she and her husband went to live with Mr I Pita and at that time, Mr I Pita had [X] in his care. She states her view in relation to this matter at paragraph 12 and one can, perhaps, extrapolate from that, that it is a reflection of her understanding of what constitutes Vae Tama, at least within the Pita family. She says at paragraph 12:
My view of [X] was that she would return to her bloodline and that was happening. As far as I could observe, keeping in mind I was then living with Mr I Pita, is that matters between Mr I Pita and Ms Manard were cordial and if Ms Manard phoned and asked to see [X], Mr I Pita would facilitate it. In the early part of the separation I assumed they would work things out and ultimately get back together but that did not occur.
Ms S goes on to note that once it became clear that there was to be no reconciliation between Ms Manard and Mr I Pita she assumed that

Ms Manard would, “gradually disassociate herself.” She then goes on to note that in or about the early part of 2011:
… there were discussions between myself, Ms Pita and
Ms Manard as to what to do in relation to [X]. Again my understanding was that the supremacy of the bloodline operated in everybody’s thinking. Certainly [Ms Manard] wanted to make sure that [X] was brought up in a loving family, but the concept was eventually that Ms Manard would distance herself and leave the family and get on with her own life leaving [X] to be brought up with her own family and blood relatives.
The statements that were made by Ms S, were clearly indications of her beliefs and understanding as to Vae Tama, but it is noteworthy that she was not cross-examined in relation to them. Her statements in relation to the basis upon which the discussions occurred between she,

Ms Manard and the mother, were unchallenged, certainly in so far as her understanding that the blood line was first consideration and that Ms Manard would eventually distance herself from relations with the child.
Ms S was cross-examined about the adoption documents that were prepared by her. In fact, it became clear that they were not prepared specifically by her, as she noted in her affidavit that she was working for an [omitted] company at that time and that she did not have any particular expertise in respect of family law matters.
She indicated in her evidence that she sought the assistance of a friend with some expertise in that area of law and that the friend prepared the papers and sent them to her to arrange execution. It perhaps explains to some extent the lack of clarity in relation to what might or might not have occurred with regard to indications given as to the effect of the documents, because it appears from Ms S’s own evidence that she was not fully apprised of the significance of those documents.
In that regard she noted, particularly, that she had explained the document to the mother and the father and noted that that was to, “make travel with [X] easier.” Only when pressed did she acknowledge that the document, in fact, appeared to be a document which had a far wider compass, in that it appeared to allow legal adoption of the child and that, if it had been registered, it would have had the effect of recognising Ms Manard and Mr I Pita as the legal mother and father of [X].
Otherwise, Ms S generally confirmed what she has observed in relation to [X]’s attendance at the home of the mother and the father. She says, at paragraph 17 of her affidavit, as follows:
I can say that within the environment of Ms Pita and Mr E Pita and their other three children, [X] is in her element. She plays with her siblings and treats them as such. They mix together naturally and seem to be a perfectly happy family unit.
Finally, and again significantly, Ms S makes comments about the terms of the relationship that [X] has with the mother and Ms Manard. She also states what her opinions might be in relation to what is in the best interests of the child, which is not, of course, of great assistance in relation to this matter, but she does go on then to explain her understanding of Vae Tama and the practice that would occur if a break up occurred. At paragraph 20 she says:
Ms Pita and Ms Manard are not equal in terms of [X]. Ms Pita is her Mother and Mr E Pita is her Father and it is in my view best that she remain in the family unit. No matter if a bond exists between Ms Manard and [X] it is my view that it is inappropriate in the circumstances to have two mothers and be trying to raise her in two households. Within the Samona [sic] culture [X] would always be returned in these circumstances to the natural parents and it is mos [sic] important that this occurs.
Ms S’s evidence in relation to this matter was of some assistance in relation to both further clarification of the position understood within the Pita family as to what constitutes Vae Tama and also in respect of her unchallenged statements with regard to [X]’s comfort in the family household and her interaction with the siblings.
I turn now to the evidence of the mother, the father, Ms Manard, the aunt and Mr I Pita, the uncle. As I indicated at the very beginning of these reasons, there is no doubt as to the love that all of these persons have for [X], and she is, indeed, a fortunate child to have so many significant persons in her life. Unfortunately, that significant involvement of persons in her life gives rise to the very great difficulties that now exist in relation to this matter.
Insofar as the father was concerned, I must say that I was generally impressed with him. I thought that his answers given in relation to the matter were honest and frank and, even in situations where they would not necessarily be of such great assistance to his case, he gave the honest and open answer.
For example, when challenged about the position taken by him in respect of any time to be spent by the aunt with the child, he retreated from the position which was outlined in the amended application and case outline filed only a matter of days before the hearing of the matter, and expressed his real concerns in relation to [X] and the difficulties that arise as a result of the breakdown in the relationship between

Ms Manard and Mr I Pita.
Similarly, he spoke of the importance of education and I think very genuinely spoke of the pride that he had in the educational achievements of his siblings. In cross-examination he noted that he came from a family of 11 children, that they were very poor and that they grew up to be doctors and lawyers and he said, ‘one [occupation omitted]. He said that he wanted more for his children than that, but I should note here that the father’s evidence and his self-deprecating statements in relation to him being a [omitted] did him great credit as a man and as a father. He recognised the importance of education and he wanted more for his children.
However, I gained the impression that he was a simple man. That is not, however, said in any way disrespectfully and I have no doubt that as a [occupation omitted] he was particularly adept and skilled at his tasks. It relates more to his view of the world.
He was not, however, so simple as to fail to understand the adoption process which was entered into in 2009. He emphasised on a number of occasions that he thought they were not adoption papers that he signed but rather provided something akin to guardianship. He commented, however, that he had read the documents, and it was noteworthy also, that his sister, who had facilitated the preparation of the documents gave evidence that she had explained the documents to him.
The distinct impression that I gained was that the intent, though perhaps grudgingly given initially by the father and the mother, was for [X] to be the child in all respects of the uncle and the aunt, and only when it became clear that the adoption papers had not been filed and that, therefore, there was only in place a traditional adoption arrangement, did the father and the mother take the stance that they have taken, in relation to this matter.
That flows particularly from the fact that when the uncle and aunt separated ,it was not initially the case that the biological parents were involved in any discussions with regard to the future arrangements with respect to the parenting of [X] and it was decisions that were made by Ms Manard and Mr I Pita, which were acceded to by the parents.
Notwithstanding that the stance now taken might be seen as, to at least some degree, opportunistic in light of the breakdown in the relationship between Ms Manard and Mr I Pita I was otherwise enormously impressed by the determination of the father and his desire to do what he considered to be best, not only for [X], but for all of his children. He was, I would assess, a man very much attuned to the traditional and cultural expectations of a Samoan father and husband.
He agreed to the initial arrangements in relation to [X] going into the care of his brother and his wife. He also was very firmly of the view that blood and blood lines were most significant in relation to the parenting of children and, that when the relationship between

Ms Manard and Mr I Pita had broken down, that it was only appropriate that [X] should return to the care of he and the child’s mother.
He acknowledged however, that he had seen the aunt with [X] and that they did things together as would be expected between a mother and child. He noted though that it was his observation when the uncle and aunt were a couple that he saw Ms Manard and [X] as a mother and her child doing things together.
His traditional views and their effects upon him on a day to day basis became clear especially when he was asked whether he thought that

Ms Manard loved [X]. He took some time to answer and then said “I don’t think so. She’s the one that walked away.” It was in some respects a troubling answer but also one that was understandable in light of the very significant position that the father took in relation to family.
He was asked whether he acknowledged that in fact it was the case that Ms Manard walked away from Mr I Pita and not [X] and I thought that his answer was considered and understandable. He indicated that it was not his role to determine that particular aspect of the matter but it was important for him to appreciate that if Ms Manard and Mr I Pita wanted the best for [X], then they should do better than they had done. By that I assume he meant to let their relationship break down.
He indicated then that he had spoken with his wife, and that they had agreed that, “we didn’t want our kid in the middle of this”. It was a hard answer but it was also one that I thought stemmed from his understanding of his role as the biological father of the child and a very real and genuine respect for [X] and her rights to have, as happy and stable a life as possible.
The father’s position in relation to this matter was perhaps a little difficult to accept when one comes from, as counsel for the parents said, the white European culture but is, by the same token, an entirely understandable position when one considers, as must be appropriate in this case, the traditional Samoan cultural ways.
The father indicated that he wished to have significant reductions in the time spent by [X] with Ms Manard. He also indicated, and I accept without hesitation, that he would comply with any orders of the Court.
He was asked to comment upon the fact that [X] had moved between the households of he and his wife and Ms Manard as well as, to a lesser degree, the household of Mr I Pita for over a year and he indicated that that had occurred but that he, “didn’t’ like it”. I thought that his answer given in relation to the matter was honest and open and reflected his concerns in relation to what he believed were the appropriate arrangements to be made with regard to the future parenting of [X].
I also accepted as genuine his statements made in relation to

Ms Manard. He indicated that whilst he didn’t agree with any time being spent of a structured nature between [X] and Ms Manard, he accepted that she was a good lady but that she was no longer part of the family and, of course, as I have indicated, in his view the issue of family and blood was paramount.
The father impressed me very much as a man doing all that he could for his family, working hard and raising them with respect for their culture and traditions. Toward the end of cross-examination by counsel for Mr I Pita, he was asked about the issue of respect and whether in fact Ms Manard gave him any respect as the biological father of the child and, more particularly, as a person steeped in Samoan tradition. He indicated that he did not believe that Ms Manard gave him respect and that it was hurtful as well as embarrassing for him, as the biological father of the child to be in a situation where he was fighting for the child, when he genuinely believed that the proper course and only course pursuant to a traditional adoption, was for the child to return to his care.
He also commented that other people in [M], outside the family, knew of the situation that existed and that he was troubled by it and was having a hard time. He then said with tears in his eyes, “I love my family”, and I accept that that is the case. He spoke of his family and his wife in the most respectful and loving of ways. He noted his wife’s care for the children and commented that it was very good and that she reads to the children from Bible stories and she assists with their schooling and education.
He then said, “My wife does a great job as a mother. I feel blessed.” I accept that as a genuine statement of a man struggling to deal with circumstances beyond his full comprehension or control, particularly, when he very much was of the view that the proper and only course to follow, was to have [X] revert to the care of he and his wife.
Ms J Pita is the mother in these proceedings. Again, I was enormously impressed by her. She confirmed that she was supportive of the more limited time that the father suggested might be appropriate to be spent between [X] and Ms Manard, but noted that while she agreed with what he proposed, it was not because he was head of the family but because it was what she believed was appropriate from her own perspective and more particularly, from the perspective of what was in the best interests of [X].
The mother indicated early in cross-examination by counsel for

Mr I Pita that she, like the father, wished to maintain the relationship with [X] and I think, very tellingly, she said, “I was always the mother of four children and that included [X].” The mother was indicating that she never intended to step out of [X]’s life and that appears reflected clearly in the fact that, after Ms Manard and Mr I Pita moved to [M], the mother and the father, along with their three other children, took steps to move, to remain near to [X].
I accept that that bond between mother and child is incredibly strong and that the mother is an extremely able and capable parent of her children. In that respect, I note specifically the comments of the report writer, Ms P, when she noted, for example, that the mother was an incredibly impressive parent, and that what she provided in relation to the parenting of these children was outstanding.

I also thought that the mother was a most intelligent and perceptive woman. She was asked about her concerns expressed in her affidavits with regard to the disruption to [X] in the various movements between the households. She was asked why she was concerned about that and her answer was most insightful. She said, words to the effect, “because it was not in [X]’s best interests, it was in the interests of the adults”.
I accept, absolutely, that the arrangements which currently exist, having the child moving between three households, with numerous household changes each month, is something focused far more on the parents and the aunt and uncle and their wishes, than a reflection of the best interests of the child.
Similarly, I thought the mother was most perceptive in talking about the difficulties that flowed from the different households and lifestyles of she and the father, as opposed to Ms Manard and Mr I Pita. In that respect, she was asked about whether Mr I Pita would respect her role as a parent, and she indicated that she had some concerns. Those concerns stemmed from the fact that Mr I Pita had, as the mother put it, lots of money and therefore was able to do very much with [X] and therefore it gave rise to a situation of what she described as, “unfairness to she and the father and their other children”, as they had less funds available to them.
She noted, that her assessment was that Ms Manard also treated [X] the same way, and that the child was certainly able to have made available to her, significantly more than would be the case within the household of she and the father.
The mother was asked about the circumstances of the traditional adoption and in particular the execution of the ‘consent of natural parents to adoption’. The mother’s position was to say that she did not really read those documents and just signed them, and that as she understood it, it was the same situation as the father believed to be the case, in that it provided more for guardianship of the child and an opportunity to travel, though she did acknowledge later, as did the father, that the child already had the opportunity to travel, holding a passport.
I was a little troubled by the mother’s evidence in this regard, because noting, as I did previously, that she is a capable and intelligent woman, there appeared to be, at least a degree of opportunism arising from the fact that the legal adoption did not occur, and when the relationship between the uncle and the aunt broke down, there was the opportunity to have [X] returned to her care.
By the same token, however, I understand the position taken in relation to matter, and whilst there was acquiescence on the part of both the mother and the father to [X] being traditionally adopted, at least by Ms Manard and Mr I Pita, there was also a very real desire to remain closely involved with the child and, upon the breakdown of the relationship between the uncle and aunt, to immediately reconsider their role in relation to the parenting of the child.
The mother was more able to agree than the father however, that there was a close bond between Ms Manard and [X]. She acknowledged that [X] looked toward Ms Manard as a mother figure, but did not accept the concerns that were expressed by Ms Manard and also by the report writer that [X] might suffer emotional harm if Ms Manard were excluded from any relationship with the child or even were to have a significantly reduced interaction with [X].
The mother’s position there, was to simply say that she did not see that there would be any difficulties with that, because [X] would be living with her family. Such a position stems, I think in part, from the over-arching significance of family and tradition within the household of the mother and the father, but I accept without hesitation, that it is a genuinely held view in relation to the child.
The mother was an impressive witness. Whilst again, there may be some concern as to the lack of a full appreciation of the possible consequences for [X] in severing ties or reducing opportunities for interaction with Ms Manard, I accept that the views of the mother are genuinely held and that they stem from her concerns to ensure that the best interests and the welfare of the child are to the fore and that those views arise from the very traditional beliefs that continue within the home of she and the father.
In respect of those traditional beliefs, the mother noted that whilst her agreement to [X]’s traditional adoption in 2009 was, as she put it, “The hardest decision she had ever made,” she indicated that she gave respect to her husband, to her mother-in-law and to Mr I Pita. When asked to explain what that meant, she became a little distressed, but I thought it only emphasised the hurt and the difficulty that the mother experienced at the time of her child being traditionally adopted, when she said, “That’s how we grew up. We respect our elders and all blessings come from that.”
She was asked whether, in the circumstances, she could have refused the adoption and she said, I think rather tellingly, “To me, no.”
The mother was a traditional Samoan woman. She held the concept of respect in very high regard and it influenced her in so many ways in respect of her actions and behaviours. She was also, however, insightful in relation to her child and it did her great credit.
She was asked in re-examination about her comments with regard to the unfairness that flowed from the fact that [X] spent significant time within the households of her aunt and her uncle and that that caused difficulties for [X]. She was asked what she meant by that and responded with words to the effect:
When [X] goes to three homes it is not in her best interests; that is because, when she is with us we share everything within the family and between the kids and us. She is treated differently by her aunt and her uncle and it gives rise to difficulties in behaviour within our home.
That explanation is, I think, a genuine and insightful one and reflects the very real concerns that exist in relation to the future parenting of this child should such circumstances, as suggested by Ms Manard, continue.
I turn now to the evidence of Ms Manard, the aunt. Ms Manard, like the mother, the father and Mr I Pita, was a very impressive witness. She is clearly a most intelligent woman and I have no doubt that her motivations, in relation to the orders sought in relation to these proceedings stem, only from what she considers to be in the best interests and the welfare of the child. Her own evidence in relation to the matter however, exemplifies the difficulties that will face the adults, but more particularly the parents, if orders are made in terms of those which are sought by her.
I say that because, very early on in cross-examination, she indicated to counsel for the parents that her understanding of the issue of respect is very different to that of the mother and the father. I noted earlier that the mother said that she acceded to the request for a traditional adoption of [X] because of the request being one made by her mother-in-law and brother-in-law, Mr I Pita, the heads of the family and because of the issue of respect that arose.
Ms Manard did not agree that that was the case, and noted quite specifically that she could have rejected the view of her mother-in-law in relation to an adoption or otherwise, if she had considered that to be appropriate.
Ms Manard said that she realised the significance of blood relations and how that might affect the family unit. She indicated, however, that different families operated in different ways. She noted, for example, that because she and Mr I Pita were so busy in their lives, they shared many of the tasks involving the parenting of [X] between them, but that that did not necessarily happen in other families.
It exemplified the difficulty that arises in relation to this matter and the different understandings that all might have, in relation to traditional Samoan beliefs.
Ms Manard acknowledged that she also saw some difficulties with [X] when moving between the households, but from her own perspective she saw the child as settling into her home, but noted that when the child returned to her care she was, as she put it “initially tense” and that [X] could be verbally and physically aggressive and insistent on

Ms Manard’s attention.
Ms Manard very properly acknowledged the importance of “blood” to the Pita family and indicated that she understood that that position affected the mother and father and their wish for [X] to return to their family unit. She said, however, and I accept that it was a very appropriate assessment, that she has tried to give [X] up to the Pita family when she had placed [X] primarily in the care of Mr I Pita, so as to break the bond between she and [X], but that it had not worked.
Ms Manard had attempted to act in a manner which respected the traditional views of the Pita family, but had, at least from her own perspective, seen the affects upon [X] and recognised, again from her own perspective, that the wants of the child and the possibly damaging consequences for the child overrode those traditional Samoan concepts. It did Ms Manard great credit that she recognised those various competing considerations and simply characterised the caring, loving and compassionate nature of Ms Manard.
Ms Manard also noted the differing values within the houses of she and the mother and the father and noted that there would obviously be difficulties for [X] in moving between the two homes and therefore the two lifestyles, as well as the difficulties in making adjustments within the households. Ms Manard, when considering that particular aspect of the matter, acknowledged that there may be an order made for [X] to return primarily to the home of her parents and she was asked whether she would still want to see [X]. She responded, I think, very impressively and most insightfully, that it would also depend on how it affected [X].
Ms Manard was a most impressive witness. Her sole motivator in relation to this matter was what she considered to be in the best interests of the child, and whilst her views were very different to those of the mother and the father, she had the grace to acknowledge that their views were matters which genuinely needed to be considered in relation to these proceedings.
That is not to say that like each of the witnesses called in relation to the matter there were not criticisms that could be drawn and made in relation to the witnesses. In that regard I was troubled obviously by the stance taken by Ms Manard in respect of her continued interaction with the two boys, [names omitted], who had been cared for by she and

Mr I Pita.
They had been a part of the household for a considerable period of time, eight years or more, leading up to the time of separation, but

Ms Manard had not sought to have an opportunity to interact with them or spend any significant time with them. It appears that Ms Manard was less inclined in that regard to consider the possible emotional harm to the children than would be the case with respect to [X], though I acknowledge the difference in ages of the children.
I was also somewhat troubled by the fact that Ms Manard acknowledged that she and Mr I Pita were experiencing difficult times in their relationship at the time of the traditional adoption of [X] and that there had been no direct discussions between she and the mother and the father, in relation to the traditional adoption until after there had been discussion with Mr I Pita and his mother, the leading female member of the family, and agreement had been reached with regard to [X] being traditionally adopted.
She acknowledged that the mother and the father may not have been aware of the difficulties in the relationship and, of course, that specific issue is one that has given rise to the difficulties that now exist in relation to the future parenting of [X], as a result of the breakdown in the relationship between she and Mr I Pita.
Ms Manard continued to show respect, at least in terms of what she considered respectful behaviour, toward the Pita family. She could have understandably been angry with the family, as a result of the position taken in respect of this matter, but noted when talking about the separation, that the Pita family were not angry with her, but were very understanding, and they were, as a family, sad that the breakdown of the relationship had occurred.
Ms Manard acknowledged the importance of blood and more particularly, indicated that as a result of her recognition of that, knew that the parents would not agree to [X] being placed with her. More particularly, she understood that it would become an issue in relation to her future parenting and would lead to the difficulties that have now given rise to these proceedings.
Ms Manard knew that this issue would arise in relation to the matter, and I must say that it surprised me, therefore, that she gave evidence that when she had decided to leave, she spoke to the parents to tell them of that and indicated, that if they had said to her that she could not take [X], then she would have had to rethink her decision to separate. Her own evidence would indicate that she knew that they would not agree, and that, therefore, there was a very well-known consequence of the separation but it was only one of the many factors that needed to be considered in relation to this proceeding.
The situation that presently exists is not ideal. It leads to the confusion that a number of witnesses spoke of, from [X]’s perspective, and clearly then leads to the behavioural issues that the mother, the father and Ms Manard have spoken of. It goes further than that, however, in that there are simply different lifestyles and beliefs held by the various parties to these proceedings, and in particular that became clear when Ms Manard, in answer to a question which was to the effect, “Did she realise that differences in the households could lead to confusion for [X]?”, Ms Manard indicated that she has raised the child “to question things”.
She acknowledged that that did teach her to act in a manner which would be very different to that within the Pita family unit and that it did then have the potential to be destructive for [X] and to certainly give rise to concerns for the affect upon [X].
Ms Manard spoke very positively of her relationship with [X], and it also appears clear that there was and remains a generally positive relationship between the mother and Ms Manard. However, I was troubled by Ms Manard’s attitude to the mother’s present care of the child, when the mother had cared so significantly in the past when

Ms Manard and Mr I Pita were still together, but that circumstances had now changed.
It is clear that on occasions, the work commitments of Ms Manard mean that she is required to be absent at times when the child is to be with her, and she then makes arrangements, either for her niece or for Mr S to care for the child. When asked whether it was better for [X] to be cared for by her mother than by Ms Manard’s niece, she responded, I thought rather strangely that, “that was not the case whilst the child was in her care, because it was not better for [X] as the transition is too upsetting.”
Here, however, the orders that are sought by Ms Manard will involve significant occasions for transition between the two households, and if the upset would be too great for periods of care at after school time, then one can only imagine that there would similarly be concerns as to the regular transitions that would occur otherwise.
I was also troubled by the stance taken by Ms Manard in early 2012 when she holidayed in Samoa with Mr S. At that time, she had the child in her care, but did not tell the mother and the father of the fact that she was leaving and left the child in the care of her sister, rather than making alternative arrangements with the parents. She said that she thought that that was an appropriate step and a good idea, but, more troublingly, knowing the concerns that the parents have in relation to the parenting of this child, indicated that she did not think that it was something that would give rise to a concern and that she would do it again.
Ms Manard spoke about the difficulties in relation to transitioning, but acknowledged that it may be the case that [X] transitioned into the mother’s and father’s residence more easily than might be the case of her transitioning to she or Mr I Pita’s residence, because she had her siblings there and was able to immediately fall back into that sibling interaction role. She acknowledged that that may be a very real factor in relation to the matter, and though it may have been difficult for her to acknowledge, indicated also that it might explain the other difficulties with regard to transition into her household.
When speaking about the issue of parental responsibility and the fact that she now proposes equal shared parental responsibility, she indicated that she was of the view that equal shared parental responsibility was possible and that, in her view, both she and the parents had the capacity to make fundamental changes to their views, in order to work together. However, within a few questions and perhaps with some reality testing, Ms Manard acknowledged that there may be greater difficulties in that regard.
For example, she indicated that whilst the parents sought for her to have limited involvement in the child’s life, and, therefore, in decisions to be made with regard to the child, she still thought that equal shared parental responsibility was workable, but when challenged acknowledged that equal time may have fundamental difficulties unless there could be movement. When asked, however, whether she could change her attitude to, for example, the traditional view of respect for elders, she did not think that that could occur, but that rather there would need to be some discussion or talk in relation to the matter.
She acknowledged, however, when it was put directly to her that neither she nor the parents could change in relation to that fundamental issue, and it seems that that would be telling in relation to the difficulties that would then arise with regard to the parents and

Ms Manard seeking to make joint decisions in relation to the child.
As I say, I was impressed by Ms Manard. She gave me the distinct impression that she was caught between a rock and a hard place. She realised the traditional and cultural beliefs of the mother and the father and how that influenced their thinking in relation to the appropriate arrangements with regard to the child. She had to balance that against what she considered to be in the best interests of the child, and that included maintaining significant and substantial interaction between she and [X], but by the same token it gave rise to the very real difficulties that the child would experience on almost a daily basis moving between the two households with the different cultural and lifestyle beliefs and expectations.
I turn now to the evidence of Mr I Pita. Mr I Pita was questioned about his role as the ‘matai’ or chief of his family and his responsibilities within the family. The impression I gained of Mr I Pita was that he took that role very seriously and that the traditional expectation upon him as the chief of the family gave rise to his very firm views in relation to the appropriate course to be followed with the parenting of [X].
Mr I Pita spoke about the traditional adoption, ‘Vae Tama’ and indicated that in this case it was an arrangement within the family, effected by a blood connection rather than an adoption of a child without a blood connection. He acknowledged that it had come about as a result of Ms Manard speaking with him about the possibility of a traditional adoption and that whilst he was not necessarily initially receptive to the proposals, realising that there were difficulties in their relationship, the influence brought to bear by his mother who was the female head of the family was significant, and that that had influenced the decision toward a traditional adoption.

However, there is the general provision contained within sub-section (4) relating to other matters that might satisfy a court that equal shared parental responsibility should be rebutted. In this instance, I have already detailed the concerns that I have about the parties’ capacity to work together, particularly when only some issues of long-term care, welfare and development are proposed by Ms Manard to be shared, and am not satisfied that such an arrangement would be either in the best interests of the child or even workable.
Additionally, and perhaps unnecessarily, I would also note that there is a very clear indication within section 61DA(1) that the presumption relates to a child’s parents having equal shared parental responsibility for the child and in this instance, there are only two parents.

Ms Manard is a significant person in this little girl’s life but she is not a parent, adoptive or otherwise, and the legislation repeatedly draws a clear distinction between the role and status of a parent and of others concerned with the welfare and care of a child. In that respect, I note the distinction drawn and reinforced in the objects and principles, section 60B, and the considerations as detailed in section 60CC.
Section 4(1) of the Family Law Act, headed “Interpretation”, is as relevant, in these terms:
In this Act, the standard Rules of Court and the related Federal Magistrates Rules, unless the contrary intention appears:
parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.
Clearly, an adoptive parent of the child can be considered for these specific purposes, but in this case there is a cultural or traditional adoption but no formal adoption. Whatever may have been contemplated at the time that the “gifting” of [X] occurred, it is clear that a formal adoption did not take place and whilst at least from the parents’ perspective their consent was given mistakenly, it has now been withdrawn and there is no basis upon which adoption of a formal nature could occur. If anything, the situation here is an even more clear-cut example than that which arose in Tomas and Anor & Murray. There, an adoption had occurred, but was discharged in Samoa, though without the knowledge of the applicants, but Loughnan J noted at paragraph 128 the legislative position and intent of the Family Law Act. His Honour said:
The provisions of Part VII distinguish between parents and grandparents and others. The Murrays and the Tomases have all been the child’s parents. Ms Murray is the biological mother of the child and to the extent that her status was changed by the 2008 Samoan adoption, as at the date of the hearing, the Samoan adoption has been discharged. There is no definition of ‘parent’ in the Act but by s 4 of the Act ‘parents’ include those who adopted a child according to law, including outside Australia. Therefore the Tomases were adoptive parents. The legislation does not refer to those who “are or who were ever parents” but only to those who “are parents”.
If it were necessary, and I have already indicated that I do not consider that to be the case, I would without hesitation find that Ms Manard is not a parent of this child pursuant to the definition or otherwise as envisaged within the legislation, and that therefore the position or status of the biological parents takes precedence, at least insofar as the issue of parental responsibility is concerned.
I am satisfied that the presumption of equal shared parental responsibility is therefore rebutted as not being in the best interests of this child and intend to order that the parents have equal shared parental responsibility as between them, to the exclusion of

Ms Manard.
It is not necessary, legislatively, for me to consider those matters that arise pursuant to the provisions of section 65DAA because of the finding that equal shared parental responsibility, at least between the parents and Ms Manard, is not in the best interests of the child. However, that does not mean that consideration of equal time or substantial and significant time, as defined in section 65DAA, is not appropriate in light of the type of application that is before the court. If one is to consider the best interests of the child as paramount, then all proper possibilities should be considered.
In that regard, therefore, whilst addressing the considerations set out in section 60CC(1), (2), (3) and (6), those matters of reasonable practicality, as explained in section 65DAA(5), should also be to the fore in any discussion. Section 60CC(1), (2), (3) and (6), and section 65DAA(5) are in these terms:
Determining child's best interests
60CC(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
60CC(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(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;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) 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, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii)   any evidence admitted in proceedings for the order;
(iv)   any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
…
Right to enjoy Aboriginal or Torres Strait Islander culture
60CC(6) For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)     to develop a positive appreciation of that culture.
65DAA(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)     how far apart the parents live from each other; and
(b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)     the impact that an arrangement of that kind would have on the child; and
(e)     such other matters as the court considers relevant.
Many of the considerations required to be looked at to determine what is in [X]’s best interests are not overly significant in the final determination required, with regard to this matter. I would emphasise however that that is not because of any negative connotation that might be drawn but rather because there are so many positives in the family and lifestyle of this child. That is best exampled by the fact that [X] has a meaningful relationship with both of her parents, as well as of course the very significant relationship with her aunt, the “gifted mother”. There is no counter-balancing need to protect the child from physical harm, though as will be addressed a little later, there will be a need to consider issues with regard to the child’s future psychological well-being.
Similarly, issues relating to the child’s wishes and the nature of the relationship that she has with her parents and others significant in her life, are all positive. The parents and the “gifting parents” have taken every opportunity to participate in the child’s life, to spend time with her and to communicate with her, and have as best they have been able, involved themselves in decisions to be made with regard to the life of the child.
To differing degrees, but not so significant as to influence the determination of this matter, all involved have a capacity to provide for the needs of the child, including her emotional and intellectual needs, and have shown a responsible attitude to the parenting of [X], and to the obligations that arise from parenthood.
If they were the only factors needed to be considered in relation to the matter, then the proposals for equal time or significant and substantial time would be almost unanswerable. But the issues relating to the parents’ and the aunt’s capacity to implement an arrangement for the child spending equal time or substantial and significant time with each, as well as their capacity to communicate with each other and resolve difficulties that would arise from such an arrangement, loom large. Most significant of all, however, is the concern as to the impact that such an arrangement would have upon [X].
The father’s attitude to the involvement of the aunt to any significant degree or at all would, to many, seem harsh and impracticable. He appears unable to recognise the attachments that exist between [X] and Ms Manard and from the previously referred to “western perspective”, is hard to comprehend. The father however, must be seen as a man who is the product of his culture, his family and his upbringing. He is not rejecting the attachment between [X] and the aunt out of bloody-mindedness or determination to achieve his own wishes for the future parenting of the child, but rather because he cannot comprehend a world in which family is not the pivotal factor in determining attitudes and beliefs.
Culture, family and respect are all pervasive for the father and the mother, and of course, if this were a proceeding involving an Aboriginal or Torres Strait Islander child, then the provisions of section 60CC(3)(h) and (6) would be to the fore. In my assessment, however, when one considers the fact that the best interests of the child is paramount, and that the court is required pursuant to the provisions of section 60CC(3)(m) to consider any other fact or circumstance that may be relevant, the culture and family beliefs and traditions are of significance in the final determination of this matter. Also significant, however, are the different family groupings and lifestyles within the households of the biological parents and Ms Manard.
Of significance in relation to the determination of this matter is the long-term affects upon the child [X]. A concern certainly was expressed on the part of the parents that the financial circumstances of the two households, as well as the cultural beliefs, was a matter that would raise concerns in respect of the child and her ability to adjust to two different families and lifestyles.
The household of the biological parents is one that consists of mother, father and siblings of [X], though until recent times [X] knew them as an aunt, uncle and cousins. Notwithstanding that however, the court in any orders that are made must be forward-thinking, as is emphasised by section 60CC(3)(l) requiring consideration of orders that will be least likely to lead to further proceedings in relation to the child, as well as section 65DAA(5)(d), requiring the court to look at the possible future consequences of arrangements that are made with regard to the parenting of the child.
[X] now lives for a significant period each 28 days in the household of her mother and father. It is acknowledged that she has a close and important relationship with the mother and a relationship with the father that a year ago was described as somewhere between father and uncle, but which was also acknowledged as developing and which, in my assessment, would have improved insofar as a meaningful relationship is concerned. She was, pursuant to the previous arrangements, spending eleven nights with the biological parents, eleven nights with her aunt, and was to spend six nights in each 28 with her uncle. That was not what was occurring however, and Mr I Pita had already determined that his role in the child’s life was to be one of a much-loved uncle, rather than a conflicting role of father figure balanced against the biological father of [X].
Accordingly, [X] was spending the majority, if not the entirety, of any time to be spent with Mr I Pita with her biological parents, and he was seeing the child more in the role of a visiting family member than in any way as a father figure. On a purely mathematical basis, therefore, more than 60 per cent of the child’s time was already spent in the home of the parents and, more particularly, was spent in close interaction with her siblings.
Ms P acknowledged the obvious relationship between [X] and her siblings and whether that was one that could be characterised as brothers and sisters together, or cousins together, as was the understanding until recent times, it is important to recognise that the relationship is a significant one and one that needs to be recognised, particularly in light of the differences within the two households.
[X] is, in the parents’ home, one of four siblings, all of whom have to be dealt with in a fair and balanced way together. At the present time, 60 per cent of her life is made up of shared experiences with her siblings and with an understanding that not all that is hoped for or sought can be provided. Quite simply, she needs to know that there are boundaries or limitations on what she might wish for and that what is available to her within the home is available to her siblings as well. Such a situation does not arise in the home of Ms Manard. There, she is an only child and one who it would seem is generally accepted as receiving all that she could reasonably wish for and would no doubt be much loved and, without intent on the part of Ms Manard, spoilt and indulged.
It seemed certainly to be the case now that [X] understood and accepted the distinctions between what could be available to her in the two homes and moved between the two without any real difficulty, though it should be noted that Ms P observed some concerns, though they could be explained as arising from tiredness or exasperation at the number of changes that occurred at the time of interview.
However, at the present time, [X] has just turned 5 and her siblings are progressively a little older. They are able no doubt at this time to ignore such differences and to simply enjoy their time with each other, when and how it might be available. As they grow older, however, concerns must be held as to the future relationship between the siblings, stemming either from feelings by [X]’s older siblings that they are deprived of the opportunities available to her because of significant interaction with Ms Manard, or alternatively and perhaps even more troublingly, a feeling of entitlement by [X] that she can have and require more than is available to her siblings.
The father, in particular, alluded to such concerns, when noting the distinctions between his career and that of his siblings, as well as of course, Ms Manard. The aunt and the uncle are both [occupation omitted] They have no biological children, though there was certainly some responsibility, at least until separation, for the boys, [names omitted]. [X]’s life and the opportunities available to her, if the aunt and uncle remained as a couple, were very different to those of her siblings within the parents’ home, and even following the separation the opportunities available to [X] in Ms Manard’s home far outweigh the opportunities available to her siblings.
Such a distinction is not one that in my assessment can be ignored. The relationship that [X] has with her siblings is, one would expect, one which will have a more significant length than will be the relationship with either the parents or Ms Manard, and therefore is a most important one to see fostered and developed. To make orders which would see a gulf open between [X] and her siblings in respect of their future expectations and, more importantly, their relationship with each other, is an order which would give rise to very real concerns as to its impact upon [X] and her future relationships. That is a matter which is of particular concern in respect of any final determination of this matter and which would, in my assessment, be of real concern to the future well-being of the child.
The issue of culture also is important. The parents are traditional in their acceptance of the importance of family and respect in all elements of their lives. As noted by Corrin and Mulitalo in their article, “family is the institution that shapes and determines a person’s future.” Respect for one’s elders and the hierarchy within the family is essential to fitting in and accepting the position of all within the family.
Ms Manard certainly spoke of elements of respect and of her understanding of the significance and importance of family to the biological parents. Notwithstanding that appreciation of the importance of such matters, however, she certainly did not see them as all-encompassing in relation to [X]’s future and to the type of person that she would become. Quite simply, Ms Manard was an educated and articulate woman who would teach [X] to question and challenge what was suggested to be the norm or the expectation of her traditional family unit. She did not, however in my assessment, appreciate the future difficulties that that might reasonably be expected to cause for [X].

I was concerned particularly by Ms Manard’s and also Ms P’s belief that [X] could move between the two households and between two sets of standards or expectations, without difficulty. Both Ms Manard and Ms P, with respect, seemed to suggest that as [X] moved between the homes as a four or five year old, was an indicator of the ease that she would be able to move between the homes, the expectations and the beliefs of those homes as an adolescent or teenager.
Ms Manard and Ms P, in my assessment, minimised the future difficulties for [X] and suggested that the challenges that might be thrown up as a result of the child’s observations at school of her peers and their lifestyle, would be similar to those that would arise from living within two homes in which there were two different sets of rules, two different sets of financial circumstances, two different sets of beliefs and in one home, three siblings experiencing only one set of rules, financial circumstances and beliefs, failed to in any way appreciate the future impacts upon the child and therefore the unsettled nature of the child’s life.
That issue of the impact upon the child and the future consequences for her, of living within two such different homes, is a matter which in my assessment is unanswerable. The future consequences for the child, including particularly her future relationships with her parents and her siblings, is a matter of great significance in relation to the determination of the parenting arrangements with regard to [X], as well as any determination of what time should specifically be spent in the households of the parents and Ms Manard.
As was noted by a number of witnesses and also within the article “Adoption and Vae Tama in Samoa”, customary land and the entitlements of a person born to a Samoan mother or Samoan parents to customary land is of significance. No specific evidence was available in relation to the effect of a shared parenting arrangement in relation to entitlements of that nature, but certainly a concern was expressed that such orders may affect rights into the future, not only of [X], but of her children as well.
Such future entitlements are of course not a matter upon which specific findings can be made by me, but if as properly required, consideration needs to be given to the impact of such arrangements, then it is another factor to be included in the weighing up of what arrangements are in the best interests of this child in the long-term.
I have at length addressed issues here in respect of responsibilities with regard to future decisions to be made in relation to the parenting of [X], and also indicated the concerns that I have in relation to orders which would provide for equal time or even substantial and significant time being spent between the homes of the parents and Ms Manard. That is not to say, however, that there should not be the obvious recognition of the relationship between [X] and her aunt, the “gifted mother”, and the need for that to be fostered and developed. To simply sever such a relationship could not be contemplated as being in the best interests of [X], but it must be balanced against the need to foster, develop and build a meaningful relationship between [X] and her parents, and in particular, her father, which relationship was observed a year ago to be less than that which one would expect of a father and daughter, as well as to foster and develop the most important relationship that exists between [X] and her siblings.
The parents’ proposal, at least until the matter was under way before the court, included a recognition of there being a need for some time to be spent between [X] and Ms Manard, but that it be recognised as of lesser significance than the relationship between [X], her parents and her siblings. At trial, the position of the parents enunciated by the father, was that there be no specific time, other than that which might be agreed, but of course that envisaged a respectful and considered communication between the parents and Ms Manard, which despite the best intentions of all concerned, would not necessarily occur.
I am more of the view that some specific arrangements for opportunities to be spent by [X] with her aunt, recognising their close attachment, but also acknowledging the primary importance of family, is the most settled and understandable basis for [X]’s relationship with her aunt to be continued. Some time needs to be available for the special relationship between [X] and her “gifted mother” to continue but it must be recognised that it is a relationship without the primacy of two parents living together with the other children of the relationship.
Difficult as it may be in the short term for [X] and also for Ms Manard, an opportunity for time significantly less than that which is presently occurring is in my assessment the appropriate arrangements now and into the future. It allows the continuation and recognition of the close bond between [X] and her aunt, as she will over time become, rather than her “gifted mother”, but also more properly recognises the importance of family, culture and respect.
I am satisfied that an opportunity for one weekend per month, as well as a holiday of one week per year, will ensure opportunities for the relationship that exists to be continued, but at the same time to recognise that it is not the primary familial bond that must be fostered and developed, particularly in a continuing close and loving family. The orders of the court will be as outlined on the Orders page at the commencement of these reasons.

I certify that the preceding two hundred and seventy-two (272) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate:

Date: 11 April 2013