Introduction
In the matter of Lokare v Baum (2016) FamCAFC 135 the Full Court of the Family Court of Australia considered the father’s appeal that argued that the court had failed to properly apply section 61F of the Family Law Act 1975 (the “Act”) which legislates that “the court must have regard to any kinship obligations, and child-rearing practices, of the child’s Aboriginal or Torres Strait Islander culture”.
The Court’s duty under s 61F to have regard to any kinship obligations and child rearing practices of a child’s aboriginal culture includes the right of the child to enjoy his/her aboriginal culture in fellowship with others who share that culture. Furthermore, the Court is to consider the likely impact of any proposed parenting order on that right and a right to maintain a connection with their culture; to have necessary support, opportunity and encouragement; to explore the full extent of that culture consistent with the child’s age, developmental level and views; and to develop a positive appreciation of that culture; as per sections 60CC(3), 60B(2)(e) and 60B(3).
Background
This case centered around the interests of a 5 year girl who identifies as half aboriginal. Her father is indigenous and lives in the Northern Territory, and in contrast, her mother is non-indigenous and lives in Sydney. The parents separated when the child was only 8 months old with the mother being the primary carer since birth. The child was to spend supervised time with the father with no overnight visits.
The Father was seeking increased contact with the child, so as to include taking the child to a traditional ‘smoking ceremony’. This ceremony was to expose the child to the father’s heritage and customs whilst also developing a closer bond with the child’s paternal relatives.
The Court, however, had ordered that it was in the best interests of the child to only spend supervised time with the father, with a view to incrementally increase contact overtime. This would eventually lead to overnight care with the Father. The smoking ceremony was to take place 800km outside of Darwin over 11 days. Whilst the Mother could accompany the child, she had insisted that the father pay for her accommodation, which he could not afford.
In addition, there was also the issue of the mother’s attendance at the ceremony. The Father had initially supported her attendance but other paternal relatives were adamant that she was not welcome. The father presented to the court that even with the Mother not present, missing the ceremony would be an injustice to the crucial understanding of the child’s indigenous heritage and that contact should be awarded on those grounds.
Decision
The court ruled that supporting the heritage of the child was important and in the best interests of the child, provided that the mother’s accommodation could be paid for and she was allowed to attend the smoking ceremony.
Her Honour found that “neither of the parties could fund the costs of accommodation for the child and the mother in Darwin to enable the child to spend time with her father.” The alternative of attending this location without the mother for 11 days was not in the best interests of the child irrespective of the cultural event itself.
The cultural significance did not undermine what was otherwise in the best interests of the child. As a result contact was refused, and the father’s appeal was dismissed with costs.