In the case Pascoe & Larsen [2022], the Federal Circuit and Family Court of Australia (Division 1) Appellate Court (‘Court’) heard an appeal and allowed the interim relocation of a child based on the child’s connection with her Aboriginal culture.
McClelland DCJ said,
“ … [H]is Honour states that it is important for the child to live with her mother ‘in order to maintain and promote her connection with her Aboriginal culture’ … His Honour’s consideration of that issue was entirely consistent with his obligation pursuant to s60CC(3)(h) of the (Family Law) Act.
[His Honour] … also took into consideration the [mother’s] evidence that part of the child rearing practice of the D Nation is that traditions are passed on from mother to daughter …”.
Ultimately, the Court was satisfied the child shares her Aboriginal culture with her mother, and the orders made for the child to live with the mother were consistent with the child’s right to enjoy her Aboriginal culture.
If culture is a relevant factor in family law proceedings, the Court must consider the following matters when determining the best interests of a child pursuant to Section 60CC of the Family Law Act 1975 (Cth):
(3)
…
- 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;
- if the child is an Aboriginal child or a Torres Strait Islander child:
- the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
- the likely impact any proposed parenting order under this Part will have on that right;
(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:
- to maintain a connection with that culture; and
- to have the support, opportunity and encouragement necessary:
- to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
- to develop a positive appreciation of that culture.
If you would like to discuss the above or have any queries about how this information may relate to your own family law matter, please contact the team at Richardson Murray via (07) 5619 5933.
Full Citation: Pascoe & Larsen [2022] FedCFamC1A 64
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