How should the test of the best interests of the child be seen in the context of active support for the child’s cultural heritage and upbringing? What happens if there is any conflict? How much should best interests outcomes be diminished or diluted to encourage cultural connections?
These are big issues facing many countries with significant cultural, religious or ethnic groups. Many countries seek to be sensitive, pluralistic and supportive of cultural elements but what happens when there may be a clash with what might otherwise be seen as the best interests of the child? Countries around the world need to share and learn from each other
A recent appeal decision of the Full Court of Australia dealt with this issue. At one level a simple matter of appropriate contact in respect of a five-year-old daughter with her father. But the context is the opportunity for the girl to take part in a major cultural ceremony; important for the child’s paternal heritage, understanding and upbringing.
Lokare v Baum (2016) FamCAFC 135 is reported internationally on Austlii (http://www.austlii.edu.au). The child is 5½. The father is an indigenous Australian living in the Northern Territory, which comprises a huge area of outback from Darwin in the North to Alice Springs in the middle of Australia. Many indigenous Australians live in NT. The mother is not aboriginal and lives in Sydney. They separated when their daughter was eight months old and the mother has been the primary carer. Since separation the child has not been overnight alone with the father and no time with him since November 2014.
The father wanted contact with the child to include taking him to a “smoking ceremony”. This was acknowledged as a very important event in the life and upbringing of the child and would establish close contact with the wider family and his heritage. If not exactly a rite of passage, it had similarities. This was already a mother who supported the child’s mixed heritage. She had purchased books and CDs for the child about the people, elders and traditions of the father.
The problem arose as the best interests of this child was to spend initially only a limited amount of time alone with the father, gradually increasing and introducing overnight contact. This would be conventional in many jurisdictions where a young child had had limited involvement with the other parent and contact is gradually re-introduced and increased.
However the smoking ceremony was due to take place about 800 km from Darwin. Although the mother and child could fly to Darwin and the father could pay for that trip, the journey to the ceremony would be by car and take two days. Moreover the father was unable to pay for accommodation for the mother. It would be an 11 day ceremony. The mother said she would be willing to attend the ceremony with the child if her accommodation was paid for. Once at the ceremony and with the mother around albeit in the background, the child could take a full part. Although the father had initially supported the attendance of the mother at the ceremony, this was subsequently changed by others and the mother was told she was not welcome. The father asserted nevertheless that even with the mother not present and the period of no previous contact with the father, it was crucially important for this child to attend the ceremony and understand her indigenous background, so the court should allow this contact for this reason.
The court emphasised the logistical difficulties, irrespective of the cultural aspects. No one was able to pay for the accommodation of the mother even if she could attend. There was the very long car journey for this child. But these are ever present and familiar to many families e.g. contact handover during Friday evening busy rush-hour traffic or around the M25 or the cost of travel by public transport for separated parents around the country for modest income families.
It was the argument of the father that notwithstanding what might otherwise be the best interests of the child vis-a-vis contact with the father, it was nevertheless vital that the child attended this event. He said in effect the child’s cultural, indigenous background took priority.
Like many countries, Australia operates the best interest test. But perhaps predictably in view of the history, there are several crucial safeguards in the legislation for indigenous, aboriginal children. The court has a duty to have regard to any kinship obligations and child rearing practices of a child’s aboriginal culture (s61F Family Law Act 1975). These include the right of the child to enjoy his aboriginal culture including to enjoy that culture with others who share that culture, the likely impact of any proposed parenting order on that right and a right to maintain a connection with that culture, to have necessary support, opportunity and encouragement and to explore the full extent of that culture consistent with the child’s age and developmental level and views and to develop a positive appreciation of that culture (s60CC(3) and s60B(2)(e) and s60B(3)). In other words Australia goes much further than many other countries in explicitly giving rights to children in respect of the indigenous cultural upbringing. Without necessarily creating any presumptions, these are very strongly worded rights. Many other countries would expect similar in their approach to the cultural heritage of a child without having explicit primary legislation.
The best interests in the cultural context
But how do these rights in the cultural context, here the specific involvement with the aboriginal heritage ceremony, meet what would otherwise be the best interests of the child?
In a careful judgement, fully endorsing and supporting the importance of the heritage of the child on his father’s side, the appeal court held that if it was possible, including properly funded, for the mother and child to travel to Darwin and then to the smoking ceremony and for the mother to attend to be with the child then that would be allowed as in the overall best interests of the child. But if the mother was not allowed to attend this 11 day ceremony and there was no financial funding for accommodation for the mother and with a two day 800 km car journey, this would not be in the best interests of the child. It was not possible to counter, overcome or ignore these best interest elements by the importance for the child of this particular cultural event. The court was not under any circumstances casting any doubt about the significance of the event or what the father had said about the event for the child. But to attend in this location without the mother for this period was not in the best interests of the child irrespective of the cultural event itself.
Contact was therefore refused. The cultural significance did not trump what was otherwise the best interests of this child.
Some countries give far less weight or prominence to cultural events than does Australia in respect of the aboriginal community. Nevertheless the normal parenting best interests of the child cannot be displaced only because of culture.
This sort of issue will arise many times more, in different cultural guises in different countries and different communities. As our world becomes a surprising mix of nationalism and yet cross-border culturalism, family lawyers will often deal with this issue for national and international families.
David Hodson is grateful to Nicholes, one of Australia’s leading family law firms, based in Melbourne, for bringing this case to his attention
David Hodson OBE is an English solicitor, mediator, arbitrator, an Australian qualified solicitor and barrister and a part time deputy family court judge in London (DDJ at the CFC). He is a co-founding partner of The International Family Law Group LLP, a specialist practice in Covent Garden, London, (www.iflg.uk.com) serving the interests of international families and their children. He is editor and a primary author of The International Family Law Practice (Jordans), England’s leading textbook on international family law. He is visiting Professor at the University of Law. This article also appears in the Jordans Family Law newsletter.