January 2015 Māori Law Review

Family law – parenting orders – relocation – connection to indigenous community – Chesterfield

Chesterfield & Brent

Federal Circuit Court of Australia [2014] FCCA 787

30 April 2014

Successful application by a father in the Federal Circuit Court of Australia preventing the mother from relocating with their children from Victoria to Western Australia. The Court considered, amongst other factors, that the children’s ties and involvement with their aboriginal community in Victoria were of “real significance”.

Download Chesterfield & Brent here (244KB PDF).

Overview and result

Family law – parenting orders – relocation – importance of involvement in indigenous community when considering the best interests of the child
Date30 April 2014
CaseChesterfield & Brent (244KB PDF)
Citation[2014] FCCA 787
CourtFederal Circuit Court of Australia
Judge(s)Judge McGuire
Earlier/later decisions
Legislation citedFamily Law Act 1975 (Aust), ss 60, 60B, 60CC, 61DA, 65DAA, 65DA.
Cases citedMRR v GR [2010] HCA 4, (2010) 240 CLR 461: and Campness & Hanson [2009] FamCAFC 96.
Overview and resultApplication to the Federal Circuit Court of Australia for parenting orders for two boys, aged 5 and 9. The mother, their primary guardian, wished to move from Victoria to Western Australia with her new partner. The father applied for equal shared parental responsibility and an order that the children remain in Victoria. The Court decided that the children should remain in Victoria; the Court placed particular emphasis on the fact that the children were involved, through their father, with the local Aboriginal community and that this could not be adequately substituted in Western Australia. 

Background

When Ms Brent, the mother of the two boys, unilaterally relocated from Victoria to Western Australia, Mr Chesterfield, the father of two boys (aged 5 and 9), sought a recovery order.  After a location order was made in a Western Australian State court, the mother and the boys returned to Victoria where they remained pending the determination of these proceedings.

The father sought an order for equal shared parental responsibility and an order that the children live with him if the mother decided to relocate to Western Australia.  The mother applied for the relocation of the children to Western Australia to live with her and her partner, Mr J. The mother proposed that the children continue contact with the father by visiting him during the school holidays and by having regular telephone and Skype communication.

The father was of aboriginal heritage, identified with his indigenous culture and had an active involvement within that community. The boys were also significantly involved with that community.

The parties’ arguments

The father put forward evidence that the children had expressed a preference to live in Victoria in support of his application preventing relocation and equal shared parental responsibility. Most importantly, the father argued that the children had an established connection with their aboriginal culture, which they enjoyed through him and his extended family.  Therefore, the movement of the children to Western Australia would mean that their involvement in their aboriginal culture would be limited, infrequent, and suffer accordingly.

The mother argued that she had begun a new family with Mr J and that he had stable and well-remunerated employment in Western Australia, such as was not available in Victoria.  As a result, Mr J was able to confer actual and financial stability and was a positive role model for the boys.  As to the children’s involvement with their aboriginal culture, the mother said that they could be involved with the Victorian aboriginal community on visits during their school holidays.

Discussion

The Court recognised that the Family Law Act 1975 put the children’s best interests as the paramount consideration when making parenting orders. The Court considered mandatory considerations under s 66CC(2) of the Family Law Act, such as the benefits of the children having a meaningful relationship with both parents, the views of the children, the nature of the relationships with their respective parents, and the likely effect of any changes in the children’s circumstances. In addition, Court placed particular emphasis on s 60CC(3)(g) which required the Court to consider the maturity, sex, lifestyle, and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents.

In discussing the importance of the children’s aboriginal culture, the Court placed particular weight on affidavit evidence from Mr R, a man who established the local aboriginal cooperative in Victoria. Mr R’s evidence was that to have a meaningful involvement in the aboriginal community, it “requires an immersion in the culture which can only be achieved through a lived experience of the cultural practices and lifestyle of the community on a day to day basis”. Mr R also stated that “Aboriginal culture is not one culture, but rather numerous different cultures that are practiced in individual communities throughout Australia. Each community has its own distinct cultural practices and traditions.” The Court also received evidence from a Mr P, who provided an affidavit for the mother which suggested, incidentally, that the local Aboriginal community in Western Australia may be close-knit and protective of its locals and perhaps reluctant to assimilate outsiders.

The Court stated that “[o]f real significance is these boys’ connections with their heritage and community” and that while the fact of Aboriginality is not to be determinative, it is “one factor among many to be attributed weight and balanced in the process of arriving at orders which are in the best interests of the children.”  In conclusion, the Court stated (at [80]):

[T]here is, in fact, a positive and beneficial involvement for these children within their Aboriginal community. Their father works in the community. Their extended family have historical involvement. The children have actual involvement throughout their young lives. It would not be an exaggeration to suggest that the focus of their education and cultural learning is through this aboriginal community… I am satisfied that the specific peculiarities of these children’s community cannot be substituted by involvement in another [indigenous] community in Western Australia.

The Court recognised that this consideration carried “real weight”. While the Court acknowledged the factors weighing against relocation, such as the mother’s freedom of movement and continuing role as primary parent, the Court was satisfied that the best interests of the children were served by them continuing to live in Victoria.

Comment

The Federal Circuit Court of Australia decision of Chesterfield & Brent adds to judicial decisions where courts have recognised the importance of a child’s involvement in their indigenous community when making parenting orders.  In New Zealand, the importance of the child’s identity, and its need to be preserved and strengthened, is a key principle under s 5 of the Care of Children Act 2004. New Zealand courts have emphasised, in the making of parenting orders involving Maori children, the importance of the child’s identity, culture, tikanga and whakapapa.

In BP v D-GSW [1997] NZFLR 642, the High Court made comments similar to that made by the Federal Circuit Court of Australia.  The High Court, at 647, recognised the:

… special position of a child within a Maori whanau, importing as it does not only cultural concepts but also concepts which are spiritual and which relate to the ancestral relationships and position of the child, must be kept in the forefront of the mind of those persons charged with the obligation of making decisions as to the future of the child.

The Court, at 653, went on to say:

… the place of a child within a whanau and the obligations and responsibilities of members of the whanau to that child, together with the advantages which that brings of the child being nurtured within a group which not only focuses the ancestral and genealogical position of the child through whakapapa and the spiritual significance of the child’s ancestry, but also emphasises the place within the land.

In the New Zealand context, the approach taken in Chesterfield & Brent may have particular importance when a guardian wants to relocate children to another area with the effect of disrupting their involvement as members of a particular hapū or iwi.  In Chesterfield & Brent, the Court placed particular emphasis on the fact that the children had “actual involvement throughout their young lives” in the Aboriginal community along with evidence that illustrated that involvement in their current community could not be substituted, as the proposed indigenous community in Western Australia was not likely to be particularly receptive of children.  In addition, the Court was satisfied that the mother’s proposal meant that the children would become “visitors” rather than “participants” in the Victorian aboriginal community.

As a result, New Zealand parties in a contested relocation case may want to lead evidence demonstrating how strong the children’s connections are with their hapū and iwi and how those connections will be able to be maintained.

The party seeking to relocate away from the rohe may want to lead evidence showing how the children might participate in any taura here (urban kinship group) community at the destination or otherwise still participate in their kin-group. This might be easier to demonstrate where the proposed relocation is a large urban environment. In contrast, the party opposing relocation might wish to lead evidence that places emphasis on the child’s whakapapa and ties to land (urupā and whenua), and also about potential difficulties in having children participate via taura here communities.

As the case of Chesterfield v Brent illustrates, there is a need to ensure that blanket assumptions are not relied upon in relocation cases involving children and their indigenous culture. In contested relocation, the Court will be interested in not only the strength of the children’s connections with the indigenous community, but also the mechanisms by which those ties can be maintained and strengthened at the proposed destination.

Author: Andrew Row

Andrew graduated from the University of Otago in 2013 with an LLB (Hons) (First Class). Andrew graduated as one of the top two students from Otago Law School and was consequently awarded the Otago District Law Society Prize. Additionally, Andrew received academic prizes in papers such as Property Law, Tort Law, Family Law, Wills and Trusts and Criminal Justice. In 2016, Andrew will be moving to Texas to undertake an internship with a prominent death row lawyer and hopes to commence study towards an LLM in the United States later that year.