Family Law

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. Atone level a simple matter of appropriate contact in respect of a 5-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.

Summary facts

Lokare v Baum (2016) FamCAFC 135 is reported internationally on Austlii. The child is 5-and-a-half. 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 8 months old and the mother has been the primary carer. Since separation the child has not been overnight alone with the father and has spent no unsupervised 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 800km 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 the child to attend the ceremony and understand his 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 circumstances to many families, eg 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.