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 (s 61F of the 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 (s 60CC(3) and s 60B(2)(e) and s 60B(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.
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 judgment, 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.