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Children – unilateral relocation allowed – child’s connection with Aboriginal culture…

…best maintained by living with mother

In Pascoe & Larsen [2022] FedCFamC1A 64 (13 May 2022), McClelland DCJ heard a father’s appeal from an interim decision dismissing an application for the return of the mother and child, after the mother unilaterally relocated from ‘City A’ to ‘City B’.

The mother and child were Aboriginal and the trial judge concluded that the connection to the child’s culture was best maintained by the child living with the mother ([15]).

McClelland DCJ said (at [30]-[31]):

“ … [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 …”

McClelland DCJ continued (from [57]):

“… [I]t was entirely proper and, indeed, consistent with his Honour’s obligation … to have regard to the child’s right to enjoy her Aboriginal culture ‘with other people who share that culture.’ It was unnecessary for the primary judge to make findings in respect to the depth and richness of the culture of the D Nation and how that culture is passed from generation to generation. …

(…)

[64] … [W]hat his Honour [found] was that the fact that the child is Aboriginal was a factor that he considered as favouring orders being made for the child to live primarily with the [mother] …

[65] Having made that decision, his Honour then proceeded to determine whether he should make orders requiring the child to be returned … in circumstances where it would detrimentally impact upon the [mother] in terms of her employment and her new relationship. Having regard to those matters … his Honour rejected the [father’s] submission that orders should be made that resulted in that detrimental impact upon the [mother].”

The appeal was dismissed and orders made for submissions as to costs.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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