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Non-Indigenous Mother Allowed To Attend Traditional Smoking Ceremony

Section 61F of the Family Law Act 1975 states that, In:

  • applying this Part to the circumstances of an Aboriginal or Torres Strait Islander child; or>
  • identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;

The court must have regard to any kinship obligations, and child-rearing practices, of the child’s Aboriginal or Torres Strait Island culture.

In the recent Full Court decision of Lokare & Baum [2016] FamCAFC 135, the Court dismissed a father’s appeal against interim orders that permitted a non-indigenous mother to attend a traditional smoking ceremony with their five year old daugher. The father was an indigenous man who lived in the Northern Territory. The mother was not Aboriginal and lived in Sydney. The parties’ daughter had been in the primary care of the mother since the parties separated when she was only 8 months old.

At first instance, the Trial Judge accepted that the father had a cultural obligation to his daughter to ensure that she was supported in developing her connection to her indigenous culture and family. The Trial Judge also accepted the father’s evidence that it was difficult for his daughter to maintain her contact and connection whilst she lived in Sydney. The father’s sister gave evidence as to the importance of the smoking ceremony to the child and how it would take place in the Northern Territory. The Trial Judge observed that the father’s sister had discussed the mother’s request to be present at the smoking ceremony and it had been agreed that the mother would be welcome at attend. The mother was supportive of her daughter attending the ceremony. The father’s sister subsequently withdrew her permission for the mother to attend, following a telephone call from the father. The Trial Judge subsequently ordered that “The mother shall be permitted to be present during the ‘smoking ceremony'”.

On appeal, the father submitted that the Order directed the father and/or his family to allow the mother to be present at the smoking ceremony and that the Court had no power to direct the father and his family in that way. Further, the father submitted that the Court’s Order required the mother not only to attend the ceremony but also to participate. The father argued that the effect of the Court’s Order was that his daughter was stopped from undergoing the ceremony because it was a condition that the mother attend and, of those conducting the ceremony did not wish her to be there, there could be no ceremony. The Full Court rejected the father’s submissions In discussing the merits of the father’s arguments, it was necessary to have regard to the Trial Judge’s contextual findings in that regard.

Although it was first idicated that the mother would be welcome to attend the ceremony as noted by the Trial Judge, that invitation was later withdrawn. That being the case, the father proposed that the child would travel to Darwin by plance, then by car some 800 kilometres from Darwin to the site of the ceremony. The father estimated that it would take two days to make that journey. The Trial Judge concluded that there was no evidence to demonstrate how it could be practically possible for the child to be taken to the ceremonial site with or without the mother for a period of about eleven days, which was what it was said was needed for travel, and to prepare for and conduct the ceremony.

The Full Court concluded that whether the child attended the cerremony was a gift of those conducting it. If the mother was welcome and arrangements were made which provided for her and the parties’ daughter to travel both to Darwin and then further to the site where the ceremony was to take place, the child was permitted to undergo the ceremony. The Trial Judge’s order that the child’s attendance at the smoking ceremony was dependent upon the condition that her mother be present given the child’s age and circumstances was not only open to the Trial Judge on the evidence, it was compelled by it.

Image Credit – Deboracilli ©

Written by Michelle McDermott on April 20, 2017

Michelle prefers a pragmatic approach to resolving matters and pays particular attention to ensuring that her clients not only feel supported in the process but also that they understand, and are involved in, the decision making throughout. If, however, Court proceedings are required, Michelle has the skills and strategies to litigate cases efficiently. View Michelle’s profile

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