GMH v OTW[2024] QCHC 19

CHILDRENS COURT OF QUEENSLAND

Introduction

1. [1]
   This an application pursuant to the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 (Qld) ("MOKKA").
2. [2]
   The applicant seeks the following orders: -

"(1) An order dispensing with the requirement to serve on the third respondent  pursuant to MOKKA s. 49 (4)(b); and

2. An order dispensing with the requirement for the consent of the biological father (third respondent) to the application for a cultural recognition order pursuant to MOKKA s. 52 (1)(a)".

3. [3]
   The background to this matter is that a joint application has been made by GMH, OTW (cultural parents) and FRR (birth mother) to the Office of the Commissioner of the Meriba Omasker Kaziw Kazipa seeking a cultural recognition order be made in relation to the child; LGP, born [redacted], currently aged 12 years. 
4. [4]
   The outcome of this cultural recognition order application, if successful, will be the issue of a new birth certificate for LGP that lists GMH and OTW as her parents.  That birth certificate will then effectively replace the current birth certificate^[1] and will ensure that LGP's legal identity reflects her lived cultural identity and all that she knows. 
5. [5]
   The background to this matter is that applications for cultural recognition orders are made to the Office of the Commissioner on a consent-based approach.  All applications for a cultural recognition order require the informed consent of both of the birth parents, both of the cultural parents, and confirmation that a cultural adoption has occurred under Ailan Kastom.  This confirmation is provided by a chosen "informed person" or "informed persons" for all parties and is often confirmed (it is submitted) by a community member, elder or family member.^[2] In respect of this particular application, the "informed person" is LB.^[3] 
6. [6]
   GMH, OTW (cultural parents) and FRR (birth mother) have all provided their informed consent to the application that has been filed with the Office of the Commissioner waiting for a decision to be made, but of course pending the application to this court. 
7. [7]
   The MOKKA requires the informed consent of both birth parents of the child, and where consent is not able to be obtained, requires an application to be made to the Childrens Court of Queensland for determination pursuant to the legislation. 
8. [8]
   Power to grant this application proceeds pursuant to part 5, division 3 of MOKKA.  This division applies if the applicants for a cultural recognition order are not able to obtain the consent of a required party, which, in respect of this application, is the birth father.^[4]  LGP's current birth certificate^[5] identifies FRR as the birth mother but has no entry in respect of the birth father.
9. [9]
   MOKKA s. 4 provides (with respect to the main purpose of the Act) that it is to -

"(a)  recognise Ailan Kastom child rearing practice; and

(b) establish a process for making applications for, and decisions about, the legal recognition of the practice."

10. [10]
    It is submitted on behalf of the applicant that the cultural parents and the birth mother in this matter understand that the main purpose of this Act is to formally recognise this Ailan Kastom as an important and unique ancient practice, which of course has continued in respect of this particular matter.^[6]
11. [11]
    MOKKA s. 81 provides that: -

"When exercising its jurisdiction under this Act, a court must be constituted by a Childrens Court judge". 

12. [12]
    These proceedings are, of course, proceeding in the Childrens Court of Queensland.
13. [13]
    MOKKA s. 8 defines the meaning of "Ailan Kastom child rearing practice" as "…the practice recognised by Ailan Kastom under which a child's birth parents and the child's cultural parents agree in accordance with Ailan Kastom that the parental rights and responsibility for the child are permanently transferred from the birth parents to the cultural parents."
14. [14]
    MOKKA s. 9 defines "birth parent" as "…of a child, means a person who is recognised at law as being a parent of the child at the time the child was born." And the meaning of "cultural parent"^[7] as, "…a person who, in accordance with Ailan Kastom child-rearing practice, agrees to accept the permanent transfer of the parental rights and responsibility for a child from the child's birthparents to the person."
15. [15]
    The main principle in administering this legislation is "…that any decision made under this Act in relation to a person who is the subject of an application for a cultural recognition order must be for the wellbeing and best interests of the person." 
16. [16]
    It is the applicant's submission that it is in the subject child's best interests for a cultural recognition order to be made in this matter.^[8]
17. [17]
    Relevantly, pursuant to MOKKA s. 52, the court can make a dispensation order if satisfied of the following relevant matters:

“The court may make an order (a dispensation order) dispensing with the need for the consent of the stated party as part of the application for a cultural recognition order if –

(a)The court is satisfied of a matter stated in section 49(4)(a) to (d); or

…

…

(d) The court is satisfied there are other special circumstances for giving a dispensation.”

18. [18]
    The applicant submits that (as identified above) this application falls to be dealt with pursuant to MOKKA s. 52(1)(a) & (d).  In that respect, it is identified that the affidavit of the applicant, as well as the affidavits of the birth mother and the informed person identify the inability to locate the biological father and the special circumstances which make it neither culturally safe nor appropriate to make any further reasonable inquiries in respect of the identity of and the location of the biological father.^[9] The question of what constitutes "reasonable inquiries" is a question of fact for this court to decide.^[10]
19. [19]
    MOKKA s. 49(4) provides:

"(4) The court may dispense with the requirement to serve a copy of the application on the stated party if the court is satisfied of any of the following matters:

1. The applicant cannot establish the identity of the party after making all reasonable inquiries;
2. The applicant cannot locate the party after making all reasonable inquiries;
3. The conception of the person the subject of the application for a cultural recognition order was a result of an offence committed by the party;
4. There would be an unacceptable risk of harm to the birth mother of the person the subject of the application for a cultural recognition order if the party were made aware of the person's birth or the application for a cultural recognition order;
5. There are other special circumstances for dispensing with the requirement to serve a copy of the application."

20. [20]
    The submission on behalf of the applicant is that this court can be satisfied that all reasonable inquiries have been made that are culturally appropriate and in line with Ailan Kastom.  In that respect, the applicant submits that it is not culturally appropriate to make any further inquiries in addition to those that have been made by the cultural parents to the birth mother (second respondent).  The birth father is not named on the birth certificate, and the birth mother has, in her affidavit, addressed these issues in the following way:

"(11)  I do not recall who the biological father of LGP is or their first or last name.

12. I was not in a committed relationship with anyone during the time I fell pregnant.

13. This means that I cannot contact anyone to confirm that person is the biological father of LGP or seek consent of LGP's biological father for a cultural recognition order to be made.

14. I have not seen this person since we parted ways prior to LGP's birth over 12 years ago.

15. It would be insensitive and inappropriate of me to find this person, even if I remembered the name, given it is likely they have moved on and have their own family.

17. It is likely the biological father has moved on and had a family of his own.  It would be culturally inappropriate if I did know who it was to advise this person when they have moved on and had a family of their own.  It would be offensive and impolite to do so, given the length of time since the gifting [of the subject child].

18. There is nothing I can do to take this further to assist GMH and OTW [the cultural parents] in making reasonable inquiries about LGP's potential biological father.  If I did know who it was, I would tell them to make this process as easy as possible for everyone involved to ensure LGP's cultural identity is protected."^[11]

21. [21]
    I accept, in the light of that affidavit material from FRR, that this court can be satisfied that all reasonable inquiries have been made that are culturally appropriate, and that it would not be culturally appropriate to make any further inquiries in addition to those that have been made and satisfied to the extent that they have been made by the evidence that I have excerpted from FRR's affidavit.  I note also, of course, that the birth father is not named on the birth certificate, and it is for those reasons that I accept that the applicant has established the relevant criteria identified in MOKKA s. 49(4)(a) (in that the identity of the birth father cannot be established after all reasonable inquiries), which of course means that the applicant has satisfied me that she is unable to locate the party after making all reasonable inquiries (MOKKA s. 49(4)(b)) and in addition to those two criteria, it is clear that there are, in the concurrence of circumstances in respect of this matter, "special circumstances" which would, in any event, satisfy MOKKA s. 49(4)(e).
22. [22]
    There is no material which would raise issues in respect of MOKKA s. 49(4)(c)&(d) but being satisfied of MOKKA s. 49(4)(a),(b)&(e) is, of course, sufficient in respect of this matter. 
23. [23]
    I also note for the record that the paramount consideration when this court exercises its powers pursuant to MOKKA is the best interests of the child.  MOKKA s. 84 relevantly provides, "In exercising its jurisdictional powers in this Act, the court must regard the wellbeing and best interests of a child as paramount."
24. [24]
    As the applicant submits, the subject child is currently 12 years of age, has been in the care of her cultural parents since birth and it is (it is submitted) the child's best interests that the originating application be granted in this court so that the application by the birth mother and the cultural parents can be progressed before the commissioner to ensure that the child's legal identity reflects her lived cultural identity before she finds it out herself.^[12]
25. [25]
    The affidavit evidence provided indicates that the child has not yet been informed about her status of being gifted through cultural adoption, although her cultural parents plan to discuss this with her when, as a family, they feel it is appropriate and in the best interests of the child to do so.^[13]
26. [26]
    The cultural parents have, in the more than 12 years during which they have had care of the subject child, not been approached by or advised of the identity of the child's biological father.^[14]
27. [27]
    I note that there is no affidavit material filed on behalf of the first respondent, but he has provided informed consent for the application to be made to the Office of the Commissioner, and the affidavit of GMH^[15]confirms his participation in the process of making the application pursuant to MOKKA.
28. [28]
    It should be noted that the applicant has, in the circumstances, appropriately complied with the requirements for service and notice of the application.  In particular, the application and supporting material was provided by way of email to the Office of the Commissioner Meriba Omasker Kaziw Kazipa, satisfying the requirements of MOKKA s. 49(1)(c) by way of an email.^[16] I accept that in the circumstances, that email, which on its face attaches the originating application and the relevant affidavits, satisfies the provisions of informal service, pursuant to the Uniform Civil Procedure Rules 1999 (Qld) r. 117(a) & (b). 
29. [29]
    As is clear from my discussion of the relevant principles and the evidence provided in this application, I am satisfied that all reasonable steps have been taken to identify and serve the third respondent, who is identified in the cover sheet as "unknown", and it follows inevitably that if a person is unknown, it is not possible to serve that person, and in the circumstances, there should be an order to dispense with the service of a person who is unknown and, in the circumstances, it would seem to me in accordance with the principles I have been required to apply, unknowable.
30. [30]
    The applicant submits that the material provided to this court has been sufficient to make the decision sought and identifies clearly (and correctly, of course) that this court is not determining whether a cultural adoption has occurred and whether an order should be made in respect of the birth certificate, but, rather, the issue of whether all those who are required to make such an application have been appropriately notified (or, as in this case, of course, have been unable to be identified and, therefore, cannot be notified).
31. [31]
    The applicant identifies from the preamble to the MOKKA paragraph 6, which provides:  

"the recognition of island custom childrearing practice ensures that a child who has been raised in accordance with the practice will benefit by having their legal identity reflect their cultural identity".

32. [32]
    I am clearly satisfied that the third respondent (the unknown birth father) cannot be located and, therefore, cannot be served, by reason that that person cannot be identified, and it would, in my clear view, be detrimental to the child's best interests to delay the opportunity for her legal identity to reflect her cultural identity.  I note at this point, of course, that the child has been raised from birth by the cultural parents and, on the evidence before me, knows no other aspect of her identity other than that her cultural parents are her "parents" and in those circumstances, although, of course, the decision to grant the application for a new birth certificate to issue is a matter for the Commissioner, not me, it is quite clear that the orders that this court make should be orders that facilitate the progress of that application before the Commissioner.
33. [33]
    I make the following orders:

    1. an order dispensing with the requirement to serve on the third respondent under section 49(4)(b) of the Meriba Omasker Kaziw Kazipa Act 2020 (Qld); 
    2. an order dispensing with the requirement for the consent of the biological father (third respondent) to the application for a cultural recognition order, pursuant to section 52(1)(a) of the Meriba Omasker Kaziw Kazipa Act 2020 (Qld).