It is well understood that connection to land and culture is a vital part of identity for Australia’s First Nations peoples. A recent decision by the Federal Circuit and Family Court of Australia (“FCFCOA”) in the case of Pascoe & Larsen [2022] FedCFamC1A 64, recognises the importance of First Nations connection to land when considering how to act in the best interests of the child.

In this case, the FCFCOA heard a father’s appeal from an interim decision dismissing an application for the mother and child to return to City A after relocating to City B. This decision concerned the amount of time the child would spend with each parent until the final hearing and the location of where the child would live. The issue before the judge was whether the interim parenting orders should be made on the basis of the mother continuing to reside in City B or if orders should be made for the mother and child to reside in City A.

Both the mother and child are First Nations people. Section 60CC(3)(h) of the Family Law Act 1975 (Cth) outlines that a child’s Aboriginal or Torres Strait Islander heritage ”must” be considered when determining the best interests of the child. The primary judge acknowledged that it is the child’s right to enjoy her Aboriginal culture “with other people who share that culture”.

The court took into consideration evidence from the mother of child rearing practices and mother daughter connection in Aboriginal Australian culture.

The FCFCOA found that it was in the best interests of the child to live primarily with the mother rather than the father. It was also held that moving back to City A would detrimentally impact upon the mother’s employment and relationships. It was in the best interests in the child to live with the mother and for no orders regarding relocation to be made. The appeal was dismissed.

This case highlights the strength of the Family Law Act in its prioritisation of the best interests of the child, allowing for recognition of First Nations culture and heritage.

If you find yourself in difficulties with family law issues and parenting orders at the present time and require legal advice, contact our experienced law team today.

DISCLAIMER: The information contained in this article is general and is not intended to be advice on any matter. It is for information only and is not legal advice. In the event of a legal problem, you should seek legal advice.