A recent decision of Hronn & Torleif (No 2) [2025] in the Federal Circuit and Family Court of Australia highlights the central role of Indigenous culture and identity in parenting proceedings and how it can shape the outcome of a matter.
The Facts
The case concerned an Aboriginal child who was aged 10 at the time of the final hearing. The child had spent most of his life living on Country in a remote Northern Territory Aboriginal community. The child was not raised by his biological mother and father. He was raised by his grandmother until around 2022 when the Applicant became his full-time carer. The Applicant and the child relocated to Western Australia in 2022 and were not living in an Aboriginal community.
The Applicant in the proceedings was a non-Aboriginal woman who was not biologically related to the child but had been caring for him at different stages since 2018 and during the proceedings. The Respondent was an Aboriginal woman and the child’s mother’s cousin.
The Applicant sought final orders for sole decision-making responsibility for the child and an order that the child live with her. The Respondent sought final orders for sole decision-making responsibility for the child and an order that the child live with her. Neither party had the financial ability to facilitate a shared care arrangement.
There was an Independent Children’s Lawyer appointed in this case. The ICL sought orders that the child remain living with the Applicant. The Applicant also made allegations that the child had been abused by a person close to the Respondent.
The Issue
The key question for the Court was whether it was in the child’s best interests to remain with the Applicant in a non-Aboriginal community or to be returned to the Respondent to live in an Aboriginal community.
The Role of Culture
Under the Family Law Act 1975 (Cth), the Court must apply the ‘best interests test’ to determine what parenting orders should be made for the child.
If the child is Aboriginal or Torres Strait Islander, then the Court must additionally consider the:
- child’s right to enjoy their culture;
- child’s right to connect with and maintain their connection with family, community and Country;
- child’s right to explore the full extent of their culture;
- child’s right to develop a positive appreciation of their culture;
- likely impact of the final parenting orders on those rights; and
- kinship obligations and child-rearing practices of any people who may exercise parental responsibility.
In this case, the Court acknowledged that caregiving in the child’s community was guided by Aboriginal kinship structures (which value extended family and community members in parenting roles, not just biological parents) and was a persuasive factor in their decision.
Outcome
The Court found that the child’s relocation to a non-Aboriginal community had limited their ability to maintain cultural connections. The Court was not persuaded that the risks associated with returning the child to the Aboriginal Community were outweighed by the benefits.
The Court made final orders for the child to live with the Respondent and be returned to their community and culture in remote Northern Territory.
Key Insight
Whilst safety remains a key concern for the Court in parenting matters, this decision placed significant weight on a child’s Aboriginal identity and connection to community when considering what parenting orders were in the children’s best interests.
