Ailan Kastom child rearing practice in Torres Strait Islander families

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How do I get Ailan Kastom recognised under the law?

What is Ailan Kastom child rearing practice?

Torres Strait Islander families have traditional adoption and child raising practices called Ailan Kastom child rearing practice. Under Ailan Kastom child rearing practice, a child’s biological (birth) parents may agree for another couple (the cultural parents) within their extended family to permanently raise their biological child as the cultural parents’ own.

 Ailan Kastom child rearing practice is a cultural practice followed by generations of Torres Strait Islander families who’ve raised children in supportive and loving extended families. It is a deeply personal and private practice and there are strict cultural protocols around when and how the child will be informed about their traditional adoption and birth parents.

Is Ailan Kastom child rearing practice recognised under the law?

Yes. A new law called Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 (Qld) allows Ailan Kastom child rearing practice to be legally recognised and establishes a process to do so. The date when applications can be made will be announced in the near future. 

Under the law, a child or adult who has been raised under Ailan Kastom child rearing practice can now get their legal identity (eg their birth certificate, Medicare and Centrelink records) to match their cultural identity. The person’s parentage is transferred from the birth parents to the cultural parents. They become a child of the cultural parents and the cultural parents become the parents of the person—the person stops being a child of the birth parents and a birth parent stops being a parent of the person. 

You must apply for a cultural recognition order for a child or adult to get their Ailan Kastom child rearing practice legally recognised.

What is a cultural recognition order?

A cultural recognition order is an order made by the commissioner that transfers a child’s parentage from the birth parents to the cultural parents. The cultural parents become the legal parents of the child and the birth parents stop being the legal parents of the child. When the order is made, inheritance and traditional land ownership rights are transferred to the cultural (legal) parents.

The birth parents and the cultural parents must all consent (agree) to applying for a cultural recognition order. Consent can only be waived in rare circumstances. For more information, see page 4.

Once a cultural recognition order is made, it will be registered with the Queensland Registry of Births, Deaths and Marriages. Under the law, a cultural recognition order will have the same legal effect as an adoption under Queensland’s adoption laws (eg the Adoption Act 2009 and Adoption Regulations 2009).

Legal Aid Queensland, the Queensland Indigenous Family Violence Legal Service (QIFVLS) and the Aboriginal and Torres Strait Islander Legal Service (ATSILS) in Queensland can help you with the application process for a cultural recognition order.

How do I apply for a cultural recognition order for a child? 

For children under 18, the child’s birth and cultural parents must each apply for a cultural recognition order. To be eligible for an order, at least one birth parent and at least one cultural parent must be a Torres Strait Islander, and the child’s birth must be registered in Queensland. The parent/s must be an adult and the application can only be made 30 days or more after the child’s birth is registered.

1. Get an application form from the Queensland Government. Visit www.qld.gov.au 

2. Complete the application form and include:

• child’s certified birth certificate
•  any required court orders (if applicable)
• statement from birth parents
• statement from cultural parents
• statements from informed persons
• statement of other carer (if applicable)
• any other relevant documents.

3. Submit the application form to the commissioner

4. The commissioner will read your application and consider: 

• if an order is in the child’s best interests
• the Ailan Kastom child rearing practice that has happened
• legal and cultural benefits for the child and the cultural parents
• recognition of the birth parents’ assessment of the cultural parents’ suitability
• each birth parent, cultural parent and any other carer has given their full, free and informed consent to the application
• any other information or issues relating to the child’s wellbeing and best interests.

5. Once an order is made:

•  parentage is transferred from the birth parents to the cultural parents
• the cultural parents become the child’s legal parents and the birth parent stops being the child’s legal parent
• the child’s birth certificate will be reissued to list the cultural parents as the child’s legal parents.

Birth and cultural parents’ statements must include:

• details of the Ailan Kastom child rearing practice
• confirmation the parental rights and obligations for the child were transferred to the cultural parents in line with Ailan Kastom child rearing practice
• why an order will be in the child’s best interests
• whether the child is aware of their Ailan Kastom child rearing
• confirmation the child, the birth parents and the cultural parents have no health, wellbeing, or other issues and challenges that might make the Ailan Kastom child rearing practice detrimental to the child’s wellbeing and best interests
• name and address of informed person
•  consent (permission) to the commissioner to make inquiries and exchange information with other agencies, including access to criminal histories
• consent to the application being made
•  any other relevant information.

Informed person’s statement must include:

• the person’s understanding of the Ailan Kastom child rearing practice that happened
• whether the child rearing practice was in line with the Ailan Kastom child rearing practice
• their relationship with the birth parents, cultural parents and child.

Definitions

Birth parent—a person who is recognised at law as being the child’s parent at the time the child is born.

Cultural parent—a person who, in line 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 birth parents to them.

Informed person—means a person who has knowledge and understanding of the specific Ailan Kastom child rearing practice that has occurred, and can verify (confirm) that it happened in line with Ailan Kastom. 

How to apply for a cultural recognition order for an adult

An application for an adult (18 and over) can only be made by that adult person.

1. Get an application form from the Queensland Government. Visit www.qld.gov.au 

2. Complete the application form and include:

• your birth certificate
• statement from you
• statement from birth parents
• statement from cultural parents
• statements from informed persons
• any other relevant documents.

3. Submit the application form to the commissioner

The commissioner will read your application and consider:

• if an order is in your best interests
• the Ailan Kastom child rearing practice that has happened
• legal and cultural benefits for you if the order is made recognising the Ailan Kastom.

5. Once an order is made:

• parentage is transferred from the birth parents to the cultural parents
• the cultural parents become the person’s legal parents and a birth parent stops being the legal parent
• the person’s birth certificate will be reissued to list the cultural parents as the person’s legal parents.

Statement of adult must include:

• how you were told about being raised in line with Ailan Kastom child rearing practice
• what you were told about your Ailan Kastom child rearing practice
• the nature of your relationship with your birth parents (for example, my birth parents have aunty and uncle roles in my life, I call my cultural parents mum and dad)
• consent to the commissioner to contact your birth parents, cultural parents and informed persons to make inquiries and talk with them about your application
• informed consent to the application (informed consent means you give your permission and you understand the risks and benefits of getting legal
• recognition of your Ailan Kastom child rearing practice).

See page 2 for information about the statements from birth and cultural parents and informed people.

Definitions

Birth parent—a person who is recognised at law as being the child’s parent at the time the child is born.

Cultural parent—a person who, in line 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 birth parents to them.

Informed person—means a person who has knowledge and understanding of the specific Ailan Kastom child rearing practice that has occurred, and can verify (confirm) that it happened in line with Ailan Kastom.

What happens if someone doesn’t give their consent to the application? 

There must be at least one birth or cultural parent listed as an applicant for a cultural recognition order.

If a birth parent or cultural parent does not give their consent to the cultural recognition order application, the commissioner can waive the need to consent in some situations.

What if the commissioner decides not to make a cultural recognition order? 

If the commissioner decides not to make a cultural recognition order, you can ask for their decision to be reviewed. Your request needs to be made within 20 business days after you get the commissioner’s statement of reasons. If this happens, the minister will appoint a review officer who will review your application and will then confirm or revoke (change) the commissioner’s decision.

Do I need a cultural recognition order for myself or a child in my care?

A cultural recognition order is not essential but if there is no cultural recognition order, the Ailan Kastom child rearing practice will not have legal recognition. This means the cultural parents will have no legal status as parents.

If a cultural parent doesn’t want to get a cultural recognition order for a child in their care, they can consider applying for parenting orders in the Family Court of Australia. These orders only last until the child turns 18.

Cultural parents still have rights and responsibilities for the child. A person who cares for a child is responsible for their day-to-day care and welfare. 

With a cultural recognition order, cultural parents can perform tasks and duties that birth parents would normally do, like:

• have the child listed as a dependent on a Medicare card
• take the child to health and medical appointments
• receive Centrelink payments for child’s care
• enrol the child at child care/school and be listed as a contact person.

However, if there is no cultural recognition order for the child, the cultural parents may face these challenges:

• misunderstandings and disagreements about the child’s care arrangements
•  problems with identification and legal issues such as:

• getting a passport
• getting a driver licence
• school enrolment and access to education, health, banking and housing services
• access to inheritance rights.

If you need help with a cultural recognition order, talk to ATSILS, QIFVILS or Legal Aid Queensland to get legal advice for your situation.

How does criminal history screening work in relation to an application for a cultural recognition order?

The commissioner can decide whether they want to get a criminal history report about a cultural parent from Queensland Police Services. They can only do this if the application for a cultural recognition order relates to a child.

When applying for a cultural recognition order, cultural parents must consent to the commissioner getting a criminal history report about them.

Applicants for a cultural recognition order must confirm they are not aware of any details that may be detrimental to the child’s best interests and wellbeing. If a party to the application believes a cultural parent has a criminal history that may impact on the child’s best interests and wellbeing,details about this should be included in an application for a cultural recognition order.

Not giving these details could lead to offences being committed and any cultural recognition order made being cancelled.

If there is any doubt, you should make the commissioner aware of those doubts. Having a criminal history will not automatically prevent a cultural recognition order being made.

If the commissioner receives a criminal history report, they will contact the respective cultural parent and give them a copy of the report and a notice for them to give any extra information about their criminal history that may help the commissioner decide whether or not to make a cultural recognition order.

The commissioner will only share the report if they include it as part of their notice of intention to make or not make a cultural recognition order or a statement of reasons for the decision.

For more information

• Visit legalaid.qld.gov.au or phone 1300 650 143 (Aboriginal and Torres Strait Islander Information Line).
• Visit atsils.org.au or phone 1800 012 255 (Toll free 24hrs 7 days).
• Visit qifvls.com.au or phone 1800 88 77 00.

Last updated 21 March 2023