Canfield & Taimana (No 2) [2025] FedCFamC1F 478 (16 May 2025)

1. The First Respondent MS TAIMANA ("the First Respondent") have sole parental responsibility for X and sole decision-making responsibility for major long-term decisions, including being able to change X's surname from Taimana-Canfield to Taimana without the consent of the Applicant.
2. The First Respondent will notify MS CANFIELD ("the Applicant") of any significant medical issue that arises in relation to X that involves a referral to any specialist medical practitioner.
3. X shall live with and spend time with the First Respondent, and/or the Second Respondent MR TAIMANA ("the Second Respondent") and/or the Third Respondent MS IOANE ("the Third Respondent") as agreed between the Respondents.
4. The First Respondent shall cause photographs of X's milestones and significant events to be sent to the Applicant each year (no later than 20 December) with the Applicant to provide her updated address, telephone number and email address to the First Respondent if this should change.
5. The Applicant is permitted to send to X a birthday and Christmas gift and/or card each year.

1. That X shall spend time with the Applicant as agreed between the Applicant and the First, Second and Third Respondents in writing.
2. Such time shall occur at a such place, time and circumstances as agreed between the Applicant and the First, Second and Third Respondents in writing.
3. The Applicant is restrained from contacting the First, Second or Third Respondent, or any of them, more than once per calendar month to request to spend time with X.

1. Pursuant to section 65Y of the Family Law Act 1975 (Cth), X is permitted to travel internationally with the Respondents or any one of them.
2. The First Respondent is permitted to apply for an Australian passport for X and for the purpose of this order:

(a) The First Respondent has sole parental responsibility as to the issue of passports under section 11(a) of the Australian Passports Act 2005 (Cth);

(b) X is permitted to have an Australian Passport for the purpose of section 11(b)(i) of the Australian Passports Act 2005 (Cth); and

(c) X is permitted to travel internationally for the purpose of section 11(b)(ii) of the Australian Passports Act 2005 (Cth).

1. Each party is restrained from denigrating any other party or members of any other party's family or household in the presence of X.
2. The Applicant is restrained from consuming alcohol while X is in her care or 12 hours prior to X spending time with her (on a without admissions basis).
3. No Order as to costs as between the Applicant and Respondents.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Canfield & Taimana has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are parenting proceedings between the applicant Ms Canfield ("Ms Canfield") and the first respondent Ms Taimana ("Ms Taimana"), the second respondent, Mr Taimana ("Mr Taimana") and the third respondent, Ms Ioane ("Ms Ioane"), in relation to X ("the child" or "X"), born 2020. She is five years old.
2. The biological parents of the child are the second and third respondents, Mr Taimana and his partner Ms Ioane. Mr Taimana is the brother to Ms Taimana, the first respondent in these proceedings. Ms Taimana, and her former partner, Ms Canfield, had the great benefit of entering into a cultural arrangement, where Mr Taimana and Ms Ioane "gifted" X to Ms Taimana and her then fiancé, Ms Canfield, after several years of Ms Taimana's failed IVF attempts, in a cultural arrangement referred to as "Country F customary adoption."
3. The arrangement known as [Country F customary adoption] is not a traditional adoption as we know it but is a longstanding cultural Country F arrangement as between blood and family members. I am not going to attempt to summarise what Country F customary adoption means, but I have been assisted by the articles provided to me (exhibits 2 and 3), about the plural practice of adoptions in Region Q.
4. I was also greatly assisted by hearing from the parties in their evidence as to the practice of Country F customary adoption. Mr Taimana gave compelling evidence, in what was an epiphany in understanding precisely what was intended by the arrangement. I note that the arrangement has a level of complexity and an enormous level of generosity within the Country F culture.
5. The circumstances of the arrangement were the subject of several days of evidence and cross examination. But what is apparent to me is that the parenting plans signed on the day that the parties attended, apparently, O Hospital, attempted, unsuccessfully, to document the cultural Country F customary adoption practice.
6. It was observed by the family report writer, Dr K("Dr K"), in the first family report at [39] that:

It is noted that articulating a clear proposal was extremely difficult for [Ms Taimana], [Mr Taimana] and [Ms Ioane] as their views are deeply steeped in their [Country F] cultural beliefs around inclusive extended-family shared-parenting. They each presented an authentic struggle when attempting to apply the Australian legal requirements, and in particular identifying primary carers and awarding parenting responsibility. Their cultural belief is to share the care and parental responsibility amongst multiple family members. Identifying one or two specific people to be awarded this, is in direct contrast to their strongly held beliefs.

1. That is an important observation made by Dr K.
2. Dr K completed two comprehensive family reports which have been very helpful in setting out the complexities in this matter. Although she was not cross examined and the parties have now reached an agreement, I have carefully read on a number of occasions and considered her opinion and its basis, what she observed and her recommendations are very important, because what has been agreed now largely aligns with Dr K recommendations.
3. Dr K recommended a significant change by way of reduction of time spent between Ms Canfield and X, due primarily to the long-standing cultural divide between the parties, due to the overt and at times subtle conflict between the parties, the mistrust, and the negative impact on X in her future if she were exposed to that on a long-term basis.
4. It was observed by Dr K at [213] that:

The question is whether [X] should have ongoing time with [Ms Canfield], and of significant consideration is the impact on [X] of losing this important relationship, versus the risk to her long-term development of expecting [X] to negotiate the complexities that may emerge as one cultural system clashes with another.

1. I think that also effectively summarises the crux of the issue in terms of the safety to X.
2. I also note that Dr K, in her first report at [240] said:

It is with a deep sadness and great empathy for [Ms Canfield] that the following recommendations are made. The report writer would like to acknowledge the pain and suffering that they will cause [Ms Canfield], and emphasise that these recommendations do not seem fair, and are not a produce of an impaired capacity to love and care appropriately for [X].

1. That observation is also important in the context of the orders that have now been reached.
2. Having made those observations I have considered the relevant sections of the Family Law Act 1975 (Cth) and ultimately what is in X's best interests, and through the orders that have been agreed and consented to by all of the parties, it gives hope for the future. I congratulate the parties on taking on board the recommendations and reaching an agreement after what has been a very difficult few years. I have absolutely no hesitation in finding that the orders that are proposed are in X's best interest. I thank counsel for their assistance, I thank the Independent Children's Lawyer, this has been a case where this room is full of love for X and that is apparent from everything that was said by all of the witnesses.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran.