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Legal recognition of Torres Strait Islander traditional child rearing practice

Before you apply for a Cultural Recognition Order

Eligibility

To apply for a Cultural Recognition Order for the legal recognition of Ailan Kastom (Torres Strait Islander) child rearing practice:

  • the person’s birth needs to be registered in Queensland
  • at least one birth parent and one cultural parent must be a Torres Strait Islander person
  • the birth and cultural parents must be adults at the time of the application
  • at least one birth and one cultural parent must be living at the time the application is made.

There are various reasons for why you might not be eligible to make an application for a Cultural Recognition Order in addition to not meeting the above requirements such as:

  • if a child’s birth has been registered for less than 30 days, or
  • if both the birth parents and cultural parents are deceased.

If you need further information on the eligibility requirements, please contact the Meriba Omasker Kaziw Kazipa Program Support Office on 1800 571 102 or office@ocmokk.qld.gov.au.

Consent to the application

Applying for legal recognition of Ailan Kastom child rearing practice is a consent-based process that requires all parties’ fully informed consent.

In order for the Commissioner (Meriba Omasker Kaziw Kazipa) (the Commissioner) to consider an application for a Cultural Recognition Order, both birth parents and both cultural parents (and any applicable other carers) must provide full, free and informed consent when making the application.

In the case that a birth parent or cultural parent is deceased, an application can still be made as long as consent is provided by the living parents.

What if someone doesn't consent?

If consent is not provided by all living parents, the Commissioner will not be able to consider the application for legal recognition, unless a dispensation of consent order is made by the Court.

Dispensation of consent

It is recognised that there may be circumstances where applicants may be unable to obtain consent.

An application for dispensing with the need for the consent of a parent can be made to the Court. Following consideration of this application, the Court may make a dispensation order which removes the need for that parent’s or another carer’s consent as part of the application for legal recognition.

There are certain criteria which must be met before you apply for a dispensation order.

It is recommended that you seek legal advice about dispensation of consent. Legal services will also be able to provide you with information on how to apply for a dispensation order. You can also contact the Meriba Omasker Kaziw Kazipa Program Support Office on 1800 571 102 or office@ocmokk.qld.gov.au for further information.

It is important to note that family disputes or other family law matters are outside the scope to the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020.

The Family Court deals with family law matters and may be of assistance:

Registration of birth

Read more about registering a birth in Queensland.

An application for a Cultural Recognition Order can only be made if the child’s or adult’s birth was registered in Queensland.

You can apply for a Cultural Recognition Order for a child once the child's birth has been registered for 30 days or more. Birth registration is free but can sometimes be complicated.

If you need help, speak to your local community organisation, or call the Registry of Births, Deaths and Marriages on 13 74 68.

The birth registration has to name the birth parents as the parents, however there is no rule that the child has to take the surname of the birth parents. They can be registered in the names they use now and will keep in the future.

Certified copy of birth certificate

Read more about applying for a Queensland birth certificate.

To apply for a Cultural Recognition Order, you will need a certified copy of the subject person's Queensland birth certificate.

The person applying for a birth certificate has to provide identification. If you can’t access the kinds of identification that the birth certificate application form is asking for, call the Registry of Births, Deaths and Marriages on 13 74 68 so they can help with alternatives.

Make sure you state that the certificate is for an application for a Cultural Recognition Order as it may be issued at no cost.

Informed persons

An informed person is someone who has knowledge and understanding of the specific Ailan Kastom child rearing practice that occurred in relation to the application and can verify that the arrangements occurred in accordance with Ailan Kastom.

Birth parents and cultural parents need an informed person/s to confirm the Ailan Kastom child rearing practice has occurred.

Informed persons will be required to fill out a section of the application form for a Cultural Recognition Order and make a declaration of consent and statement to the application.

An informed person could be a family member such as a grandparent. The informed person for birth parents and cultural parents can be the same person.

Other orders

There may be situations where a child is subject to certain orders such as a final adoption orders under the Adoption Act 2009, or an order under the Family Law Act 1975 (C’wlth) or the Child Protection Act 1999.

Persons granted parental responsibility under these orders will also need to provide consent for Cultural Recognition Order applications.

Before you complete an application for a Cultural Recognition Order, it is important that you have considered how this decision will affect everyone involved. Given the permanent nature of a Cultural Recognition Order it is recommended that independent legal advice is sought.

In this guide:

  1. Legal outcomes of a Cultural Recognition Order
  2. Before you apply for a Cultural Recognition Order
  3. How to apply for a Cultural Recognition Order
  4. After you apply for a Cultural Recognition Order
  5. When a Cultural Recognition Order is made
  6. When a Cultural Recognition Order is not made
  7. Requesting access to information relating to a Cultural Recognition Order or application

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Last updated:
6 September 2021
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