TP Legal’s Third Supreme Court Appearance
TP Legal were once again involved in a monumental Supreme Court Appeal, a proud moment for our highly skilled and dedicated team.
In our third case taken to the Supreme Court, we acted for a mother who was in the process of addressing protective concerns, and therefore not in an immediate position to care for her 9-year-old daughter. Her daughter had been residing with a family friend in the interim. This family friend relinquished care and as a result, the matter was listed in the Melbourne Children’s Court to explore alternative care giving arrangements.
TP Legal’s Position
Our team argued that our client’s daughter should be placed with her maternal uncle, who was newly arrived from Peru and had secured a 12-month VISA. Our client’s brother passed the required police checks and secured appropriate accommodation close to his niece’s school and local community. Despite his efforts, the Department of Families Fairness and Housing’s (DFFH’s) position was that our client’s daughter should be placed in an unknown foster care placement, rather than with her uncle as English was not his first language. Specifically, DFFH’s argument was that she could be in danger if she is unable to communicate effectively with her uncle.
The court heard from our office that:
- The maternal uncle does speak and understand English and intended on enrolling in a language course whilst he was in Australia, to finesse his English even further.
- The child speaks and understands some Spanish herself as she grew up with her mother speaking Spanish, (as well as English).
- The child spent months at time in Peru with her uncle and extended family and had a close familial bond with them all.
- If the child could not remain with the family friend, she expressed that she would like to live with her uncle rather than unknown carers.
- The child would not be in danger as a result of the uncle’s first language being Spanish and not English, and in fact many children are raised by family members that do not come from Anglo-Saxon/English speaking backgrounds.
DFFH’s discriminatory position supported by the Children’s Court
Despite our submissions to the court the Magistrate agreed with the case put forward by DFFH. Specifically, the Magistrate stated that she considered the section 10 Best Interest Principles of the Children’s Youth & Families Act and she was of the view that DFFH’s case should be taken at its highest. The Magistrate stated that she was not satisfied that the child would be able to communicate effectively with her uncle and therefore it was not in her best interests to live with him. She placed our client’s daughter in an unknown foster care placement where she was to remain until the matter next returned to court.
Supreme Court Precedent set once again by TP Legal
The decision to not place a child with a family member because English is not their first language, was an incredibly discriminatory decision that did not sit right with our team at TP Legal. All of our lawyers are the children of immigrant parents therefore it was a decision we felt very passionate about on behalf of our own immigrant families, and those families with beautifully diverse backgrounds.
The Supreme Court Judge heard directly from the uncle. He was able to convey quite clearly that he was willing and able to care for his niece and that him coming from Peru and speaking Spanish should not be viewed as a hinderance, but rather an important tie for his niece to continue to connect with her culture and family’s mother tongue.
It seemed to be a no brainer for the Judge in the Supreme Court, who gave her indication halfway through submissions that DFFH should be supporting the uncle to care for his niece. After this indication was given, the court went into recess and DFFH folded on their position and agreed to place our client’s daughter with her uncle.
As legal aid funding guidelines did not extend to such appeals in the Supreme Court, our firm proceeded with this appeal application proudly out of our own pocket.
Our client’s daughter was reunited with her uncle that day and spent the night with family, rather than strangers.
This appeal is dedicated to our families at TP Legal and all other families who did not grow up with English as their first language, yet still raised their younger generations with love, devotion, and beautifully enriched cultures. We are proud to come from, and know of, so many multicultural families that make Australia the country that it is today.