Family law plays a role in the 'placement and care' of Indigenous children when parenting disputes come before the Family Court of Australia (except in WA where the State Family Court deals with all family law matters) or those lower courts, presided over by magistrates, which have power to deal with them. The parents do not have to be married: children born outside marriage are treated in the same way as children born within a marriage.

A parenting dispute is typically between the child's two natural parents. The parents may disagree where the child is to live (formerly 'custody' and now 'residence') or whether the other parent should be entitled to see the child and, if so, how often (formerly 'access' now 'contact'). Disputes which could result in an Indigenous child being ordered ('residence' order) to live in a non-Indigenous family and community are usually those where one parent is Indigenous and the other is not. Alternatively, the Indigenous parent's mother, sister, brother, new partner or other relative may be in a dispute with the child's non-Indigenous parent or family.

In evidence to the Inquiry, Family Court Justice Richard Chisholm pointed out the difference between a Family Court residence order dispute and a welfare placement dispute (for example, relating to foster care or adoption). He concluded that the Aboriginal Child Placement Principle can be comfortably applied, consistently with the best interests of the child, in the latter case but not in the former.

I think there is a very important distinction to be drawn between situations in which a child welfare agency has to make a decision about placing a child and they have to decide which foster parents or adoptive parents ... they might place a child in, where the child has been separated from the family for one reason or another. And that's a situation where the decision-maker has to choose from a range of possible placements for a child. That seems to me to be quite a different situation from what used to be called 'custody cases' where you have got a competition between two people who each claim the child and the decision-maker has to choose between them.

... if you are in a situation where you've got a range of possible placements to choose from it seems to me that it is much easier to have a rule that says, 'Prefer some placements to others' (evidence 654).

In other words, the guiding principle of the best interests of the child is easier to accomodate within the Child Placement Principle when there is a range of placement options than when the choice is between two biological parents.

Family Law Act 1975

The Family Law Act 1975 (Cth) was amended in 1996 (effective from 11 June). Two relevant provisions introduced co-operative parenting which means that, regardless of where the child resides, both parents share continuing responsibility for all decisions relating to the child, except with respect to residence and contact and amended slightly the guidelines for determining the child's best interests (previously the child's 'welfare') (Lisa Young submission 816 pages 4-5).

Under the Family Law Act the best interests of the child are the paramount consideration in any decision about a child. Justice Chisholm explained how 'best interests' has been interpreted.

[It] covers a wide range of matters. It 'is not to be measured by money only, nor by physical comfort only ... The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded' ... [It includes] 'all factors which affect the future of the child' ... It includes the child's happiness ... It includes both the immediate well-being of the child and matters relevant to the child's healthy development ... (submission 654 pages 5-6).

The fact that the child's best interests are paramount means that the court's orders will seek to secure those best interests even if this seems unfair to one of the parents.

... when the governing principle is that the child's best interests are the paramount consideration, the court's single task is to make whatever orders it considers will best promote the welfare of the children who are the subject of the proceedings. It follows that the court will make the orders that it considers will best promote the welfare of the child, even if such orders lead to what might be regarded as injustice between the parties (Justice Richard Chisholm submission 654 page 7).

The guidelines

Deciding what is in a child's best interests is largely a matter within the discretion of the particular judge. However, the Family Law Act provides some guidance on what matters have to be taken into account in making that decision. Section 68F (paraphrased) lists,

  • the wishes of the child;
  • the relationship the child has with each parent and other people;
  • the likely effect of any change (for example, of residence);
  • the child's right to maintain personal relations and direct contact with both parents regularly and the practical difficulty and expense of that;
  • the capacity of each parent to provide for the needs of the child, including emotional and intellectual needs;
  • the child's maturity, sex and background, including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders;
  • protecting the child from physical or psychological harm;
  • the parents' attitudes to the child and to their responsibilities as parents;
  • whether there has been violence in the family;
  • whether stability is to be preferred (that is, avoiding further litigation); and
  • anything else the court considers relevant.

The full significance of the inclusion of reference to Indigenous peoples specifically in the guidelines is not clear and will need to be spelt out by the court. Do the guidelines direct a judge to recognise an Indigenous child's need to maintain a connection with his or her culture? Or do they simply invite the judge to decide whether the particular child has that need? A literal interpretation supports the latter view and Justice Chisholm tentatively came to this conclusion in evidence to the Inquiry.

My own tentative view is that the significance of that provision [section 68F] is probably more to set out a checklist of things to be looked at rather than an attempt to attach weight to particular factors (evidence 654).

Similarly, family law lecturer, Lisa Young, submitted that the list of matters to be taken into account 'merely helps the Court keep at the forefront of its mind the sorts of issues that are relevant to such a determination' (submission 816 page 4). This interpretation is supported, too, by the absence from the Act of any reference to the child's right, 'in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language' (article 30 of the Convention on the Rights of the Child). The absence of reference to this right in the Act is odd in light of the fact that the 1996 amendments were largely driven by a desire to reflect more closely the Convention on the Rights of the Child (Lisa Young submission 816 page 4).

The court often obtains much of the evidence about the matters listed in the guidelines from a 'Family Report' (section 62G). The court can order a Family Report and it will be done by a family and child counsellor or a welfare officer, typically social workers or psychologists. The counsellor interviews all the people involved, including significant people in the children's lives, and often visits the home or homes. The counsellor makes 'a professional assessment of the emotional and psychological factors present in the two competing family systems set up by the separated parents, and the children's and parents' roles within those systems' (Hume and Stewart 1996 page 14). Sometimes, too, the counsellor will ascertain the child's wishes:

children cannot give evidence in the Family Court and the parents are recommended not to prejudice the issue by presenting evidence themselves of their child's wishes (Hume and Stewart 1996 pages 3 and 14; under Order 23 Rule 5 the court may take a child's evidence in chambers but in practice this is never done).

Long-term welfare of Indigenous children

The Family Court has recently dealt emphatically with the related topic of how to decide the best interests of a child in the long-term when there is a dispute between an Indigenous parent (or family) and a non-Indigenous parent (or family). Previously there was a tendency to ignore the significance of Aboriginality and Aboriginal culture, some judges and magistrates taking the view that 'the need to treat people equally before the law prevents them giving much weight to [these] issues' (Nicholson 1995 page 11).

However, following the 1995 case In the marriage of B and R, the court is more likely to understand the profound difficulties faced in adolescence and later life by the great majority of Indigenous children brought up in non-Indigenous families. The court in that case rejected the 'equality' argument as based on a misunderstanding of the true nature of equal treatment. It would in fact be unjust to treat as equals people who are not.

... all people should be treated with equal respect. By recognising that this represents the essential content of the ideal of equality, one realises that equal justice is not always achieved through the identical treatment of individuals (B and R page 621).

In B and R the Full Court of the Family Court held that 'the Aboriginality of a child is a matter which is relevant to the welfare [now best interests] of the child'. The court summarised a wide range of research on the subject (page 605).

A. In Australia a child whose ancestry is wholly or partly indigenous is treated by the dominant white society as 'black', a circumstance which carries with it widely accepted connotations of an inferior social position. Racism still remains a marked aspect of Australian society ...

B. The removal of an Aboriginal child from his/her environment to a white environment is likely to have a devastating effect upon that child, particularly if it is coupled with a long term upbringing in that environment, and especially if it results in exclusion from contact with his/her family and culture.

C. Generally an Aboriginal child is better able to cope with that discrimination from within the Aboriginal community because usually that community actively reinforces identity, self-esteem and appropriate responses ...

D. Aboriginal children often suffer acutely from an identity crisis in adolescence, especially if brought up in ignorance of or in circumstances which deny or belittle their Aboriginality. This is likely to have a significant impact upon their self-esteem and self-identity into adult life.

The court concluded that, because of the relevance of the child's Indigenous ancestry to his or her future well-being, the Family Court should order the appointment of a special 'separate representative' for every Indigenous child involved in a parenting dispute. The role of the separate representative (that is, separate from the legal representatives for the mother and father or other family) would include 'to examine these issues and ensure that all relevant evidence and submissions are placed before the court' (page 624).

The court refused to import a presumption that, all other things being equal, an Indigenous child's interests are best served by living with the Indigenous parent or other family member. Thus there is still no automatic preference for the Indigenous parent and the court 'will not assume that Aboriginality is either an advantage or a disadvantage' (Justice Richard Chisholm submission 654 page 9). On the other hand, it was acknowledged that 'many of the matters ... referred [to] above are now so notorious that it would be expected that a trial judge would take judicial notice of them' (page 624). At the same time, the judge will also need 'the detail and thrust of that material to be marshalled and presented to the court by an appropriately qualified expert so as to avoid the risk that the case may turn upon varying degrees of individual [ie judges'] knowledge' (page 624). This would be the role of the separate representative.

Effectively, then, the Full Court has directed that a separate representative is to be appointed in every case involving an Indigenous child to gather evidence relating, especially, to the relationship between the child's Indigenous heritage and his or her future well-being and interests.

Justice Chisholm told the Inquiry,

Hopefully, the decision of B and R will now put some of that expert evidence ... into the cases so that it will be available to judges who read the cases. But that's no substitute for expert evidence in the particular case and, of course the expert evidence in a particular case might relate to the precise community that's involved. We can make some generalisations about Aboriginal people or Indigenous people, but there are often some quite significant differences from one community to another and you might want specific evidence about a particular community (evidence 654).

Lisa Young, however, raised a concern with the Full Court's requirement in B and R that, 'at least for the predictable future', evidence establishing the relevant issues in each case will still need to be adduced (page 624).

There is an interesting analogy here with parenting cases involving homosexual parents. While the Court has gone through in detail the kinds of prejudicial arguments used against such parents, and largely discounted them, they still find the list of questions a useful checklist! In other words, they need to be reconvinced at every turn that homosexual parents are not naturally 'bad parents'. My concern here is that the Court's approach [in B and R] is similar in that it is saying they acknowledge these facts as notorious but want them proved in every case just in case they do not apply for some reason in one case. No doubt such a case may come up but there is no danger that the relevant arguments won't be put when that happens. Asking every applicant to take responsibility for these issues is the wrong solution - this is simply a matter of judicial education ... Heterosexual parents are not asked to prove that they are not naturally bad parents, Caucasians are not put to proof of matters of such notoriety, why should Aboriginal (or homosexual) parents be? (submission 816 page 8).

Kinship obligations

The Family Court clearly has preferred the biological parent over a disputant extended family member in making custody (now residence) orders, although there is no presumption that that should be the case. Nevertheless, the Court, at least in reported cases, has yet to prefer an Indigenous child's grandmother, for example, over the child's natural, non-Indigenous father or mother. Moreover, section 61C recognises only the parental responsibility of each of the biological parents and fails to recognise the child-rearing obligations of others.

By privileging parents and relegating the rights of other family members, the Australian family law system conflicts with Aboriginal child-rearing values. In Aboriginal societies child-rearing responsibilities are shared.

[In Arnhem Land, NT and Mornington Island, Qld] it was the responsibility for an Aunt or Uncle to grow up the child of their sister or brother. It is a belief amongst Aboriginal people living in these areas that because an Aunty or an Uncle are not too emotionally involved with the child that they are able to make the best decisions for his education needs and the future role of the child in becoming a responsible member of the Aboriginal family group (Randall 1982 page 342).

By privileging stability of residence, the system similarly entrenches a bias against the Aboriginal practice of mobility of children among responsible adults and their households.

It seems that Indigenous families respond to the cultural inappropriateness of Australian family law by avoiding the Court and dealing with family disputes informally, or under traditional Law. As Chief Justice Nicholson recently acknowledged,

Historically, indigenous peoples have had little contact with the Court and have been reluctant to seek out the Court's services, even in circumstances where their traditional methods of resolving disputes have failed (1995 pages 11-12).

When a non-Indigenous parent seeks a residence or other parenting order, however, the Indigenous parent and family have no choice but to engage with the Family Court. Section 60B of the Act, which sets out the principles relating to children's welfare, does recognise the child's right of contact 'with other people significant to their care, welfare and development'. This provision invites the submission of evidence in the particular case as to who those people are and how they might be involved in future. Judges familiar with Indigenous cultural values will be able to appreciate the significance of such evidence.

Judges, in common with all other professionals dealing with Indigenous families and children, require ongoing education comprising the history and effects of forcible removal as well as Indigenous cultural values, especially those relating to child-rearing. As Family Court Chief Justice Nicholson stated recently,

... if cases do go to court, and obviously some of them will, justice will not be achieved unless the judicial officer dealing with the particular case has some understanding of the cultural background of the persons with whom he or she is dealing. Misapprehension on the part of the judicial officer as to the meaning of evidence is likely to be productive of serious injustice ... (1995 page 7).

'Cross-cultural' training was planned for 1995 and 1996 for some Family Court judges (Nicholson 1995 page 13, Cooke 1996 page 13). It was suggested to the Inquiry that judicial education needs to be ongoing.

... one of the failings of judicial education programmes is that they seem to be one-off affairs. Judges may only deal sporadically with cases involving Aboriginal parties (given the small number of cases that actually reach a final trial) and cannot be expected to keep at their fingertips knowledge passed on over the course of a few days some years ago ... Moreover, education involves more than placing information at someone's disposal and judges should have the opportunity to engage with the material in more depth in a more appropriate environment (Lisa Young submission 816 page 10).

All officers of the Family Court involved in parenting disputes will need ongoing training to ensure accessibility for, and to avoid discrimination against, Indigenous people. Relevant staff include counsellors and Registrars. The critical role of the counsellor or welfare office preparing a Family Report points to the need to ensure all such staff are thoroughly trained. Our recommendation relating to the role of separate representatives and Aboriginal and Islander Child Care Agencies will only be effective if implemented within an environment of heightened awareness and sensitivity on the part of counselling staff, registrars, judges and all other court officers.

Western Australia

Unique among the States and Territories, Western Australia established its own State Family Court in 1975. The State Act allowed custody and access decisions about all children, whether born in a marriage or not, to be made in the same court on the same principles. Elsewhere in Australia children of a marriage were dealt with under the Commonwealth's Family Law Act 1975 and ex-nuptial children under separate State legislation (except in the Territories where Commonwealth legislation applied). In the 1980s the other States transferred their jurisdiction over ex-nuptial children to the Commonwealth to permit those children to be dealt with under the Family Law Act.

A significant degree of uniformity has been maintained since between the Commonwealth Act and the WA Act. However the Commonwealth amending legislation in 1996 disturbed that uniformity. Legislation to restore uniformity is awaiting enactment in WA. The Inquiry's recommendations are directed explicitly to the Commonwealth's legislation on the understanding that Western Australia will amend the State Act in line with the Commonwealth.