Family law

Contributed by PaulSheiner and KelsiForrest and current to 27 July 2018

In the family law jurisdiction, when the Court determines what is in the best interests of the child, one of the additional considerations that the Court must take into account if the child is an Aboriginal or Torres Strait Islander Child is “the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture and the likely impact of any proposed parenting order will have on that right” (Section 66C(3A)(h)). This includes the child’s right to:

• maintain connection with that culture; and
• have the support, opportunity and encouragement necessary to explore the full extent of that culture relevant to their age and develop a positive appreciation of that culture (Section 66C(7)).

This factor is one of several matters that the court is expressly required to take into account when making orders about the parenting of children. The court has discretion about how much weight to attach to each factor, depending on the particular facts in each case.

‘Family’ for most Aboriginal and Torres Strait Islander peoples is a much wider concept than the nuclear family. Second and third cousins are often regarded as close relatives. There may be multiple mothers (that is, the biological mother and her sisters), fathers etc. ‘Family’ may also include community members who are not related biologically or by marriage, but by skin group.

Western Australian family law legislation provides that a child’s biological parents have responsibility for the child subject to any court orders. This reflects the cultural reality of mainstream Australian families. However, for an Aboriginal or Torres Strait Islander child, culturally speaking, other people may have responsibility for the child as well or instead. Therefore, when considering parental responsibility and identifying persons who have exercise or may exercise parental responsibility for a child, the Court must have regard to any kinship obligations and child rearing practices of the child’s Aboriginal or Torres Strait Islander culture (Section 71A).

This plays a role in family law mechanisms and procedures: who should be a party to the proceedings, who should be otherwise involved (such as expert interviewees, witnesses), what orders should be made to preserve and allow enforcement of the child’s relationships with kin other than parents. The wide concept of ‘family’ and consequent cultural responsibilities also means that Aboriginal and Torres Strait Islander children tend to spend lengthy periods of time in the care of various relatives.

Since culture is experienced by living it, for a child to participate in their culture, they must spend time living in that community. For Aboriginal and Torres Strait Islander peoples, culture and family are therefore inextricably intertwined. There being no generic Aboriginal and Torres Strait Islander culture, but many specific cultures, care must be taken to ensure the child connects with his or her own culture, not a different one. Exposing a Noongar child to Wongi community members for example, is not sufficient for the child to participate in his or her own culture. The evidence that came out of the Stolen Generations Inquiry repeatedly stressed how susceptible a child’s connection to Aboriginal and Torres Strait Islander cultures is to being broken if deliberate efforts are not made to ensure continuity, and how great the risk of psychological harm to the child, especially in the context of identity, if a break does occur.

The relevance of culture in assessment of children’s welfare

B & R & the Separate Representative was a residence case between Australian parents concerning their two year old daughter. The mother is described in the case as “Aboriginal” (which culture is not specified) and the father as “a white Australian”, and similar terminology is used throughout the case. The trial judge decided to exclude evidence that Aboriginal children who are raised in a non-Aboriginal environment suffer difficulties, including damage to their identity and self-esteem, on the ground that the evidence was irrelevant. He held that any child, whatever his or her culture, has a need to know and be comfortable with his or her heritage.

The child had a separate representative, who supported the mother’s appeal to the Full Court of the Family Court, who said in a unanimous judgment that the trial judge’s view was too narrow. The Full Court ordered a re-trial. The Full Court held that the history and current position in Australian life of Aboriginal Australians is unique, as are the struggles they face in a predominantly white culture. The Full Court held that evidence in relation to Aboriginal struggles and experiences is relevant to consideration of the child’s welfare, because it addresses the reality of Aboriginal experience. This is a reality far deeper and more profound than broad “right to know one’s culture” assertions. It was this case that led to earlier versions of Section 66C(3A)(h) being inserted in family law legislation in WA and the Federal law: B & R & the Separate Representative [1995] FamCA 104; [1995] FLC 92-636.

For further information, see Family.

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