Family Law

Contributed by Dennis Eggington, Tonia Brajcich, Angela Bromfield, Diane Winter and Antonio Buto and current to 1 September 2005

(see also FAMILY )

‘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 and Commonwealth family law legislation provides that a child’s biological parents have responsibility for the child subject to any court orders (see further ‘Care, welfare and development of children’ in FAMILY). 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.

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 current system is flexible enough to accommodate this to a large extent, although highly significant relatives with cultural responsibilities to the child are still sometimes excluded from the family law process. Such decisions fall within the court’s discretion, and so are dependent on the court’s level of understanding of relevant cultural issues.

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. This also can be accommodated in interim residence orders made by the Family Court concerning children: see further ‘Care, welfare and development of children’ in Chapter 19: FAMILY. As discussed above, the wide concept of family and consequent cultural responsibilities is also a factor to be considered under section 68F(2)(f) of the Family Law Act 1975 (Cth) or its section 166 equivalent in the Family Court Act 1997 (WA).

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 section 68F(2)(f)166 being inserted in family law legislation: B & R & the Separate Representative [1995] FamCA 104; [1995] FLC 92-636.

The wide concept of ‘family’ and consequent cultural responsibility also means that should the court decide that one or more relatives should not see the child unsupervised, the court may be able to use other relatives who have the appropriate cultural responsibility to supervise or monitor either the child or the person identified as a risk. Similarly, if the court orders that one or more relatives should not have any contact with the child, there are usually other relatives available to ensure the child maintains a connection with the rest of his or her family and with his or her specific culture.

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. This is unlike the situation for mainstream Australians, whose culture is so prevalent that provided an Australian child spends reasonable periods in Australia, he or she will experience and participate in that culture to at least some extent.

Options for ensuring an Aboriginal or Torres Strait Islander child participates in his or her own specific culture are: residence, contact orders, and mandatory injunctions in favour of family members from that community, identified by name or group.

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 breakdoes occur.

The child’s vulnerability to stereotyping can also be addressed by the courts via s.68F(2)(f) referred to above and through the more general legislative requirement that the court must make the decision that is in the child’s best interests. Some exposure is inevitable, through school, media etc. If a non-Aboriginal/Torres Strait Islander family member holds stereotypical opinions towards the child, the child’s exposure to that person can be reduced or subject to conditions. See the box on page __ for an example of a case where the Family Court has considered this issue.

CARE AND PROTECTION (WARDSHIP) CASES (see YOUNG PEOPLE AND CHILDREN)

For the above reasons, WA Department for Community Development has a policy that children of Aboriginal and Torres Strait Islander families be ideally placed with a member of their family. If that is not possible, then placement should be with a member of that community, and only as a last resort with a non-Aboriginal/Torres Strait Islander carer.