Lawlink NSW: 3. The Origins of the Principle

3.1 This Chapter outlines the Aboriginal Child Placement Principle (“the Principle”) in the form in which it is commonly found today. The Chapter explores the values and assumptions on which the Principle is based, namely the assumption that it is important for Aboriginal children to remain in Aboriginal communities. The evolution of the Principle is then traced. The development of the Principle is closely linked with the development of Aboriginal and Islander¹ Child Care Agencies (“AICCAs”) and a brief account of the evolution of AICCAs is given. The movement in policy from “assimilation” to the Principle reflects a change in approach to the “best interests” of Aboriginal children. This change is also evident in the area of child custody. This Chapter includes a section which looks at what factors the courts have considered relevant when determining the “best interests” of an Aboriginal child when settling a custody dispute between parents and other relatives.

3.2 Traditionally the Principle has referred, as the name suggests, exclusively to Aboriginal children rather than Aboriginal and Torres Strait Islander children. This section refers only to the Aboriginal Child Placement Principle. A Torres Strait Islander Child Placement Principle is discussed in Chapter 8.

3.3 The Principle essentially outlines a preference for the placement of Aboriginal children with Aboriginal people when they are placed outside their families. The order of preference is generally that an Aboriginal child be placed

3.4 The Principle is based on the premise that Aboriginal children are better off cared for in their Aboriginal families and communities. The Principle is regarded by Aboriginal people as important for Aboriginal communities as well as for Aboriginal children.

3.5 Aboriginal people argue that they, as much as any other people, have the right to raise all their children and to retain them in their community.² This arises from a recognition of Aboriginal people as a distinct but varied cultural group, with the right to retain their own heritage, customs, languages and institutions.³ Aboriginal children provide the link between the past and the future for Aboriginal culture.

3.6 The Principle also follows on directly from the recognition of Aboriginal people’s right to self-determination in respect of their social, economic, political and cultural affairs.⁴ In asserting a right to raise their own children in culturally appropriate ways, Aboriginal people are claiming no more than what most other Australians already take for granted.

3.7 The Principle is also an important acknowledgement by the government that previous policies directed at Aboriginal children have caused suffering to Aboriginal people.⁵

3.8 Continuing contact with Aboriginal community and culture is of crucial importance to Aboriginal children. The disastrous results of past policies of removal and assimilation have proven this.⁶ Being in close contact with extended family and community can be important for the sense of identity of Aboriginal children and young people.⁷ Family and kin have been described as a source of learning and support for Aboriginal children.⁸ It is through this contact also that a young person can become better equipped to cope with racism.⁹

3.9 The Aboriginal population constitutes a minority of the population in Australia and many of the influences in an Aboriginal child’s life will be from the dominant Anglo-Australian culture. It is likely that for many Aboriginal children, their only real opportunity to develop an Aboriginal identity is in an Aboriginal family.¹⁰ This factor has been considered in child custody cases involving Aboriginal children.¹¹

3.10 It seems that placement with Aboriginal carers is important for continuing contact not only with Aboriginal culture, but also with their Aboriginal family. A detailed study of Aboriginal children in foster care in SA in 1988 found that children in Aboriginal placements were receiving more access to their natural families than those in non-Aboriginal placements.¹²

3.11 The importance of keeping Aboriginal children within their extended family and kin group is also of importance with regard to land rights. Mabo v Queensland¹³ changed the common law in Australia to recognise the entitlement of Aboriginal and Torres Strait Islanders, in accordance with their laws and customs, to their traditional lands. In order to establish native title at common law an Aboriginal person, clan or group must “substantially maintain” its traditional connection with the land.¹⁴ Under Commonwealth¹⁵ and similar State and Territory¹⁶ native title legislation Aboriginal people can claim land if they can show unbroken traditional links with land where native title survives.

3.12 However, Brennan J acknowledged that native title could disappear “when the tide of history has washed away any real acknowledgement of traditional law and any real observance of traditional customs”.¹⁷ Thus the forcible removal of Aboriginal people from their land and the removal of Aboriginal children from their communities may well have destroyed, in a legal sense, this traditional connection to the land. In many such circumstances it is likely that Aboriginal people will not be able to establish native title at common law or under the legislation.¹⁸

3.13 These rights could be denied to Aboriginal children placed away from their extended family and community and who lose their links with their kinship group and their land. The Principle is important to prevent further injustice in terms of land rights.

3.14 The form of the Principle varies across the various jurisdictions in Australia. The emergence of the Principle is a significant shift, at a policy level at least, in the thinking of Australian child welfare departments. The Principle is stated policy, in one form or another, in all States and Territories¹⁹ which represents a significant advance from the policies of assimilation and protection discussed in Chapter 2.

3.15 This recognition has been principally due to the efforts of Aboriginal and Islander Child Care Agencies (“AICCAs”), the first of which was formed in 1977.²⁰ At the First Australian Conference on Adoption in 1976 the concerns of Aboriginal people were voiced about the large number of their children in the care of “white” families.²¹ This conference sowed the seeds for the formation of the Principle. It has been largely the work of Aboriginal organisations such as the AICCAs, including the Aboriginal Children’s Services in NSW and Link-Up (NSW)²² which has kept the issue of Aboriginal child care alive and been the force behind the development of the Principle. The AICCAs drew inspiration from the advances in North America regarding American Indian child welfare, namely the introduction of the Indian Child Welfare Act 1978 (US).

3.16 The Federal Indian Child Welfare Act (“the ICWA”) came into effect in 1978. It was considered a major advance in indigenous child welfare.²³ The ICWA was enacted by Congress to:

3.17 The ICWA applies to Indian children²⁵ who are the subject of child custody proceedings, which includes foster care placement, the termination of parental rights and adoptive placement.²⁶ Tribal courts have exclusive jurisdiction over such proceedings involving Indian children residing in or domiciled on a tribal reservation.²⁷ In the case of Indian children not domiciled on a tribal reservation, the ICWA requires the state court to transfer the case to a tribal court unless there is good cause to the contrary, the child’s parents object, or the tribal court declines to accept the transfer.²⁸ If, however, a custody case involving an Indian child is heard in a state court, the child’s tribe has a right to intervene.²⁹

3.18 The ICWA sets down clear preferences for the placement of an Indian child which are similar to the Principle. For the foster placement of an Indian child, these preferences are:

3. an Indian foster home licensed or approved by an authorised non-Indian licensing authority; or

4. an institution approved by an Indian tribe or operated by an Indian organisation which has a program suitable to meet the Indian child’s needs.³⁰

3.19 The ICWA is still in force today and considered largely successful.³² However, it is also a warning against relying solely on legislation to achieve self-determination over child welfare because removal of Indian children from Indian reservations still continues. This is attributed, among other things, to non-Indian couples, religious groups and state agencies wanting to “save” Indian children from a life on a reservation; Indian mothers wanting their children to be adopted by non-Indian people; state courts ignoring the mandate of the tribal courts in Indian child welfare cases;³³ and Indian children getting lost in bureaucratic and jurisdictional disputes.³⁴ The ICWA did, however, prove to be a model which influenced the evolution of the Principle in Australia.

3.20 The Commonwealth Government’s expressed position in 1976 was that Aboriginal child welfare, as with child welfare generally, was the responsibility of the State and Territory Governments.³⁵ This was in response to a call on the Government to “support the setting up of Aboriginal-run and controlled agencies in the States and Territories to facilitate the placement ... of children”.³⁶ The Principle itself was first proposed at the Commonwealth level by the Department of Aboriginal Affairs (Cth) at a conference of the Council of Social Welfare Ministers in 1979.³⁷

3.21 In 1980 the Department of Aboriginal Affairs (Cth) published policy guidelines for the adoption and fostering of Aboriginal children.³⁸ The guidelines, while accepting that adoption and fostering were the preserve of the State and Territory Governments, placed a high priority on maintaining Aboriginal children in their family and community environment for both fostering and adoption.³⁹ They recommended that the advice of appropriate Aboriginal bodies be sought regularly on adoption and fostering procedures and individual placements and that such bodies might assist in the assessment of placements for Aboriginal children and the co-ordination of relevant family and child services.⁴⁰ The role of Aboriginal bodies envisaged by these guidelines went further than the role set out in the Principle which was eventually adopted by the Council of Social Welfare Ministers (“the Council”). The latter form of the Principle does not deal with the issue of Aboriginal control over the placement of Aboriginal children.

3.22 The Council consists of the social welfare Minister of each State and Territory and is advised by the Working Party of State Social Welfare Administrators (“the Working Party”). The Council was slow to pick up on the recommendations of the Department of Aboriginal Affairs and only in 1984 did the Principle receive any express recognition by the Council. Even then, the Principle was not adopted as policy by the Council until 1986.

3.23 In 1983 a report of the Working Party accepted the broad principles of the Department of Aboriginal Affairs guidelines.⁴¹ The Working Party recommendations, endorsed by the Council of Social Welfare Ministers in 1984, regarding fostering and adoption respectively, were:

3.24 The Working Party noted the commitment of all States and Territories to the Principle and believed that effective and acceptable implementation of the Principle was within the capability of each welfare department.⁴⁴ The Working Party recommended that each State and Territory consult with Aboriginal organisations and communities and consider legislative enactment of the Principle.⁴⁵ Ultimately, the Working Party believed that implementation of the Principle rested with the States and Territories, and rejected the idea of federal legislation on the Principle.⁴⁶

3.25 The Working Party’s Report was rejected by the Secretariat of National Aboriginal and Islander Child Care (“SNAICC”)⁴⁷ which didn’t believe it had been prepared with adequate consultation with Aboriginal people.⁴⁸ SNAICC also noted that the report failed to address several major issues, such as the funding of Aboriginal child care agencies and “real decision-making powers to Aboriginal/Island people”. SNAICC also found the rejection of the concept of federal legislation unacceptable.

3.26 It appears that in 1986 a slightly modified version of the Principle was accepted by all States and Territories at the Social Welfare Ministers’ Conference.⁴⁹ The accepted version seems to be the same as that in Departmental Policy (Tas).⁵⁰

3.27 The Ministers agreed to implement the Principle as policy, but not necessarily as legislation. The Ministers were also resistant to the notion of federal legislation regarding the Principle.⁵¹ At this 1986 Conference, the Commonwealth Government made its position clear regarding the Principle:⁵²

3.28 Five years later, this discord between the States and Territories, and the Commonwealth led to the Report on the Joint National Review of the AICCAs (or “Atkinson Report”) into the funding of the AICCAs. It recommended that the Commonwealth and State and Territory Governments join with AICCAs and other funding sources to develop a National Aboriginal Child and Family Welfare Strategy, with the Principle as the primary goal.⁵³

3.29 The 1986 Australian Law Reform Commission Report (“the ALRC Report”) on Aboriginal customary law dealt with issues of child custody, fostering and adoption of Aboriginal children. The ALRC recommended that:

3.30 The ALRC Report also recommended that child welfare legislation should explicitly acknowledge the right of relevant Aboriginal people to be consulted and involved in decisions involving Aboriginal children, and provide a guarantee of involvement and consultation with appropriate family members or an appropriate Aboriginal agency.⁵⁵ In addition, the ALRC recommended that careful attention be given to the possibility of handing over child care responsibilities to regional or local child care agencies backed up by appropriate resources.⁵⁶ The ALRC also promoted the inclusion of the Principle in federal legislation, so that the Principle would apply throughout Australia as a uniform expression of public policy and be more likely to be better known and effectively implemented.⁵⁷

3.31 In 1994, in a response to the recommendations of the ALRC Report on Aboriginal customary law, the Commonwealth Government rejected the ALRC view and re-affirmed its position that the recognition of the Principle is primarily the legislative and administrative responsibility of the States and Territories.⁵⁸

3.32 The ALRC recommendation was, however, supported by the National Council for the International Year of the Family in 1994, which urged the Commonwealth to develop a national policy for Aboriginal and Torres Strait Islander families, children and young people, underpinned by culturally relevant federal legislation. The Council envisaged that such policy and legislation be developed in full consultation with the relevant community organisations and in consultation with the States and Territories.⁵⁹

3.33 Following the adoption of the Principle by the Council of Social Welfare Ministers in 1986, there have been many comments at a federal level, in addition to those of the ALRC, about the need for the Principle to be in legislation. Some have suggested that this legislation should be federal legislation. In 1984, the then Minister for Aboriginal Affairs, the Hon Clyde Holding, held the spectre of federal Aboriginal Child Welfare legislation over the States and Territories in an attempt to convince them to legislate on the Principle. Some Aboriginal groups declared this to be largely a bluff and called for stronger steps to be taken.⁶⁰ Around this time there was also pressure at a State level, in NSW at least, for the Principle to be implemented in federal legislation.⁶¹

3.34 The Royal Commission into Aboriginal Deaths in Custody (“the RCIADIC”) in 1989 affirmed the need for the Principle to be contained in legislation, and recommended in its report:

3.35 In 1989 Mr Brian Burdekin, then the Human Rights Commissioner, suggested that federal legislation in certain areas of child welfare generally needed to be seriously considered.⁶³ Inclusion of the Principle in legislation was also supported in the Human Rights and Equal Opportunity Commission Report (“HREOC Report”) into homeless youth in 1989.⁶⁴ The HREOC Report also identified the urgent need to provide the AICCAs with resources and administrative support in order fully to implement the Principle.

3.36 In 1995, the Commonwealth Government initiated a National Inquiry into Separation of Aboriginal and Torres Strait Islander Children conducted by HREOC and chaired by the President of HREOC, Sir Ronald Wilson. The then Attorney-General requested that HREOC examine, among other issues, current laws, practices and policies with respect to the placement and care of Aboriginal and Torres Strait Islander children and advise on any reforms required taking into account the principle of self-determination by Aboriginal and Torres Strait Islander peoples.⁶⁵ The Commonwealth Government’s submission to the Inquiry referred briefly to the Principle, claiming that it had been incorporated into legislation in most jurisdictions.⁶⁶ To date, HREOC has not reported on the National Inquiry. There is presently no federal legislation regarding the placement of Aboriginal or Torres Strait Islander children.

3.37 The response from the State and Territory Governments has not been overwhelming. Over a decade after the Working Party of State Social Welfare Administrators recommended in 1983 that the implementation of the Principle was the responsibility of the States and Territories, only half the States and Territories in Australia have some form of the Principle in legislation relating to the adoption and fostering of Aboriginal children.⁶⁷ All States and Territories maintain that the Principle is applied by way of administrative policy, yet the figures do not necessarily substantiate the effectiveness of such policies.⁶⁸ Even in the States and Territories which have included the Principle in legislation, the actual wording and effect of the Principle varies.⁶⁹

3.38 The Federal Government maintains the position that Aboriginal child welfare is a matter of State and Territory Government responsibility and, as such, any legislation should be at a State and Territory level. Some Aboriginal organisations believe that leaving the implementation of the Principle to the discretion of the States and Territories has been ineffective and that it is time for Federal legislation. The Chief Justice of the Family Court of Australia, the Hon Alastair Nicholson, is also of the view that “[s]o far as Aboriginal and Torres Strait Islander children are concerned the Commonwealth has a primary legislative responsibility”.⁷⁰

3.39 The legislation envisaged by Aboriginal organisations would construct an Aboriginal child welfare system run by Aboriginal communities and Aboriginal organisations, based on a model implemented in the United States by the Indian Child Welfare Act 1978 (US).⁷¹

3.40 SNAICC has been calling for culturally relevant national legislation, acceptable to all Aboriginal and Islander communities, relating to Aboriginal and Torres Strait Islander child welfare for over 25 years. SNAICC maintains that Aboriginal customary practice is more amenable to federal legislation. It also submits that the problems faced by indigenous children are unique and warrant separate attention rather than trying to solve problems within the existing framework of state child welfare legislation. Many Aboriginal children are still to a large extent identified by their kinship ties, which do not correspond with the artificial boundaries of States and Territories. SNAICC argues that different pieces of State and Territory legislation cut across tribal boundaries and impose different regimes on Aboriginal children regardless of the differing areas of customary jurisdiction.⁷² This denies Aboriginal people the right to operate according to their tribal and regional identities which are linked to their identification with their lands. SNAICC passed a resolution in 1984 calling for national legislation⁷³ which it envisaged would:

3.41 The Commonwealth Government arguably already has the power to implement such legislation under s 51(xxvi) of the Constitution which gives the Commonwealth “special powers” to legislate for Aboriginal people.⁷⁵ The Commonwealth also unquestionably has the power under s 51(xxix) of the Constitution which allows the Federal Government to legislate to bring into effect treaties, such as the United Nations Convention on the Rights of the Child (“UNCROC”), which Australia has ratified.⁷⁶ Australia is obliged under Article 4 of UNCROC to undertake all legislative, administrative and other measures for the implementation of rights under UNCROC.⁷⁷ Such an obligation would implicitly require that there is consistency and uniformity in the measures taken. The current approach of the Australian States and Territories in the area of Aboriginal child welfare can be described as anything but uniform and consistent. This is despite the ten years which have passed since the State Social Welfare Ministers agreed to implement the Principle. It is also generally accepted that a state party to a convention cannot avoid its obligations under that convention by maintaining that the responsibility lies with its constituent member states.

3.42 If the Commonwealth Government were to legislate in the area of Aboriginal child welfare to give effect to the provisions of UNCROC, such legislation would override any inconsistent State legislation.⁷⁸ Such legislation may meet with opposition from the State Ministers, who may resent the intrusion of the Federal Government into their fundamental powers. Alternatives have also been put forward, one of which is a uniform “Model Child Care and Welfare Legislative Code”, agreed upon by all States and Territories.⁷⁹ Another option may be to ensure that all States and Territories comply fully with the Principle and the recommendation of the RCIADIC, through the Standing Committee of Attorneys-General or the Council of Social Welfare Ministers.⁸⁰ Aboriginal groups may well be sceptical at the likelihood of the States succumbing to such pressure now, when previous pressure has achieved little more than policy in some States. They are acutely aware of the difficulties of achieving lasting consensus between the States and Territories.⁸¹

3.43 The impetus for establishing AICCAs came from the Aboriginal Legal Service in Victoria in the 1970s which identified a need for an Aboriginal child placement service. It observed that approximately 90% of its Aboriginal clients seeking assistance for criminal charges had been in some form of placement - foster, adoptive or institutional placement.⁸² The formation of AICCAs became a reality following the First National Conference on Adoption in 1976. This Conference saw the issue of the adoption of Aboriginal children forced onto the mainstream agenda for the first time.⁸³

3.44 There are now almost 100 Aboriginal and Torres Strait Islander community-run children’s services scattered throughout Australia.⁸⁴ AICCAs play a crucial role in the welfare of Aboriginal children by providing localised services for Aboriginal and Torres Strait Islander children and their families including family counselling, court advocacy, substitute care, vacation care, after school care and family day care.⁸⁵ The basic principles behind AICCAs’ services have been described as:

3.45 AICCAs have been characterised as carrying on the long tradition of resistance by Aboriginal people.⁸⁷ They challenge the image of Aboriginal people as merely passive victims of welfare policy. It is in organisations such as AICCAs that the roots of Aboriginal and Torres Strait Islander self-determination in child care may be found.⁸⁸ AICCAs have been described as:

3.46 Both the ALRC Report and the HREOC Report⁹⁰ recognised the crucial role of AICCAs in the effective implementation of the Principle. However, there is even less legislative recognition of the role of AICCAs than that of the Principle. Only two States, Victoria⁹¹ and South Australia,⁹² give statutory recognition to specific AICCAs by way of a Ministerial declaration or gazetted notice. In other jurisdictions⁹³ it is a requirement to consult with “appropriate Aboriginal welfare organisations” before making an adoptive or foster placement involving an Aboriginal child. However, some Aboriginal child care organisations resent being referred to as “welfare organisations”.⁹⁴ Also, the decision about which organisations are “appropriate” is left to the discretion of administrators.

3.47 Much has been achieved by these organisations over these 20 years. As a result of their efforts, there is a greater awareness of the importance of keeping Aboriginal children in Aboriginal communities. Despite this, AICCAs continue to struggle for recognition of their role in the welfare of Aboriginal children and for resources to sustain their work. The major problems of Aboriginal organisations have been identified as grossly inadequate resources, excessive caseloads, lack of recognition by the appropriate authorities to determine the future of Aboriginal children and total reliance on government funding.⁹⁵

3.48 SNAICC was founded in 1981 by a group of Aboriginal people from around Australia representing various AICCAs.⁹⁶ It was formed as a national umbrella organisation for all AICCAs and has been calling for federal Aboriginal child welfare legislation since its inception. The Chairman of SNAICC describes it as:

3.49 In NSW AICCAs tend to be called Aboriginal Children’s Services. The first Aboriginal Children’s Service (“the ACS”) was established in Sydney in 1975. It is a community-based, Aboriginal controlled, Aboriginal staffed child care agency. It operates on a State-wide basis. The aims of the agency are to:

3.50 The ACS was originally funded by Australian Catholic Relief, but now operates on a mixture of Commonwealth¹⁰⁰ and NSW Government¹⁰¹ funding. The ACS runs, among other services, a foster placement service for children in need of short-term alternative care. The ACS is also a member of SNAICC. There are now nine Aboriginal organisations providing services for Aboriginal children throughout NSW: in Redfern, St Mary’s, Cowra, Wagga Wagga, Nowra, Dareton, Coffs Harbour, the Hunter region and the Manning region.¹⁰²

3.51 AICCAs receive funding from various sources. This section outlines the somewhat ad hoc manner in which the Commonwealth and NSW Governments fund the AICCAs in NSW. The Commonwealth Government’s involvement with two of the AICCAs in NSW has been long-running and their continued funding of these services seems to stem from this history rather than an acceptance of responsibility for the services.

3.52 The AICCA in Victoria was initially funded by the Office of Child Care in the Commonwealth Social Security Department.¹⁰³ It seems that, in the face of State and Territory inaction, the Commonwealth felt “compelled” to act on the “appalling” numbers of Aboriginal children entering the child welfare system across Australia.¹⁰⁴ The Commonwealth then funded other AICCAs across Australia through its Family Services Program in what has now become the Department of Health and Family Services. There was contention between the Commonwealth and State and Territory Governments over the disparity in contributions to AICCAs which led to a Commonwealth review of its funding of AICCAs in 1991.¹⁰⁵ State funding was found to be far less than Commonwealth funding, even though the activities carried out by AICCAs were regarded as being more in the area of State and Territory responsibility.¹⁰⁶ Lack of effective integration and co-ordination between the funding sources of AICCAs was also identified as a factor hampering the effective operation of AICCAs.¹⁰⁷

3.53 In 1995, Senator Crowley, then the Minister responsible, after consulting with the Minister for Aboriginal and Torres Strait Islander Affairs, gave an undertaking that the Commonwealth would continue to fund the AICCA program. This undertaking was consistent with the wishes of AICCAs to maintain links with the Commonwealth. The Department is in the process of negotiating agreements with the AICCAs which distinguish the functions of the AICCAs funded by the Department from those functions funded by other sources, such as ATSIC and State Governments.¹⁰⁸ The Commonwealth Department of Health and Family Services now funds eleven AICCAs across Australia to assist in their fostering and adoption of Aboriginal and Torres Strait Islander children and related family welfare matters.¹⁰⁹ In NSW the Commonwealth contributes to the funding of the ACS (Redfern)¹¹⁰ and the Coffs Harbour Aboriginal Family and Community Care Centre.¹¹¹

3.54 The Aboriginal and Torres Strait Islander Commission (ATSIC) has a supplementary role in the funding of AICCAs, although it does not accept a specific responsibility in the area of Aboriginal child care. ATSIC tends to fund specific projects or provide “one-off” grants, although the future of such grants is now tenuous due to funding cuts to ATSIC.

3.55 The NSW Department of Community Services funds a number of ACS organisations to provide alternative care (both through foster care and group homes) for Aboriginal children.¹¹² These organisations include:

3.56 The Principle strictly applies to the placement of Aboriginal children outside of their natural family for fostering and adoption. However, disputes over where Aboriginal children should live also arise between parents and relatives in child custody disputes. An examination of the principles applied to such custody disputes highlights issues involved with the operation of the Principle.

3.57 Disputes between parents over the custody of children of a marriage are a Commonwealth matter governed by the Family Law Act 1975 (Cth) and are dealt with in the Family Court of Australia. Custody of Aboriginal and Torres Strait Islander children under the Family Law Act 1975 (Cth) is governed by the same law and principles as that for non-Aboriginal and non-Torres Strait Islander children.¹¹³ Disputes over the custody of children can also arise between birth parents and foster or adoptive parents, and these matters generally are dealt with in the Supreme Court of the relevant State or Territory.

3.58 While there is no formulation of the Principle in the Family Law Act 1975 (Cth),¹¹⁴ the Family Court has indicated the factors it considers important in the determination of the “best interests” of an Aboriginal child. The “best interests of the child” is the paramount consideration for the Court in making a parenting order for the child.¹¹⁵ The leading cases generally involve a dispute between Aboriginal parents¹¹⁶ or their relatives and non-Aboriginal parents or their relatives.

3.59 It has been firmly established that one culture or race is not to be preferred over another in determining the best interests of a child.¹¹⁷ All relevant factors must be taken into consideration.¹¹⁸ Section 64 of the Family Law Act 1975 (Cth) listed a number of factors which the Court was required to take into account in considering the welfare of the child, but did not specifically refer to the cultural or ethnic background of the child.¹¹⁹ The Family Law Reform Act 1995 (Cth) amended the relevant section to include the child’s background, generally, as one of the factors which the Court must consider when determining the child’s best interests which includes a child’s “need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders”.¹²⁰ This section has not as yet been considered by the courts.

3.60 Previously, judges were not required to consider a child’s Aboriginal or Torres Strait Islander origins, but were required to take into account any fact or circumstance relevant to the child’s welfare.¹²¹ There have been a number of cases in which a child’s Aboriginality has been a relevant consideration in determining the best interests of the child. Judges have shown an increasing awareness that it is inappropriate to apply European standards to an Aboriginal way of living when determining where a child should live.¹²² In some cases, the standard of living and material benefit to the child offered by the relevant Aboriginal community was lower than that offered by the non-Aboriginal family in which the child would live. Even so, the Court found that by Aboriginal standards the standard of living was adequate and placed the child with the Aboriginal parent.¹²³ While the Family Court has moved away from an emphasis on the standards of health and hygiene of white suburban Australia as a primary consideration, there has also been a note of caution:

However, the Court made it clear that such factors are only to be considered if they are relevant to the facts of the individual case.¹²⁵

3.61 The courts have considered a number of factors to be relevant to the child’s welfare in cases involving the custody of an Aboriginal child.¹²⁶

3.62 The Full Family Court in In the Marriage of B and R¹²⁷ considered that the difficulties faced by Aboriginal people both throughout Australian history and at the present time means that their current position in Australian society is unique. Because of this unique history and position, it is not enough to consider an Aboriginal child’s rights in terms of a general right of every child to know their cultural heritage.¹²⁸ To do so is to adopt too narrow a view of the significance of the child’s Aboriginality.¹²⁹

3.63 The Aboriginal origin of a child has been considered relevant in determining whether custody should go to the Aboriginal or non-Aboriginal parent.¹³⁰ It has been argued that even though there should not be a preference for one culture over another, the Aboriginal culture and background available to an Aboriginal child placed with Aboriginal people should be regarded as “a positive feature, able to provide something worthwhile to these children”.¹³¹ Aboriginal history and culture “are to be seen as important in regard to the sense of identity and development of these [Aboriginal] children, as part of their links to an Aboriginal culture and heritage”.¹³² In one case it was considered that the Aboriginal father and his parents were best able to equip the child to deal with his mixed racial background.¹³³

Difficulties for Aboriginal children in integrating into non-Aboriginal society

3.64 Difficulties encountered by children of both Aboriginal and European descent in integrating into the society of a European parent after marriage breakdown have also been considered relevant.¹³⁴ In In the Marriage of McL the Judge took note of “the notorious fact that life in this country is fraught with difficulty for children of mixed blood attempting to come to terms with white society”.¹³⁵

3.65 Another relevant factor is the potential for loss of contact with the Aboriginal parent’s traditions and culture.¹³⁶ In Jones v Darragh it was considered that the only real opportunity for the children to develop the Aboriginal side of their identity was for them to live in an Aboriginal family.¹³⁷

3.66 The extended family support that may be available to a child in an Aboriginal community has also been considered relevant.¹³⁸ The Family Court has considered that contact with a child’s extended Aboriginal family is valuable.¹³⁹ One judgment in particular praised the role of the extended family in Aboriginal communities:

3.67 Differing attitudes in Aboriginal and non-Aboriginal communities to issues such as children of mixed racial parentage have been relevant to a consideration of the welfare of the child.¹⁴¹ For example, the Court in McMillen v Larcombe considered that an intellectually disabled child would experience fewer pressures living in an Aboriginal community than living in a white community.¹⁴²

3.68 The Court has also considered the racial prejudice a child may suffer or whether the child will be brought up in an atmosphere of racial tension. In F v Langshaw¹⁴³ the Court considered that, even though the child in question may encounter racial discrimination at an earlier age if he stayed with his Aboriginal father in Moree, the father and his extended family, being members of the Aboriginal community, would be in a better position to support him and sustain his self-esteem than the proposed non-Aboriginal adoptive parents.¹⁴⁴ There was cautious support for the notion that Aboriginal people may be better able to instil self-esteem and support in Aboriginal children in situations of racial prejudice.¹⁴⁵

3.69 The extent of discrimination a child may be subject to in a particular situation has also been considered by the Court. In In the Marriage of R and R¹⁴⁶ it was found that the child, being of mixed racial parentage, would experience far less discrimination in an Aboriginal community than she might encounter in white suburban society.¹⁴⁷

3.70 The following factors have also been considered relevant to a consideration of the child’s best interests:

3.71 While consideration of these factors does not necessarily result in custody being given to the Aboriginal parent, each factor can lend weight towards such a result. There is no presumption that any of these factors is applicable to a particular Aboriginal child.¹⁵² The court is also assumed to have some knowledge of the effects of white settlement on Aboriginal people,¹⁵³ and of attitudes prevalent in Australian society in making its decisions.¹⁵⁴

3.72 One factor which has weighed against custody being awarded to the Aboriginal parent is the length of time the child has spent in the care of foster parents. In Torrens v Fleming¹⁵⁵ custody of an Aboriginal child was given to the non-Aboriginal foster parents who had cared for the child for nearly ten years. The child’s need for stability, security and certainty were considered more important than her need to be with her Aboriginal mother and to experience Aboriginal culture.¹⁵⁶ This raises a difficult question as to what length of time in non-Aboriginal care is sufficient to displace an Aboriginal child’s need to be with their Aboriginal family and Aboriginal community.

3.73 As was noted by the ALRC, the courts have generally adopted a fairly enlightened and sensitive interpretation of “the best interests of the child” when dealing with the custody of Aboriginal children.¹⁵⁷ However, in the majority of child welfare cases, such decisions are made by administrative officers, who are not required to give reasons for their decisions. The vague concept of “best interests of the child” leaves room for the decision-maker to exercise discretion, and makes any decision made in the “best interests of the child” difficult to challenge.

3.74 The ALRC specifically recommended that the Principle should not apply in custody disputes between parents or indeed between relatives.¹⁵⁸ It was the ALRC’s view that the Principle should not give statutory preference to one parent over another and in such cases the welfare of the child should be of paramount importance. However, the ALRC did refer favourably¹⁵⁹ to Chief Judge Evatt’s dissenting judgment in Goudge which stated that, while the Principle did not have a place in determining the custody of children from a marriage in which one partner is Aboriginal and the other partner is non-Aboriginal, it did indicate that cultural factors are to be given weight in deciding the best interests of the child:

3.75 The Principle was also referred to in F v Langshaw.¹⁶¹ The Judge accepted the recommendations of the Aboriginal Children’s Research Project contained in the report Aboriginal Children in Substitute Care that:

The Judge accepted that such a principle should be followed in the case of a child whose mother and father are Aboriginal and a child who has one Aboriginal parent and has been brought up by Aboriginal caregivers for any significant period in his or her life. However, the Judge was also keen to limit these comments only to the facts of that case, and not to lay down any principles to be followed in other cases.

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2. NSW - Aboriginal Children’s Research Project Aboriginal Children in Substitute Care (Principal Report, Part 1, July 1982) at 3 (the “Aboriginal Children’s Research Project Principal Report”).

3. “Children are the guarantee of the survival and reproduction of any people. They are our future generations who we will entrust with the laws, practices and customs which we in turn have tried to keep alive. Our laws, practices, languages (where they survive) and customs are at the same time our reason for survival and the guarantee of our survival. Without them we have no distinct identity. We believe it is necessary to keep these customs alive because the alternative is destructive, individualistic and short-sighted. It does little or nothing to contribute to the future survival and advancement of the population of the world, let alone that of Australia.”: B Butler “Aboriginal Children: Back to Origins” (1993) 35 Family Matters 7 at 8.

5. Chisholm believes that the Aboriginal Child Placement Principle sits well with “an acceptance of cultural and racial diversity (multi-culturalism) and a wish to acknowledge the claims of Aboriginal people arising from their status as indigenous people, and the history of injustice towards them”: R Chisholm “Aboriginal Children and the Placement Principle” (1988) 2(31) Aboriginal Law Bulletin 4 at 4.

6. “The argument for confining the principle to Aboriginal children is a practical one: that in view of the past practice of placing Aboriginal children away from their own people, and continuing prejudice against Aboriginal people, it is desirable to state in a public and formalised way that courts should acknowledge the value to Aboriginal children of continuing links with their cultural heritage and identity.”: R Chisholm Black Children: White Welfare? Aboriginal Child Welfare Law and Policy in New South Wales (Social Welfare Research Centre, University of NSW, Reports and Proceedings No 52, April 1985) at 105.

7. This may better equip an Aboriginal child to deal with the inevitable questions of identity and belonging which arise in adolescence. See para 3.70 and also NSWLRC Report 81 at paras 8.28-8.29 and 8.32-8.40.

8. I O’Connor The Impact of Queensland’s Family and Child Welfare and Juvenile Justice Legislation, Policy and Practice on Aboriginal and Torres Strait Islander Families and Children (prepared for the Royal Commission into Aboriginal Deaths in Custody, Queensland, November 1990) at 6. See also paras 2.50-2.52.

9. A strong version of this idea was stated in the Workshop on Aboriginal Community and Adoption at the First Australian Conference on Adoption in 1976: “The major point which whites fail to grasp is that in a racist society an individual is either white or black. One cannot be part black, part white. An Aboriginal child will soon learn from his white classmates that he is not one of them, that he is different, and that he belongs to the black community. Even if he looks white. The position taken by Aborigines on this issue is therefore that any child of Aboriginal parentage, no matter what his physical appearance or his degree of Aboriginality is an Aborigine.”: E Sommerlad (ed) “Homes for Blacks: Aboriginal Community and Adoption” in C Picton (ed) Proceedings of First Australian Conference on Adoption (Sydney, 15-20 February 1976) 159 at 164. A counter view has also been argued, that an Aboriginal or Torres Strait Islander child can also get a poor sense of identity in an Aboriginal or Torres Strait Islander family if the family isn’t appropriate: Submission to Research Report (Confidential). See also para 3.68 and NSWLRC Report 81 at paras 8.69-8.73.

10. This was a factor which was considered by the Family Court in deciding to give custody of two Aboriginal children to their Aboriginal father over their non-Aboriginal foster parents: Jones v Darragh; Department of Community Services (1992) 15 Fam LR 757 at 769.

12. South Australian Aboriginal Child Care Agency Identity and Belonging in Aboriginal Foster Care: A Study of Aboriginal Children in Long Term Foster Care, Their Foster Families and Natural Families (SA Aboriginal Child Care Agency Forum Inc, Adelaide, 1988) at 9.

21. C Picton (ed) Proceedings of First Australian Conference on Adoption (Sydney, 15-20 February 1976).

22. Link-Up (NSW) is an Aboriginal organisation founded in 1980 and based in NSW. It assists Aboriginal people who were removed or separated from their families to find their way home to their family and their Aboriginal culture.

23.N D’Souza “Aboriginal Child Welfare: Framework for a National Policy” (1993) 35 Family Matters 40 at 42.

25. An “Indian child” under the ICWA means “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”: 25 USC �� 1903(4)

32. P Kunesh “Building Strong, Stable Indian Communities through the Indian Child Welfare Act” (1993) 27 Clearinghouse Review 753 at 753.

33.D J Goldsmith “Individual v Collective Rights: The Indian Child Welfare Act” (1990) 13 Harvard Women’s Law Journal 1 at 45.

35.NSW - Department Of Community Services Learning from the Past: Aboriginal Perspectives on the Effects and Implications of Welfare Policies and Practices on Aboriginal Families in NSW (Prepared by Gungil Jindibah Centre, 10 October 1994) at 48.

36.This issue of Aboriginal self-determination in the area of child welfare was raised by Senator Keefe: Australia Parliamentary Debates(Hansard) Senate, 17 March 1976at 531.

37. Representing the Welfare Ministers of all States and Territories in Australia.

38. Australia - Department of Aboriginal Affairs Aboriginal Adoption and Fostering - Policy Guidelines (Doc.B.10.3, January 1980) (“Department of Aboriginal Affairs Policy Guidelines”) reproduced in Australian Law Reform Commission Aboriginal Customary Law: Child Custody, Fostering and Adoption (Research Paper 4, 1982) at Appendix 1 (“ALRC RP 4”).

39. “Where action to commit an Aboriginal child to care appears necessary, State Government Departments and voluntary welfare organisations concerned with fostering programs should attempt to follow these procedures:

- develop adequate support services in order to help parents care for their children in satisfactory ways; or

- foster the child with Aboriginal relatives or with other Aboriginal foster parents preferably in the same Aboriginal community.” The guidelines also stated that Aboriginal children should be adopted with Aboriginal families wherever possible: Department of Aboriginal Affairs Policy Guidelines.

41. Australia - Working Party of the Standing Committee of Social Welfare Administrators Aboriginal Fostering and Adoption: Review of State and Territory Principles, Policies and Practices (October 1983) (the “Working Party Report”).

47. The umbrella organisation for Aboriginal and Islander Child Care Agencies in Australia. See para 3.48.

48. The Report was rejected at the National Conference of Aboriginal and Islander Child Care Agencies (March 1984, Townsville) cited in R Chisholm Black Children: White Welfare? Aboriginal Child Welfare Law and Policy in New South Wales (Social Welfare Research Centre, University of NSW, Reports and Proceedings No 52, April 1985) at 110-111.

49. Department of Community and Health Services (Tas) Departmental Policy; D Wilkinson “Aboriginal Child Placement Principle: Customary Law Recognition and Further Legislative Reform” (1994) 3(71) Aboriginal Law Bulletin 13 at 13.

50. Department of Community and Health Services (Tas) Departmental Policy (see Appendix G). Exhaustive efforts to verify the exact form of this Principle have proved unsuccessful.

51. R Chisholm “Aboriginal Children and the Placement Principle” (1988) 2(31) Aboriginal Law Bulletin 4 at 4.

52. Statement by the Minister for Aboriginal Affairs, Mr Holding, and the Minister for Community Services, Senator Grimes, referred to as the “Holding-Grimes Agreement” cited in G Atkinson Report on the Joint National Review of Aboriginal And Islander Child Care Agencies [AICCAs] (Report to the Ministers for Aged, Family and Health Services and Aboriginal Affairs, January 1991) at 9-10 (the “Atkinson Report”).

54. Australian Law Reform Commission The Recognition of Aboriginal Customary Laws (Report 31, 1986) at para 366.

58.Australia - Office of Indigenous Affairs Aboriginal Customary Laws: Report on Commonwealth Implementation of the Recommendations of the Australian Law Reform Commission (Department of the Prime Minister and Cabinet, AGPS, Canberra, 1994) at 25.

59. Australia - National Council for the International Year of The Family Creating the Links: Families and Social Responsibility. Final Report by the National Council for the International Year of the Family (AGPS, Canberra, 1994) at 142.

60.B Butler “Words are not Enought” in J Harvey, U Dolgopol and S Castell-McGregor (eds) Implementing the UN Convention on the Rights of the Child in Australia (Proceedings of a National Seminar of the South Australian Children’s Interest Bureau, Adelaide, February 1992) 17 at 18.

61. The Aboriginal Children’s Research Project recommended that the Principle be adopted to reduce the large numbers of Aboriginal children in substitute care. It also recommended federal legislation to guarantee the rights of Aboriginal children to remain in their communities and to protect them from undue intervention by State authorities: NSW - Aboriginal Children’s Research Project Aboriginal Children in Substitute Care (Principal Report, Part 1, July 1982) at viii.

62. Recommendation 54: E Johnston Royal Commission into Aboriginal Deaths in Custody - National Report: Overview and Recommendations (AGPS, Canberra, 1991).

63. B Burdekin “The Draft UN Convention on the Rights of the Child: An Australian Perspective” (1989) 1 Australian Social Policy 71 at 71.

64. Australia - Human Rights and Equal Opportunity Commission Our Homeless Children: Report of the National Inquiry into Homeless Children (Canberra, AGPS, 1989) at 135.

65. Terms of Reference for the National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families dated 2 August 1995, as amended. HREOC is expected to report on its findings in mid-1997.

66. Australia National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families: Commonwealth Government Submission (October 1996) at 5.

67. Those pieces of legislation which include the Principle are: Adoption Act 1993 (ACT) s 21; Children (Care and Protection) Act 1987 (NSW) s 87; Community Welfare Act 1983 (NT) s 69; Adoption of Children Act 1994 (NT) s 11; Children’s Protection Act 1993 (SA) s 5; Adoption Act 1988 (SA) s 11; Children and Young Persons Act 1989 (Vic) s 119; and Adoption Act 1984 (Vic) s 50.

70.A Nicholson “Indigenous Customary Law and Family Law”, address to the Indigenous Customary Law Forum (18 October 1995, Canberra) at 4 [emphasis in original].

72.B Butler “Our Responsibility for Our Children’s Future”, Paper presented at the International Year of the World’s Indigenous Peoples Conference (Wollongong, December 1993) at 4.

73.R Chisholm “Destined children: Aboriginal Child Welfare in Australia: Directions of Change in Law and Policy” (1985) 14 Aboriginal Law Bulletin 6 at 8.

74.N D’Souza “Aboriginal Child Welfare: Framework for a National Policy” (1993) 35 Family Matters 40 at 45.

76. R v Burgess; Ex parte Henry (1936) 55 CLR 608; Koowarta v Bjelke-Petersen (1982) 153 CLR 168; Commonwealth v Tasmania (Tasmanian Dams case) (1983) 158 CLR 1; Queensland v Commonwealth (1989) 167 CLR 232; Polyukhovich v Commonwealth (1991) 172 CLR 501.

77.“State Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention”: UNCROC Article 4.

79. D Wilkinson “Aboriginal Child Placement Principle: Customary Law Recognition and Further Legislative Reform” (1994) 3(71) Aboriginal Law Bulletin 13 at 14.

81. B Butler “Our Responsibility for Our Children’s Future”, Paper presented at the International Year of the World’s Indigenous Peoples Conference (Wollongong, December 1993) at 5-7.

82. E Sommerlad (ed) “Homes for Blacks: Aboriginal Community and Adoption” in C Picton (ed) Proceedings of First Australian Conference on Adoption (Sydney, 15-20 February 1976) 159 at 161.

83. C Picton (ed) Proceedings of the First Australian Conference on Adoption (Sydney, 15-20 February 1976). See also NSW - Department Of Community Services Learning from the Past: Aboriginal Perspectives on the Effects and Implications of Welfare Policies and Practices on Aboriginal Families in NSW (Prepared by Gungil Jindibah Centre, 10 October 1994) at 49.

84. B Butler “Aboriginal Children: Back to Origins” (1993) 35 Family Matters 7 at 8.

85. Secretariat of National Aboriginal and Islander Child Care “Child Abuse and Neglect from an Aboriginal Perspective: Paper to Sixth International Congress on Child Abuse and Neglect” (1987) 3(2) Black Voices 25 at 29.

87. R Chisholm “Destined Children: Aboriginal Child Welfare in Australia: Directions of Change in Law and Policy” (1985) 14 Aboriginal Law Bulletin 6 at 6.

89. Secretariat of National Aboriginal and Islander Child Care (SNAICC) “Child Abuse and Neglect from an Aboriginal Perspective: Paper to Sixth International Congress on Child Abuse and Neglect” (1987) 3(2) Black Voices 25 at 29.

91. Children and Young Persons Act 1989 (Vic) s 6; Adoption Act 1984 (Vic) s 50(3)-(5) (see Appendix H).

93. Community Welfare Act 1983 (NT) s 69 and Adoption of Children Act 1994 (NT) s 11(1) (see Appendix D); Children (Care and Protection) Act 1987 (NSW) s 87 (see para 4.4).

96. N D’Souza “The Secretariat of the National Aboriginal and Islander Child Care” (1994) 18 Aboriginal and Islander Health Worker Journal 27 at 27.

97. B Butler “Adopting an Indigenous Approach” (1989) 13 Adoption and Fostering 27 at 28.

100. Provided by the Aboriginal and Torres Strait Islander Commission (Cth) and the Department of Health and Family Services (Cth).

103. M Dyer “Working With Aboriginal Families and Children” (1980) 5(3) Australian Child and Family Welfare 17 at 18.

104. B Butler “Aboriginal and Torres Strait Islander Children: Present and Future Services and Policy” (1993) 18 Children Australia 4 at 4. See also the Holding-Grimes Agreement referred to at para 3.27 and note 52 in this Chapter.

105. G Atkinson Report on the Joint National Review of Aboriginal And Islander Child Care Agencies [AICCAs] (Report to the Ministers for Aged, Family and Health Services and Aboriginal Affairs, January 1991) (the “Atkinson Report”).

106. In NSW in 1989/90 the Commonwealth provided 64.4% of the funding to AICCAs and the NSW provided 35.6% of the funding: Atkinson Report at 101.

108. Information provided by the Department of Health and Family Services (Cth). The Commonwealth Government in a report to the HREOC National Inquiry, referred to its commitment to funding AICCAs and the need to have a clear understanding of how funds are separated from funds provided from other sources: Australia National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families: Commonwealth Government Submission (October 1996) at 6.

109. Australia National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families: Commonwealth Government Submission (October 1996) at 5-6.

110. Through the Aboriginal and Torres Strait Islander Commission (Cth) and the Department of Health and Family Services (Cth).

113. In the Marriage of Goudge (1984) 54 ALR 514 at 526 per Evatt CJ; In the Marriage of Sanders (1976) 26 FLR 474.

114. In Jones v Darragh (1992) 15 Fam LR 757 at 762 Renaud J considered that while the Aboriginal Child Placement Principle was a matter which the Court must take into account in care and protection matters, in custody proceedings the paramount consideration is the welfare of the child.

115. Family Law Act 1975 (Cth) s 65E. The concept of “parenting orders” was introduced by the Family Law Reform Act 1995 (Cth) and replaces the concepts of guardianship, custody and access under the Act. Parenting orders encompass issues such as the person(s) with whom the child will live, contact between the child and other person(s), maintenance of a child and any other aspect of parental responsibility: Family Law Act 1975 (Cth) s 64B.

116. None of the leading family law cases in this area has dealt with the custody of a Torres Strait Islander child. However, it is assumed that similar issues of cultural background and heritage would arise.

117. In the Marriage of Goudge at 524 and 526 per Evatt CJ, at 536 per Strauss J; F v Langshaw (1983) 8 Fam LR 833 at 847, approved on appeal in Rushby v Roberts [1983] 1 NSWLR 350; N and N [1981] FLC �91-111 at 76,828-9; In the Marriage of Sanders (1976) 26 FLR 474.

120. Family Law Act 1975 (Cth) [as amended by the Family Law Reform Act 1994 (Cth)] s 68F states that in determining the Child’s best interests, the Court must consider ... “(2)(f) 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) any other characteristics of the child that the court thinks are relevant”. Note that even though the new term is the “best interests of the child”, there is no intended change in concept from that of the “welfare of the child”: Explanatory Memorandum to the Family Law Reform Bill 1994 at para 330. The relevant sections of the Family Law Reform Act 1995 (Cth) came into operation on 11 June 1996.

121. Family Law Act 1975 (Cth) s 64(1)(bb)(vi) as it was prior to the operation of the Family Law Reform Act 1995 (Cth) on 11 June 1996.

122. “It seems to me to be quite inappropriate to judge the standards of accommodation available at [an Aboriginal community] by reference to a European yardstick.” In the Marriage of McL and McL (1989) 15 Fam LR 7 at 24 per Rourke J.

123. McMillen v Larcombe [1976] NTJ 1001 at 1005-1006; In the Marriage of McL at 24.

124. In the Marriage of Sanders (1976) 26 FLR 474 at 495 per Evatt CJ and Watson J; approved in In the Marriage of R and R (1985) FLC �91-615 at 79,978 per Haese J.

125. “I make these remarks [regarding the relevance of the child’s Aboriginality] only for the purpose of making clear what seems to me to be the important issues in this case and they should not be taken as intending to lay down any principles applicable to circumstances other than the ones with which the court is now concerned.”: F v Langshaw (1983) 8 Fam LR 833 at 847-8 per Waddell J.

126. Note: “Aboriginal child” includes children of mixed Aboriginal and European parentage.

128. Article 30 of the United Nations Convention on the Rights of the Child was referred to; see para 6.11.

129. This case also held that in cases where the Aboriginality of a child is a significant issue, because of the importance of these issues in Australia and the complexity which they ordinarily involve, a separate representative should be appointed to represent the child at an early stage of the proceedings: In the Marriage of B and R (1995) 19 FamLR 594 at 626. See also NSWLRC Report 81 at paras 3.43-3.71 for a discussion on the role of special representatives.

130. F v Langshaw at 848; In the Marriage of R and R at 79,978 per Asche SJ; In the Marriage of McL at 24; In the Marriage of Goudge (1984) 54 ALR 514 at 526 per Evatt CJ; Connors v Douglas (1981) 7 Fam LR 360 at 364; Peterson v Kumar (Australia, Family Court, Full Court, No SA13/93, 14 September 1993, unreported).

134. In the Marriage of R and R at 79,979 per Asche SJ; Goudge at 526 per Evatt CJ.

136. In the Marriage of R and R at 79 975 per Haese J, and affirmed on appeal to the Full Court of the Family Court at 79,979 per Asche SJ and approved in Goudge at 526-527 per Evatt CJ.

138. Goudge at 518-9, 521 per Evatt CJ; Marriage of R and R at 79,976 per Haese J.

139. Goudge at 539-540 per Strauss J; however, this was outweighed by other needs of the children, such as the need for guidance. It was considered that these needs could be better met by the non-Aboriginal parent.

140. In the Marriage of McL (1989) 15 Fam LR 7 at 23. Custody of the two children was ultimately granted to the Aboriginal mother because it was found that the children would be exposed to an unacceptable risk of abuse if they lived with their non-Aboriginal father.

141. In the Marriage of R and R (1985) FLC �91-615 at 79,976 per Haese J and affirmed on appeal to the Full Court of the Family Court, at 79,979 per Asche SJ. The community’s hesitations about the child’s future marriage prospects in the community were also considered. See also In the Marriage of McL at 23.

143. (1983) 8 Fam LR 833. This decision was affirmed on appeal to the NSW Court of Appeal in Rushby v Roberts [1983] 1 NSWLR 350.

145. F v Langshaw at 847. See also In the Marriage of McL at 23 per Rourke J.

146. (1985) FLC �91-615 at 79,976 per Haese J and affirmed on appeal to the Full Court of the Family Court at 79,979 per Asche SJ. Haese J also considered evidence that the child, being of mixed racial parentage, may experience “positive discrimination” in the Aboriginal community in that she would be considered somewhat special in the community: at 79,976.

147. See also F v Langshaw at 840-841 and affirmed in Rushby v Roberts at 361-362; In the Marriage of Sanders (1976) 26 FLR 474 at 486 per Evatt CJ and Watson J; Goudge at 526 per Evatt CJ and 538-539 per Strauss J.

148. In McMillen v Larcombe, Forster J commented at 1005: “... the evidence satisfies me that it is likely that as he grows through puberty and beyond he is likely to regard himself as a half black child rather than half white, both of which descriptions are literally true. Why this should be I do not quite understand but the evidence satisfies me that it is so.” However, in C v T (1985) 10 Fam LR 458, McLelland J found that opinion evidence as to the outcome of placing Aboriginal children in non-Aboriginal families was not a sufficiently organised branch of specialised knowledge to make expert opinion admissible: at 463. Compare this view with the following cases in which such evidence was admitted without dispute: F v Langshaw at 845-847; Goudge at 531 per Ross-Jones J, In the Marriage of R and R at 79,977 per Haese J; Torrens v Fleming (1980) FLC 90-840 at 75,309-75,311. C v T was eventually overruled in In the Marriage of B and R (1995) 19 FamLR 594 where it was held that the Aboriginality of a child is a matter which is relevant to the welfare of the child and accordingly evidence from an appropriately qualified expert should be adduced and taken into account.

149. In the Marriage of R and R at 79,979 per Asche SJ and approved in In the Marriage of McL at 23.

150. In the Marriage of R and R at 79,977-79,978 per Haese J and affirmed by the Full Court of the Family Court at 79,979 per Asche SJ. It has been suggested that the Court is more willing to identify with a “tribal” Aboriginal society, but finds it hard to identify the same qualities in a “non-tribal” Aboriginal society: Comments by N D’Souza, Executive Officer, SNAICC (11 April 1996).

152. In one case no evidence was led relating to the different racial background of the Aboriginal mother and non-Aboriginal father. There was no evidence as to the importance of the Aboriginal children maintaining cultural links. As a result the Judge did not take this into account when determining the question of their custody: Davis v Councillor (1981) 7 Fam LR 619 at 623-624. See also Goudge at 527 per Evatt CJ; F v Langshaw at 847-848.

156. In Connors v Douglas (1981) 7 Fam LR 360 the length of time the child had spent with the foster parent was also a deciding factor; the child had spent nine years with the foster mother. There was the added consideration in this case that the foster mother was an Aboriginal woman living in an Aboriginal community. See also C v T (1985) 10 Fam LR 458.

157. Australian Law Reform Commission The Recognition of Aboriginal Customary Laws (Report 31, 1986) at para 351.

162. NSW - Aboriginal Children’s Research Project Aboriginal Children in Substitute Care (Principal Report, Part 1, July 1982) at 4.