Buti, Tony --- "Court Decides Child to Stay with Indigenous Mother: In the Marriage of B and R" [1996] AboriginalLawB 83; (1996) 3(86) Aboriginal Law Bulletin 12

• Court Decides Child To Stay With Indigenous Mother: In The Marriage Of B And R1
• The Decision
• Comment

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Court Decides Child to Stay with Indigenous Mother:
In the Marriage of B and R[1]

In the Marriage of B and R

Family Court of Australia

Fogarty, Kay and O’Ryan JJ

Reported

27 September 1995

[1995] FamCA 104; (1995) 19 Fam LR 594

Casenote by Tony Buti

The parties had commenced a relationship in 1989 and had a child in December 1992. The mother was Aboriginal and the father was a white Australian. Since December 1993 the child had resided with the father. At that time the mother entered a drug and alcohol rehabilitation unit. The mother applied for custody. The trial judge refused to accept evidence which outlined emotional and social trauma experienced by Aboriginal children when raised in non-Aboriginal environments. The trial judge indicated that consideration of factors arising from the child's Aboriginality were no different than for any other culture or ethnic background. The trial judge also rejected questions from a separate representative in cross examination of the mother. Custody of the child remained with the father and the mother appealed.

The decision

Their Honours noted that the 'history of Aboriginal Australians is a unique one, as is their current position in Australian life. The struggles they face in a predominantly white culture are, too, unique' (p602).

Their Honours, in discussing the harmful effects resulting from the removal of Aboriginal children from their families to be brought up in non-Aboriginal environments, applied to such conduct Deane and Gaudron JJ's 'unutterable shame' passage from Mabo v Queensland (No. 2) ((1992) [1992] HCA 23; 175 CLR 1 at 104). Their Honours stated that:

'Dean and Gaudron JJ spoke of the dispossession of Aboriginals from their land as "a conflagration of oppression and conflict which was, over the (19th) Century, to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame" (at ... 104); and that it represented "the darkest aspect of the history of this nation" (at ... 109). There can, in our view, be little doubt that on a more directly personal level the policy of Colonial, and later State, administrations in Australia to systematically remove Aboriginal children from their parents and place them in institutions ... and the consequences of that can be described in equally strong terms' (p602).

Their Honours remarked that the systematic policy:

'of removing Aboriginal and especially part Aboriginal children, usually of tender years, from their parents and placing them in institutions or in other white care ... left many Aboriginals in childhood, adolescence and adulthood adrift in a white society which treated them as inferior and in which they lost fundamental connections with family and culture' (p602).

It was acknowledged by the Court that the removal policies and practices were driven by the process of assimilation and in 'furtherance of the belief that the indigenous [sic] people of this country would die out and their young children would be better served by occupying (lowly) places in a dominant white society' (p602).

Their Honours identified four constant themes which are raised in the considerable body of literature on Aboriginal history and welfare issues. First, Aboriginal people from the time they are children are subjected to discriminatory conduct and behaviour which permeates their existence. Second, the removal of Aboriginal children from their environment to a white environment is 'likely to have a devastating effect upon the removed children, especially if they are excluded from contact with family and culture. Third, generally Aboriginal children are better able to cope with racism by remaining within their Aboriginal communities, because 'usually that community actively reinforces identity, self-esteem and appropriate responses' (p605). Lastly, Aboriginal children often suffer an identity crisis in adolescence, especially if they have been denied their Aboriginality. This may lead to self-esteem and self-identity problems in adulthood (p605).

Comment

The Court went on to examine Australian and overseas cases which dealt with similar issues as those raised in this case, the concepts of discriminatory or preferential treatment, and the appointment and role of separate representatives. The Court held that the trial judge had erred in not allowing evidence in relation to the emotional and social trauma experienced by Aboriginal children when raised in a non-Aboriginal environment, and had misunderstood the significance of the role of the separate representative. The Court set aside the trial judge's orders and remitted the issues of custody and access for a re-hearing.

This case is notable for the clear and concise pronouncements by an arm of the judiciary that constantly deals with family break-ups on the devastating effects of placing Aboriginal children in non-Aboriginal environments. Their Honours left no doubt as to their opinion in this area. Also of particular note is their Honours' recognition that the previous practice by governments of systematically removing Aboriginal children from the families and culture has devastated Aboriginal people and deformed the face of the nation. It is a history that permeates the struggles of Aboriginal people in today's society. Their Honours' views are very pertinent to the present debate on the effects of the removal policies and practices of governments, the usefulness of the National Inquiry Into the Separation of Aboriginal and Torres Strait Islander Children from their Families currently being conducted by the Human Rights and Equal Opportunity Commission, and the awarding of compensation to those removed from family and culture.

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[1] This casenote focuses only on part of the case report, that dealing with the history of Aboriginal Australians and the removal of Aboriginal children from their families and culture.