Donnell & Dovey 2010 FamCAFC 15

A child was aged 8 years when the case was heard.  The mother was Aboriginal and the father was Torres Strait islander.  The parents separated when the child was aged 7 months and the father returned to the Torrens Strait.  The mother had died in a car accident when the boy was aged 6 years and the boy’s adult sister then cared for him until the father applied for custody.  The father had limited involvement (contact limited involvement) with the boy in part because he lived far away.   A judge had ordered that the boy live with his father.  The sister appealed on the grounds that the decision was contrary to the weight of the evidence presented.

The Appeal Court noted that parenting responsibility can be awarded by an order to non-parents as the paramount consideration is the best interests of the child.

The appeal court quoted from a published article by Steven Ralph entitled “The Best Interest of the Aboriginal Child in Family Law Proceedings (1998, 12,2 Australian Journal of Family Law.)

“Family assessment as employed generally by counsellors is steeped in the traditions of western psychology, with its emphasis upon the individual, and based upon modern Anglo-European notions of social and family organisation. The prominence of psychological theory and clinical practice based upon the study of small family groups and individual needs runs counter, however, to an effective understanding of the collectivist nature of Aboriginal family life. Of particular concern is the possibility that counsellors who have limited knowledge or experience in working with Aboriginal families may produce reports that do not adequately address the issue of the child’s cultural identity and consequently the report may fail to attend to vital cultural issues affecting the child’s best interests.    …  Aboriginal people are likely to argue that children have the ability to effectively attach themselves to many carers in the course of their “growing up”. In many indigenous cultures multiple serial attachments are the norm and are not regarded as necessarily harmful to the child’s development and long-term adjustment” (attachments multiple).  In a collectivist view of family the responsibility for bringing up children is invested in many people.

The Appeal Court found that the assessor had failed to take into account in any way the fact that the child was an Aboriginal child.

The Appeal Court found that insufficient regard was paid to the heritage of that part of the boy’s family with whom he had lived his entire life.

The Appeal Court accepted the appeal and ordered a re-trial.