Davis & Spring 2007 FamCA 1149
The judge quoted from a ruling by the Full Court in a 1995 case (In the marriage of B and R, FLC 92-636):
“It is not just that Aboriginal children should be encouraged to learn about their culture, and to take pride in it in the manner in which other children might be so encouraged. What this issue directs our minds to is the particular problems and difficulties confronted throughout Australian history, and at the present time, by Aboriginal Australians in mainstream Australian society. The history of Aboriginal Australians is a unique one, as is their current position in Australian life. The struggles which they face in a predominantly white culture are, too, unique. Evidence which makes reference to these types of experiences and struggles travels well beyond any broad ‘right to know one’s culture’ assertion.”
“A. In Australia a child whose ancestry is wholly or partly indigenous is treated by the dominant white society as “black”, a circumstance which carries with it widely accepted connotations of an inferior social position. Racism still remains a marked aspect of Australian society. Daily references in the media demonstrate this. Aboriginal people are often treated as inferior members of the Australian society and regularly face discriminatory conduct and behaviour as part of their daily life. This is likely to permeate their existence from the time they commence direct exposure to the outside community and continues through experiences such as commencing school, reaching adolescence, forming relationships, and seeking employment and housing.
B. The removal of an aboriginal child from his/her environment to a white environment is likely to have a devastating effect upon that child, particularly if it is coupled with a long term upbringing in that environment, and especially if it results in exclusion from contact with his/her family and culture.
C. Generally an aboriginal child is better able to cope with that discrimination from within the Aboriginal community because usually that community actively reinforces identity, self-esteem and appropriate responses. Racism is a factor which aboriginal children may confront every day. Because non-aboriginals are largely oblivious of that, they are less able to deal with it or prepare aboriginal children for it.
D. Aboriginal children often suffer acutely from an identity crisis in adolescence, especially if brought up in ignorance of or in circumstances which deny or belittle their Aboriginality. This is likely to have a significant impact upon their self esteem and self identity into adult life.”
and from another source:
“As I see it, the requirement to maintain a connection to their lifestyle, culture and traditions involves an active view of the child’s need to participate in the lifestyle, culture and traditions of the community to which they belong. This need, in my opinion, goes beyond a child being simply provided with information and knowledge about their heritage but encompasses an active experience of their lifestyle, culture and traditions. This can only come from spending time with family members and community. Through participation in the everyday lifestyle of family and community the child comes to know their place within the community, to know who they are and what their obligations are and by that means gain their identity and sense of belonging.”
The case involved a couple who met in a remote Aboriginal community then moved to a town. The mother became depressed when the relationship ended and she was distant from her community. The mother placed the child into the care of the maternal grandmother soon after the child was born. When the child was aged 3 years the mother applied for the child to live with her and to move to the remote community the mother came from.
The judge ordered that the child live with the mother and allowed the mother to relocate. Equal shared parental responsibility was granted to the mother, father and maternal grandmother (extended family).
