Hurst & Gersten 2014 FamCA 117

Following the death of the mother in a car accident, the father and maternal grandmother disputed who a child aged 8 years should live with.  The child had Aboriginal heritage arising from the maternal grandfather.

The judge made two points about evidence related to the child’s Aboriginal heritage.  First, the Aboriginal heritage arose from the maternal grandfather, but the maternal grandmother no longer enjoyed a good relationship with the grandfather. Secondly, it appeared that the fact of aboriginality either had only recently come to the knowledge of the maternal grandfather’s family, or it did not appear that any Aboriginal culture was actively engaged in by the immediate family of the maternal grandfather.

The judge found that the child needs to be aware of her Aboriginal heritage, and needs to have that knowledge presented as a positive feature of her identity.  Both sides of the family were able to provide the child with positive knowledge about her Aboriginal heritage.

The issue of aboriginality did not weigh in favour of either party.