Family Law and Aboriginal Culture

At present, in the Family Court of Australia, an Aboriginal parent in dispute with a non-Aboriginal parent over parenting arrangements is entitled to have their desire to raise a child in the Aboriginal “culture” taken into account. Judges seek to weigh the claims of each party in so far as they serve the best interests of the child, including taking into consideration the culture in which a child may be raised.

Recognising Aboriginal culture in the Australian Constitution, however, would almost certainly tilt considerations to favour Aboriginal litigants in parenting cases, thus, in effect, granting Aboriginal citizens greater rights than non-Aboriginal citizens. A case from 2010, Sheldon v Weir, illustrates the extent to which Australian courts consider and accommodate Aboriginal wishes to immerse their children in “culture”. It also demonstrates how litigants might use any and all means at their disposal to seek an advantage in a court of law.

The persuasive elements of the case were that the Aboriginal father had significant problems with alcohol and violence, was verbally and emotionally abusive to the mother, and that the father’s family had suffered domestic violence and the father’s father sexually abused his daughter. Nevertheless, the judge was bound to consider the father’s desire to immerse his child in Aboriginal culture.

That the Australian people would knowingly change the Constitution to tip the law in parenting cases towards one that may give more weight to Aboriginal culture defies belief. And yet, at present, there is a consensus of the main political parties to do just that.

A major part of Sheldon v Weir centred on the daughter’s immersion in the culture of a parent. The difficulty for the judge was that the Aboriginal father was not the only contender in the culture war. The mother was an Irish Roman Catholic and wished to return to Ireland with the child.

The judge noted that, for example, “culturally the child shares the mother’s Irish background” and that the mother was keen that the child develop a good understanding of, among other things, “Irish dance, language and music, history and story telling”. The father’s contention was that it would be easier for the child to come into contact with this aspect of her and the mother’s heritage in Australia, than it would be for her to come into contact with his Aboriginal heritage in Ireland.

The judge found that, irrespective of whether the child lived in Australia or in Ireland, the mother would have the capacity and opportunity to ensure the child had a sound understanding and involvement in Irish heritage. In other words, the Irish culture, which has found a place in many countries, lost out to one that has found a place in no country other than Australia. Round one to the father.

An intriguing element of the case was the attempt by the father to introduce “expert evidence” in relation to Aboriginal culture, including kinship, heritage and child-rearing practices. Counsel for the father submitted that the court must receive anthropological or expert evidence in relation to Aboriginal culture in cases where the subject child is Aboriginal. The judge did not accept the submission because the full court had earlier decided that “it is now generally accepted in Australia that Aboriginal peoples can speak for themselves particularly in relation to their own culture and traditions”. The point being that, just as the mother and her parents were able to speak about Irish culture, so could the father and members of his family speak about Aboriginal culture. Round two to the mother.

Children, the subject of proceedings in the Family Court of Australia, have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture. In order to play the culture card, the father had to assert and prove that the child was Aboriginal. To do so, however, he had to prove that he was Aboriginal. The mother did not concede these assertions and so the court had to decide the matter.

Proof of descent is essential before a child can come within the category of a person defined as an “Aboriginal child”. The judge suggested that a substantial degree of Aboriginal descent would, by itself, be enough to require a child to be regarded as an “Aboriginal child”. The judge noted that the Act recognises that people may come from mixed cultural or racial backgrounds, which includes children with “limited Aboriginal genetic heritage and a predominant non-Aboriginal genetic heritage”. For these people, self-identification and community acceptance would be required to define them as Aboriginal.

The judge argued that “where the child is too young or lacks the maturity to have considered identity” the court would look to the lifestyle and identity “marked out by his or her parents”, including the extent to which they and the community identify them and their children.

The proof of such was intriguing. The father did not call his mother or his father to give evidence despite the fact that both were available. Indeed, the judge remarked, “sadly, it is necessary to record … that within his family, particularly from his father (the child’s paternal grandfather), the father has been the victim of racial taunts based on his self-identification as Aboriginal”.

The explanation for this state rests in the facts of the father’s upbringing. Until the father was about nineteen, he, his parents, their extended families and siblings were identified, and self-identified, as Anglo-Australians. None of his relations was identified by the community as Aboriginal or claimed to be Aboriginal.

When the father was about nineteen, his paternal grandmother told him she was Aboriginal. She also told him that the man he knew as his paternal grandfather was not. She told him she had had a casual relationship with a married Aboriginal man from Newcastle. Their relationship ended before the child was born and she reared the child without him. Shortly before the child’s third birthday, the grandmother married a non-Aboriginal man.

The revelation “commenced a process of self-discovery on the part of the father” and he began to identify as Aboriginal. The father said:

I have developed my cultural understanding of my own identity and worldview by actively identifying with and engaging in the Aboriginal community, and I have helped my brothers and sisters [Aboriginal people] along their own journey of self-discovery and personal awareness.

One brother and his paternal grandmother are the only people in the father’s immediate family who identify as Aboriginal. His father, mother and other siblings do not. He said:

In my role at [the] University I effectively taught the units that education students must undertake to be accredited to teach Aboriginal studies in schools. Here I shared an academic understanding of culture, how that applies to Aboriginal people, and a historical and contemporary understanding of Aboriginal identity.

He is a member of a number of indigenous consultative groups.

The mother’s observations during the marriage, however, were that “whilst I believe [the father] may identify to a degree as an Aboriginal person, I have never witnessed anything that suggests to me that he adheres to or practices anything inside that culture outside of his employment”.

The judge found that, because he has little contact with the brother who does identify as Aboriginal, “the father’s journey has been lonely and has not included the passing down to him of family oral histories”. He has little knowledge of his ancestry and is unfamiliar with much of his paternal lineage. “The father’s academic learning and teaching … [have] given him access to modern and traditional indigenous values and culture.” The judge found that “where he particularly connects with his indigenous heritage is in his work place and previously through his involvement with Land Council activities”.

The 2006 amendments to the Family Law Act introduced a specific right of the child “to explore the full extent of her Aboriginal culture, to have the support, opportunity and encouragement necessary to do so and, inter alia, to develop a positive appreciation of that culture”. This is more extensive than merely being provided with information and knowledge and encompasses “an active experience of the lifestyle, culture and traditions” of Aboriginal people. In this way the child is imbued with a sense of being Aboriginal, of kinship bonds and community.

It follows that although the father’s parents do not identify as Aboriginal, through the child’s relationship with the father she would be able to establish her “Aboriginal sense of self” and kinship ties characteristic of Aboriginal life. The judge said:

merely because during the short period the parties lived together the father did not spend time with Aboriginal people or obviously engage with their culture, this is not indicative of the extent to which he identifies as Aboriginal. Nor does it indicate he would not support and encourage the child to explore the full extent [of] her Aboriginal heritage.

The judge decided that, “on balance, I am satisfied the child is Aboriginal”, and then went on, “so that it is clear, I am also satisfied the child is Irish”. This may be characterised as either, “every child gets a prize” jurisprudence, or reasonable accommodation of two claims. The father’s claim, however, was not based on “an active experience of lifestyle, culture and traditions”, as is the intention. Rather, it was his choice to learn about these traditions and have them pass to his child. There was nothing in the evidence to suggest that the father lived differently from anyone else. Indeed, what traditions were apparent were those of a man who sought out the company of others at clubs and pubs and all too often indulged in violence.

The judge may also have commented that the child was Australian, born in Australia to one Australian and one Irish parent. The father’s claim to be an Aborigine and his recent discovery of his Aboriginal heritage and his vicarious experience of Aboriginal culture, nowhere specified in the judgment, does not foreclose Australian heritage. The judge was bound to canvass matters of culture, but it appears that there was no Australian heritage considered for an Australian child of an Australian parent in an Australian court of law.

A significant problem for the Family Court in this “checklist” approach to considering the cultural immersion of the child is that were the judge to further inquire as to what each culture entailed, judgments would have to be made about whether particular practices were adverse to the best interests of the child. The checklist is a somewhat naive approach, but one can sympathise with the judge who has to referee battles in the culture wars.

The Aboriginal father was not satisfied that his heritage had been given sufficient weight in initial proceedings and appealed the matter to the full court of the Family Court. He asserted that the trial judge had “possibly” been prejudiced against him and that the trial judge lacked appreciation of, or respect for, Aboriginal culture and lacked empathy for Aboriginal cultural issues, and that the trial judge erred in making findings of facts related to an Aboriginal child’s participation in, and connection to, their culture from outside of the Aboriginal community.

On the question of bias, the grounds were that the trial judge had asked:

“Does [Mr Sheldon] have as part of his DNA I suppose a link to his Australian indigenous origins?”

It having been conceded by Counsel for the respondent that the appellant did, her Honour asked:

“I mean, it is plain that [Mr Sheldon] is notably fair, so presumably he has DNA connection into non-indigenous origins as well?”

“Yes.”

 The appellant also asserted that the trial judge’s interest in photographs of the appellant’s grandmother was in order to “establish the possibility of a visual confirmation of Aboriginality through the appearance of the … grandmother and her siblings”. The appellant asserted that this, and other questions asked by the trial judge with respect to the appearance of his relatives, indicated that the trial judge had “sought to establish someone’s cultural identity by the colour of their skin”, which, he said, “shows at least a lack of empathy for all of the challenges Aboriginal people face in identifying with Aboriginal culture, in the history of dispossession based on the colour of your skin”. The appellant asserted that the trial judge had also thereby demonstrated “a lack of appreciation and empathy … in relation to Aboriginal cultural issues”. The father’s appeal was dismissed.

Noel Pearson, in A Rightful Place (Quarterly Essay 55, 2014), argued that public discussion should “move beyond” race and concentrate on culture for the purpose of constitutional recognition. He may have done so because at present the test of Aboriginality requires some blood ties. Pearson is perhaps sensitive to just how weak is the link for many Aborigines and, no doubt, wants to shift attention to other ways in which Aborigines can build a case to be different, and therefore be treated differently, from other Australians.

The Pearson strategy may be to dispense with such a crude measure of Aboriginality as blood and move to more ethereal and less provable grounds such as culture. The judges in Sheldon v Weir spent considerable time on the matter, proving that Australian law not only recognises Aborigines, but also stretches the limits of credulity in so doing.

The judges applied the law, but questions remain about the point of the exercise. Now that the law requires recognition of the rights of the child to be brought up in an Aboriginal culture, many cases before the Family Court have escalated into cases about the rights of any child to be brought up in the culture of any parent. Methinks there is a strong incentive before the courts for much rediscovering of cultural roots and exaggeration of the place of “culture” in a child’s life.

As my colleague Kerryn Pholi has argued, following a successful referendum parents might well counsel their children not to marry an Aborigine. Perhaps, in future, pre-nuptial agreements will incorporate a description of the cultural rights of children and a description of the expected “lifestyle, culture and traditions” to be endured by the child. Constitutional recognition would intensify the culture war and bias results in favour of the parent with a claim to Aboriginal ancestry. The Irish and anyone else will not be pleased. Constitutional recognition would provide an incentive to blarney.