Parenting Matters and Aboriginal Children

The Family Law Act 1975 sets out the principles that courts must take into account when making decisions as to where children should live and who they should have contact with as well as any other matter that is to be included in Parenting Orders. The paramount consideration in all parenting matters is the best interests of the child. This is determined by balancing the children’s right to a meaningful relationship with both their parents with the child’s right to be protected from any form of harm. When the court is making parenting orders for Aboriginal children, it must consider the child’s right to engage with their culture and what sort of living and care arrangements best promote this.

The legislation

Section 60B of the Family Law Act states that Aboriginal and Torres Strait Islander children have the right to:

1. Maintain a connection with their culture; and
2. Have the support, encouragement and opportunity necessary to explore the full extent of their culture, consistent with their age and developmental level and their views; and to develop a positive appreciation of that culture.

The act also makes it clear that when the court is determining what is in an Aboriginal or Torres Strait Islander child’s best interests,  it must consider the child’s right to enjoy their culture and to share it with other people from that culture and the likely impact of any proposed order on that right (Section 60CC).

What is the effect of these principles?

In any parenting matter, the court will aim to make orders that allow the children to maintain a meaningful relationship with both their parents. Parenting Orders that do not allow for a relationship with both parents will only be made if contact with both parents is not practicable or where the risk of harm to the child means that such contact is not in the child’s best interests.

When a court is making Parenting Orders for children who have one Aboriginal parent and one non-Aboriginal parent, the children’s right to maintain a connection with their culture may mean it is desirable for them to spend time with their Aboriginal parent’s extended family in order to become familiar with that culture or to do particular activities with that side of the family.

When a court is making Parenting Orders for Aboriginal children who have two Aboriginal parents who come from different communities, it may be appropriate for the order to facilitate the children maintaining their connection to both extended families and both communities and participating in cultural events in both communities.

How are the child’s cultural needs determined?

Before a court considers making Parenting Orders, each party will have filed a detailed affidavit setting out the children’s past and present circumstances. In these affidavits, parties can outline their cultural traditions and practices along with the children’s past and present involvement in cultural activities and any cultural interests they have.

It is common for the court to order that one or more reports be prepared when dealing with a parenting matter in order to give it more insight into the family’s situation. These reports will include recommendations about what sorts of ongoing arrangements are in the children’s best interests. Where the children are Aboriginal or Torres Strait Islander, these reports are likely to include recommendations that the court order that the child spends time in a particular community or with particular members of their Aboriginal family, in order to maintain their connection with that culture.

However, the fact that a parent is Aboriginal does not necessarily mean that that they will obtain orders that are favourable to them. The court must balance the child’s right to maintain a connection with his or her culture with a range of other factors relevant to determining what is in the child’s best interests.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.