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 61F of the Family Law Act states in cases with Aboriginal and Torres Strait Islander children, the court must have regard to any kinship obligations and child rearing practices. This is important as Aboriginal and Torres Strait Islander care giving systems differ from narrow Anglo-Australian nuclear family assumptions, and may involve grandparents, aunties/uncles, and extended kin seeking the share of parental responsibility of children.
Recent amendments to the Family Law Act have expanded the definition of a “relative” of a child, whereby relative is considered, for an Aboriginal child or Torres Strait Islander child, a person who, in accordance with the child‘s Aboriginal or Torres Strait Islander culture (including but not limited to any kinship systems of that culture), is related to the child.
This means that if a child is related to an interested person under the child’s cultural kinship system, even if not biologically related in the Western legal sense, such relationship will fall within the definition under the act.
Section 60CC(3) also lists additional considerations of the Court when determining the best interests of Aboriginal and Torres Strait Islander children, namely, that the Court must consider:
- the child‘s right to enjoy the child‘s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary.
- to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
- to explore the full extent of that culture, consistent with the child‘s age and developmental level and the child‘s views; and
- to develop a positive appreciation of that culture.
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.
