7 Children and Family Law

Custody — Aboriginal culture and identity — Best interests of an Aboriginal and Torres Strait Islander child — Separate representative — Role at trial — Expert evidence — Expert area — Whether a ‘recognised field of expertise’ or a ‘sufficiently organised branch of specialised knowledge’.

This case recognised that an Aboriginal and Torres Strait Islander child’s connection to their culture is an important consideration when determining custody rights. It was asserted that judges should educate themselves about Aboriginal and Torres Strait Islander culture in order to appropriately deal with custody issues. The Court also advised that an appropriately qualified expert should assist the judge when determining these issues.

The trial judge ordered that a child aged 2.5 years be placed in the care of her non-Indigenous father, and that her Aboriginal mother be given access to her. During the trial, the separate representative (now the independent children’s lawyer) sought to adduce evidence which related to the placement of Aboriginal and Torres Strait Islander children with non-Indigenous families and, in particular, the difficulties which were commonly encountered by these children, and the damage to identity and self-esteem which they suffered.

The trial judge refused to accept this material into evidence. On appeal to the Full Court of the Family Court of Australia, the two major grounds of appeal were:

Fogarty, Kay and O’Ryan JJ allowed the appeal and ordered a retrial. The Full Court found that the trial judge failed to appreciate the importance of Aboriginal and Torres Strait Islander children having a connection to their culture, which goes ‘well beyond any broad “right to know one’s culture” assertion’.⁷⁰

Further comments were made regarding what is expected of judges in cases involving the custody of an Aboriginal and Torres Strait Islander child. In particular, the Court noted that such issues should not be decided on the basis of general or personal views of the judge in question — rather, a trial judge must inform themselves of ‘readily accessible public information’ on the topic, and an ‘appropriately qualified expert’ should be appointed to assist in the determining of such issues.⁷¹

Lastly, the Full Court found that the trial judge wrongly limited the role of the separate representative, who should have been allowed to adduce evidence of the nature sought, and that it is part of the role of the separate representative (and now the independent children’s lawyer) to gather and place all relevant evidence before the court.

At 602 (Fogarty, Kay and O’Ryan JJ):

At 604–5 (Fogarty, Kay and O’Ryan JJ):

At 624:

Family law — Best interests of child — Child of Tiwi Island heritage residing with non-Tiwi Indigenous carer — Whether child’s cultural and heritage needs could be adequately met — Importance of appreciating cultural differences among Indigenous peoples — Approach to s 68F(2)(f) of the Family Law Act 1975 (Cth) (‘FLA’) — Observations on the difficulties in applying the FLA to Indigenous kinship systems.

This case recognised the importance of taking into account the distinctiveness of different Indigenous groups when determining the custody of an Indigenous child. It highlighted the value that kinship networks provide to Indigenous children, affirming the obligation of judges to develop their understanding of Aboriginal culture and recognise the importance of ongoing connection of an Indigenous child to their unique Indigenous group and family.

In accordance with court orders, the child, C, was in the care of the respondent, FOB, who lived in Darwin, where she brought the child to live with her from the Tiwi Islands. FOB was of Thursday Islander heritage. AP, the appellant and biological mother of C, sought orders that C be returned to the custody of his extended maternal and paternal family at Bathurst and Melville Islands. AP did not seek sole parental responsibility for C, but rather, that the care of C would be undertaken by certain family members who would, in the Tiwi way, be C’s mothers also.

The trial judge in Darwin had ordered the child to reside with FOB who would be responsible for his day-to-day care, welfare and development. The child could have contact with AP for specified select dates through the year including certain weekends and holidays. AP appealed the decision in the Full Court of the Family Court on the basis that the trial judge approached his decision with an inadequate understanding about

Nicholson CJ, Ellis and Moore JJ allowed the appeal and remitted the matter for rehearing. In particular, they found that the trial judge had erroneously

They then observed, by way of concluding their reasons, that ‘this case has highlighted difficulties in the applicability of the Family Law Act to cultural systems of family care which, like the Tiwi way, contemplate circumstances where the child will live and be cared for within a kin network’.⁷⁴

As noted in Donnell v Dovey,⁷⁵ Re CP also contains expert evidence of Tiwi culture that may be received into evidence in other proceedings, pursuant to s 69ZX(3) of the FLA.

At 502 (Nicholson CJ, Ellis and Moore J, quoting evidence of the expert witness Dr M):

At 503 (Nicholson CJ, Ellis and Moore J):

Aboriginal culture and identity — Best interests of an Aboriginal and Torres Strait Islander child — Child and parenting orders — Relocation.

These proceedings concerned final parenting orders. The child, E, was born in October 2004 of a short relationship between an Aboriginal and Torres Strait Islander mother and Anglo-Australian father who separated shortly prior to her birth. From approximately seven days after her birth, E lived with her paternal grandmother in the Latrobe Valley, with whom the father now also resides. At this time, the mother returned on various occasions to Central Australia to participate in ceremonies and cultural rites, leaving the child in the care of the paternal grandmother. The paternal grandmother sought orders, among other things:

The mother opposed this application, and sought, among other things, sole parental responsibility of the child, and permission to relocate with the child to the Pitjantjara lands of South Australia.

The paternal grandmother, mother and father were awarded equal shared parental responsibility for E, with the child to be permitted to relocate with the mother.

At the outset of the case, Young J provided to all counsel copies of relevant decisions and materials relating to the determination of the best interests of an Aboriginal and Torres Strait Islander child. He further set out a comprehensive restatement of provisions and relevant authorities in the Family Law Act 1975 (Cth) (‘FLA’) specifically relating to Indigenous culture and parenting proceedings.⁷⁶

In considering the best interests of the child, Young J found that she was safe, secure and well cared for by the paternal grandmother, and that no criticism could be made of the level of care, love and attention given to her by the grandmother. However, she had no meaningful exposure to the language, culture or traditions of the mother’s family or history, save for interaction with the mother on her visits to the Latrobe Valley.

Young J also found that, while the paternal grandmother made a very real effort to involve E in the local Koori Aboriginal culture and activities, ‘the stark reality in this case will be that if she is raised in Gippsland she will predominantly learn and speak English and perhaps to some extent the local Koorie language, but have no exposure to the culture or family of her mother’.⁷⁷ Accordingly, the child will only obtain a limited benefit and enjoyment from that local Koori culture.⁷⁸ His Honour made specific reference to ss 60B(2)(e) and 60CC(3)(h) of the FLA, finding that the child’s right to enjoy her culture is to enjoy her ‘correct aboriginal culture with other people(s) who share that same culture’.⁷⁹

The paternal grandmother made a strong criticism of the mother, asserting that she had ‘abandoned’ the child by leaving her primarily in the care of the grandmother.⁸⁰ This criticism was rejected by Young J, who found that the mother had her two other children to be with, and a number of culturally very important ‘women’s business’ and ‘family rituals’ to attend. His Honour declined to make any finding that the mother had previously abandoned the child, noting that ‘the importance to the mother of participating in ceremonies and cultural rites and the call of her homelands were such as to effectively, by her mindset, require her to leave the child with the paternal grandmother’.⁸¹

Young J concluded that, having regard to all the evidence, it is not likely to be in the child’s best interests to live with the paternal grandmother and father in the Latrobe Valley in the long term.⁸² While the paternal grandmother has an established, loving and good relationship with the child, his Honour found that her capacity to provide for the ongoing future emotional, cultural and intellectual needs of the child is a matter of real concern. With respect to the father, his Honour found that he ‘simply does not have and will not gain any realistic understanding of [the] importance to the mother or to the child [of matters of Aboriginal culture and kinship]’.⁸³

Young J assessed the mother as having a significant capacity to properly provide for the child, including E’s emotional, cultural and intellectual needs,⁸⁴ noting that the mother’s involvement with ‘women’s business’ was of fundamental importance to the mother, and that her intention was to educate and involve her children in all aspects of their history and culture, including the learning about and indoctrination into women’s matters.⁸⁵

Child and parenting orders — Best interests of an Aboriginal and Torres Strait Islander child — Absence of anthropological evidence — Where the parties did not seek to place anthropological evidence before the Federal Magistrate — Whether the Federal Magistrate should have adjourned proceedings until further evidence was available.

The Full Court considered that in cases where there is a lack of anthropological evidence, a judicial officer may choose to adjourn or proceed with the hearing. However, in obiter, it was expressed that a judicial officer may receive into evidence transcripts of expert evidence from other decisions under s 69ZX(3) of the Family Law Act 1975 (Cth) (‘FLA’) where there are similar circumstances.

The child is eight years old and the son of an Aboriginal (Wakka Wakka) mother and Torres Strait Islander father. The child lived with his mother after his parents seperated. However, the mother died in a car accident in 2007, and the child lived with his elder half-sister and her husband thereafter. During this time, he experienced limited contact with his father. Both the father and the elder half-sister sought an order that the child live with them.

At trial, the Federal Magistrate ruled that the child live with the father. The sister appealed this decision. Central to the appeal was the approach taken by the Federal Magistrate to the ‘best interests’ of the child, and whether it was appropriate that he accepted the single expert’s evidence, in circumstances where:

It was also queried whether the Federal Magistrate had erred in not adjourning the proceedings in circumstances where there was an absence of anthropological evidence available in relation to the cultural issues in the case.

Warnick, Thackray and O’Ryan JJ held that the appeal be allowed and the matter be remitted for rehearing.

Regarding the lack of anthropological evidence, the Full Court considered that, in such circumstances, a judicial officer may choose to adjourn the hearing, or proceed on the basis of the evidence before them, noting that a rigid interpretation of s 61F of the FLA would be unrealistic given the evidentiary issues that commonly arise in such matters.⁸⁶ On this basis, the Full Court found that it was open to the Federal Magistrate to proceed on the basis of the evidence available to him.

The Full Court also suggested, in obiter, that one way to overcome evidentiary difficulties in these cases would be by having reference to s 69ZX(3) of the FLA, which enables the court to receive into evidence transcripts of other decisions where relevant.⁸⁷ Re CP was mentioned as being of particular relevance in Donnell, given that expert evidence was led in Re CP regarding Tiwi culture, in similar circumstances.⁸⁸

The Full Court made comments regarding the cultural differences between Aboriginal and Torres Strait Islander families and non-Aboriginal and Torres Strait Islander families, noting that a judge should

Further comments were made regarding the expectations for judicial officers when dealing with the best interests of Aboriginal and Torres Strait Islander children, including:

At [186]–[189] (Warnick, Thackray and O’Ryan JJ):

At [321]–[324]:

Aboriginal culture and identity — Family law — Parenting proceedings — Best interests of an Aboriginal and Torres Strait Islander child — Aboriginal mother’s appeal against refusal of application to have sole parental responsibility for her children — Value of anthropological evidence with respect to matters of Aboriginal identity and culture — Meaning of ‘appropriately qualified expert’.

The Full Court held that an Aboriginal Elder is considered to be an ‘appropriately qualified expert’ in family law proceedings with respect to anthropological evidence which concerns Aboriginal culture and identity.

The two children, M and V, were born to the appellant mother, who strongly identifies as a Tiwi woman, and the second respondent, their father, who is of European ethnicity. The mother’s parents are of Tiwi heritage, with the maternal grandmother being a Tiwi Elder who was part of the Stolen Generations.

The relationship between the mother and father was a turbulent one, which resulted in the Northern Territory police intervening on a number of occasions. The children entered the care of their paternal grandmother during Easter 2006. On Christmas Day in 2007, the mother attended the paternal grandmother’s home unannounced, requesting to spend time with the children. She did not return the children on this occasion. In January 2008, M returned to her paternal grandmother’s care, while V remained in the care of the mother.

In February 2008, the paternal grandmother commenced parenting proceedings, which resulted in the Federal Magistrate ordering that M and V live primarily with the paternal grandmother. The mother appealed against the Federal Magistrate’s decision to refuse her sole parental responsibility of the two children.

The mother asserted that the learned Federal Magistrate:

The appeal was dismissed, and the Federal Magistrate’s decision was upheld on all grounds. Coleman and O’Ryan JJ clarified the comments of the Full Court in B v R and the Separate Representative regarding the requirement of evidence from an ‘appropriately qualified expert’, noting that, in the present case, the maternal grandmother, a Tiwi Elder, was an ‘appropriately qualified expert’.⁹¹ Their Honours also made valuable comments regarding the value of anthropological evidence, noting that an Elder could be considered to be an ‘appropriately qualified expert’ in such proceedings.⁹²

At [102] and [104] (Coleman, O’Ryan and Strickland JJ):

At [120]–[121]:

Aboriginal culture and identity — Child and parenting orders — Best interests of an Aboriginal and Torres Strait Islander child — Family violence — Evidential issues — Mother and father of different Indigenous cultures and communities.

The Family Court recognised that an Aboriginal child will still be connected to their Aboriginal culture if they are placed in the mother’s care in an Indigenous urban community rather than the father’s more remote Indigenous community. The mother’s indication of the father’s violent conduct and drug abuse was also considered in assessing this, and the matter was remitted to the trial court to gather more evidence for a retrial.

Both parents were of Aboriginal and Torres Strait Islander heritage; however, they were from different cultures and communities. The father was from a remote community in the north-east region of the Northern Territory, while the mother was from a fringe dweller community on the outskirts of a town south of Darwin. These communities were over 280 km apart and, for lengthy periods during the wet season, the father’s remote town would be inaccessible other than by air.

The mother appealed final parenting orders made by the Federal Magistrate. The Federal Magistrate had placed weight on a number of findings that were the subject of challenge by the mother on appeal.

Firstly, the Magistrate found that ‘it did not seem particularly useful for the court to focus on the individual failings of the parties concerned’,⁹³ despite the mother making serious allegations regarding the father’s drug and substance use, and violent conduct towards her.

Secondly, he placed emphasis on the nature of the Aboriginal and Torres Strait Islander communities from which the father and mother came, and compared and contrasted their approach to the ‘collective’ upbringing of the children, despite it being the mother’s case that she was the primary carer of the children, and had an unchallenged capacity to care for the children.

His Honour ordered that the children live with the father, on the basis that considerations of his culture and kinship were likely to be central to the sense of identity of the children. The mother appealed against parenting orders that both children live with the father.

Kay J and Strickland J allowed the appeal, with Warnick J dissenting.

Kay J found that findings made by the Federal Magistrate regarding collective caring by the mother and the inadequate emphasis on the risk to the children posed by the father’s history of violence and alcohol consumption were unsupported on the evidence before the Court.⁹⁴ Further, issues of the mother being the children’s primary carer and her unchallenged capacity to care for the children were overlooked in favour of the ‘theory’ that it would be in the children’s best interests to be fully immersed in their father’s culture living in a remote community, rather than being brought up as fringe dwellers in an urban community.

Similarly, Strickland J found there was no evidence that the mother’s family had responsibility for caring for the children in a ‘collectivist manner’; rather, she had primary care of the children. On this basis, it was not open to the Federal Magistrate to make a finding of the same.

At [142] (Strickland J):

At [43]–[44] (Kay, Warnick and Strickland JJ):

Aboriginal culture and identity — Parenting orders — Best interests of an Aboriginal and Torres Strait Islander child — Absence of anthropological evidence — Whether proceedings should be adjourned to allow such evidence to be obtained — Parenting orders that can be made in relation to ‘non-parents’.

An Aboriginal and Torres Strait Islander grandmother was chosen to have custody of the child in preference over the non-Indigenous aunt as this was found to best support the child’s Aboriginal and Torres Strait Islander culture. The principle in Donnell v Dovey⁹⁵ was affirmed — namely, that in cases where there is a lack of anthropological evidence, a judicial officer may choose not to adjourn the proceeding and may make a decision with the evidence available on Aboriginal culture.

The child, J, is of Aboriginal and Torres Strait Islander heritage. His mother suffered from various drug and alcohol issues and, as a result, he was placed into the primary care of his great aunt, who he has lived with almost all of his life. His maternal grandmother is the primary carer of his two siblings, A and S. Competing applications were made by the mother, the aunt and the maternal grandmother for the care of J.

This was a first instance decision in the Family Court for final parenting orders. Concerns were raised during the course of proceedings regarding the risk of harm to J if he was placed in his mother’s care, due to the mother’s partner’s history of family violence. Further, a cultural divide existed in this case between the aunt, who strongly identifies as of the Pentecostal faith, and the mother and grandmother, who strongly identify with their Aboriginal and Torres Strait Islander culture and heritage. All parties were self-represented, and no anthropological evidence of Aboriginal and Torres Strait Islander culture and heritage was put before the Court.

Murphy J awarded the grandmother sole parental responsibility and care of J, noting that she was the most likely person to facilitate his Aboriginal and Torres Strait Islander culture and identity, as well as his relationships with his other family members. His Honour, further, observed the lack of anthropological evidence in the present proceedings, and cited Donnell v Dovey noting that a trial judge may elect to ‘do the best he could with the evidence available’ in the circumstances.

Aboriginal children and child protection — Permanency planning — Aboriginal and Torres Strait Islander child placement principles (application of) — Guardianship orders — Interpretation of s 78A(4) of the Children and Young Persons (Care and Protection Act) 1998 (NSW).

While all of the circumstances in s 78(4) of the Children and Young Persons (Care and Protection Act) 1998 (NSW) (‘Care Act’) must be satisfied to make a permanent placement order, it was held that a court is not compelled to place an Aboriginal child with non-Aboriginal persons through a sole parental responsibility order just because the circumstances in s 78(4) are satisfied. The court retains an overriding discretion to determine a permanency plan by considering the principles of the Act including ensuring the safety, welfare and wellbeing of the child and supporting an Aboriginal child’s right to connection with their culture.

In June 2011, Ingrid was removed from the care of her parents. Her father is Aboriginal, and she is identified as Aboriginal. In July 2012, the Children’s Court made interim orders that parental responsibility be allocated to the Minister, and that parental responsibility in respect of her residency be allocated to the short-term carers with whom she resides.

The Director-General sought final permanent placement orders and sole responsibility for the child to be vested in the Minister, with the child to reside with Ms PD. This was disputed by the short-term carers, who sought permanent placement of the child with them and sole responsibility for the child. Neither Ms PD nor the short-term carers are Aboriginal.

Following the Children’s Court initial finding that the parental responsibility of the child be allocated to the Minister on an interim basis, final parenting orders were sought by the Director-General for the permanent removal of the child and placement in long-term out-of-home care. The preliminary issue in this case concerns the interpretation of s 78A(4) of the Care Act. The subsection considers the circumstances under which a sole parental responsibility order may be made in respect of the short-term carers, as is sought by them.

The subsection reads:

The issue for determination was whether the words ‘such an order should be made only’ are obligatory, so that, before the order sought by the short-term carers can be made, the court must be satisfied that the matters set out in paras (a)–(e) of s 78A(4) have been made out.

The Director-General contended that s 78A(4) is obligatory in the manner described. The short-term carers contended that the circumstances set out in s 78A(4) merely indicate ‘advisability’ and do ‘not go so far as to create a requirement or an obligation’.⁹⁷ They further relied on the paramountcy principle (that the best interests of the child be paramount) as support for their position.

Johnstone P considered the relevant legal framework, including the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles. His Honour ultimately found that s 78A(4) are requirements that the court must observe, and that no sole parental responsibility order could be made in favour of the short-term carers, unless and until those circumstances were established. His Honour observed at [49]–[53]:

At [50]–[53] (Johnstone P):

Care and protection order — Aboriginal and Torres Strait Islander children — Aboriginal and Torres Strait Islander child placement principles (application of) — Guardianship order — Filing of a cross-application out of time — Admission of evidence.

With regard to s 10(b) of the Children and Young People Act 2008 (ACT) (‘Children Act’), which provides that Aboriginal and Torres Strait Islander people or organisations who provide ongoing support services may make submissions on behalf of the child, Refshauge J expressed that the Director-General should make reasonable inquiries to become aware of such people or organisations and, if they exist, invite them to make submissions. In obiter, it was opined that if a court is on ‘on notice’ that a child who is party to the proceedings is Aboriginal, certain matters should be taken into account, even if this is not raised by either party.

In September 2012, the Director-General of the Community Services Directorate took emergency action under the Children Act to take the child into care. An application was made in October 2012 to the Children’s Court seeking interim provisions and a final care and protection order for two years. In March 2013, an amended application was filed seeking a final care and protection order until the child attained the age of 18 years.

The mother, JL, is an Aboriginal woman. She made a cross-application for a final care and protection order for two years. She failed to file her cross-application in the time permitted (within 28 days), filing her documents 54 days later (five days before the proceedings were listed to resume). JL’s solicitor cited JL’s being in custody, and problems with legal aid grants, for the delay in filing her documents.

JL’s reasons for failing to file her cross-application in time were not accepted by the Children’s Court. At the final hearing for the application and cross-application, the application for leave to file the cross-application was dismissed, as was the cross-application, due to JL’s failure to file her documents in time.

The Magistrate then proceeded to make a final care and protection order placing the child under the supervision of the Director-General until the child attained the age of 18 years. JL appealed the refusal of leave to file the cross-application and its dismissal, as well as the final care and protection order.

A number of grounds of appeal were lodged. Most relevantly, Ground 8 contended that the learned Magistrate failed to take into account the matters required under s 10 of the Children Act (the Aboriginal and Torres Strait Islander child placement principles).

At paragraphs [53] of the judgment, Refshauge J observed:

Ground 8 of the appeal was considered by Refshauge J at [249]–[264] of his Honour’s judgment. At [250], his Honour noted the importance of the provision, before turning to the facts of the matter as they apply to s 10.

At [257] his Honour made comments in obiter accepting a submission from JL’s counsel that, where the court is ‘on notice’ that a child to the proceedings is Aboriginal, this requires the court to take certain matters into account, even if this is not raised by either party.

With respect to s 10(a), his Honour found that the requirements of this section were met, relevantly noting:

Reports by both the social worker and psychologist refer expressly to the importance of the child maintaining his cultural connections and Aboriginal heritage.¹⁰⁰

The child was placed in the care of a relative, who wished to ensure that they were not ‘lost’ to non-Indigenous carers.¹⁰¹

With respect to s 10(b), no Aboriginal people or organisations were identified as providing ongoing support services, and so there was no need for submissions as required by the section. However, Refshauge J made some comments regarding the content of s 10(b):

With respect to s 10(c), his Honour noted that its requirements had been met by the materials to which he had referred (the care plan and social worker and psychologist reports), which the trial Magistrate had considered. None of the grounds of appeal were made out, and Refshauge J dismissed the appeal.

Care and protection — Guardianship order — Aboriginal and Torres Strait Islander children — Role of court in child protection proceedings.

Slicer J encouraged courts to scrutinise the acts of the protective authority to ensure that discretionary power is exercised reasonably. It was expressed that the appropriateness of a child protection order will depend on its nature and length and a limited supervision or control order may be made readily as it can be monitored and reversed if required.

The appellant sought review of separate orders declaring three children, S, Sa and J, who had been residing with her and her husband, to be wards of the state. The children were of Aboriginal descent.

This was an appeal from the Court of Petty Sessions. The grounds of appeal in relation to Sa and J were:

The grounds of appeal in relation to S were:

At paragraphs [6]–[8] of his reasons, Slicer J made a number of observations regarding the approach to be taken when dealing with an application for guardianship orders, and the role of the court in scrutinising the acts of the protective authority:

Care and protection — Aboriginal and Torres Strait Islander children — Revocation of guardianship order — Procedural fairness.

It was held that there had been no error of the primary judge in reversing secretary orders by allowing Aboriginal siblings who had been split up to return to the care of their Aboriginal grandmother. The primary judge’s decision had been made in the best interests of the Aboriginal children to maintain connection to their culture and family and there was no breach of natural justice in making this order.

Four Aboriginal children, aged 9 (a boy), 7 (a boy), 5 (a girl) and 2 (a girl) lived with their mother in the home of their maternal grandparents. The grandmother was the de facto carer of the children, supported by the grandfather. The mother had substance misuse issues and her behaviour was physically and emotionally disruptive for the children and a serious disturbance of the home of the grandmother. The Department of Human Services was aware of these circumstances.

After a long period of encouraging the grandmother and mother to care properly for the children, the secretary applied for custody to secretary orders. Those orders were made by consent; however, the children were left in the grandmother’s home on conditions. The secretary’s protective concerns increased and, on 3 September 2009, the children were removed from the care of the grandmother. Attempts were made to place the children together in Aboriginal out-of-home care; however, this option was not available and the children were placed separately with non-Aboriginal carers. The eldest two children began displaying behavioural difficulties, and absconding from their carers.

Following these developments, the mother decided that it was in the best interests of the children that she move out of the grandmother’s home, and informed the department of the same. When they refused to place the children back with the grandmother, the mother applied for the revocation of the orders.

On 2 November 2009, the first mention hearing of the revocation application was held. At this hearing, the Magistrate made interim accommodation orders allowing the children to return to the care of the grandmother. On 4 November 2009, he made further final orders revoking the custody to secretary orders.

The Magistrate’s oral reasons were summarised by Bell J:

The secretary appealed the Magistrate’s revocation of these orders.

The grounds of appeal put forth by the secretary were as follows:

Bell J dismissed both grounds of appeal, finding that it was within the Magistrate’s procedural discretion to revoke the custody to secretary orders as he did.

Before turning to the grounds of appeal, his Honour set out the law, including discussions of:

Bell J noted that the procedural irregularities complained of by the secretary included the following:

Care and protection — Aboriginal and Torres Strait Islander children — Long-term guardianship order — Grandparent carer — Suitability of grandparent as carer.

It was held that it was more appropriate to place an Aboriginal and/or Torres Strait child with a non-Indigenous relative than with Child Protection Services if the relative can appropriately support the child. In cases where it is alleged by the department that the current carer is failing to meet the child’s needs, the conduct of the department should also be queried by asking whether the department has assisted the non-Indigenous relative to help support the child’s connection to their Aboriginal and/or Torres Strait Islander culture.

The children had been in the care of their paternal grandmother, JP, since 2000 and 2002 respectively. The children are of Indigenous heritage on their mother’s side. JP is non-Indigenous.

In February 2007, Magistrate Braes made a short-term protection order in regard to the children, KP and SP, granting guardianship to the Chief Executive of the Department of Child Safety (‘CEO’) for a period of two years. That order had expired and the CEO sought long-term guardianship over the children until such time that they turn 18.

The primary issue for decision was whether Magistrate Braes should grant the CEO a long-term or short-term guardianship order in respect of the children, or, alternatively, whether his Honour should make a custody order, if he deemed a guardianship order inappropriate.

The applicant submitted that an order for long-term guardianship should be made in favour of the CEO, and not in favour of JP, as she was not a suitable person as defined by s 9 of the Child Protection Regulations.

His Honour found in favour of JP, and made long-term guardianship orders in her favour.

In submissions, the applicant variously argued that JP was not a suitable person because:

His Honour variously considered these allegations, and largely found that the Applicant had not put forth evidence on which these concerns may be substantiated. He was critical, also, of a number of the applicant’s allegations against JP, noting in particular the complexity of KP’s emotional needs and the lack of evidence that JP posed any risk of harm to the children beyond the incidents alleged.

With respect to the allegation that JP was not providing for the children’s needs, his Honour queried the lack of evidence showing what the Department had been doing to address its concerns with JP, by way of providing her with further assistance or supports to alleviate its concerns¹³³ — for example, by helping her to locate additional Indigenous family connections.

His Honour noted, further, that JP should not be discriminated against on the basis of her age, and that she presented as an energetic, dedicated grandmother.¹³⁴ His Honour found that JP was a suitable person, and made long-term guardianship orders placing the children into the care of JP until such time as they turn 18.

Mainstream adoption — Best interests of an Aboriginal and Torres Strait Islander child — Definition of ‘Aboriginal child’ — Consideration of text, context and purpose of s 4 of the Adoption Act 2000 (NSW).

The Court found that the three-limb definition of ‘Aboriginal child’ approved in Fischer v Thompson was too narrow. It held that, if a child is not automatically considered an ‘Aboriginal child’ for the purposes of s 4(2) of the Adoption Act 2000 (NSW) (‘Adoption Act’), the court has discretion to determine whether the child is an ‘Aboriginal child’.

The respondent adoptive mother commenced proceedings in 2018 seeking an order for the adoption of a teenaged child. The respondent had cared for the child for most of the child’s life. Adoption orders were made in July 2019, pursuant to the Adoption Act.

According to that legislation, the Supreme Court must, in making an adoption order, apply the Aboriginal child placement principles specified in the Act if the child subject to the order is an ‘Aboriginal child’.

At the hearing in the Supreme Court of New South Wales, the child was understood to be an ‘Aboriginal child’ for the purposes of the Adoption Act. However, the Court was aware that the decision in Fischer v Thompson (‘Fischer’)¹³⁵ was to be handed down the day after the hearing in this matter, and could alter the parties’ understanding of who is an ‘Aboriginal child’ under the Act.

Fischer found that a child would only be an ‘Aboriginal child’ if it was possible to identify an ancestor who met the definition of ‘Aboriginal’ under the Act by satisfying the three-limb test of being a member of the Aboriginal race of Australia, identifying as an Aboriginal, and being accepted by the Aboriginal community as an Aboriginal.¹³⁶

The Court proceeded on the basis that the interpretation in Fischer was correct, and the primary judge was not satisfied on the evidence that the child was an ‘Aboriginal child’. The child’s biological father appealed against those orders.

Relevantly, the applicant appealed against the adoption orders on two grounds:

In the New South Wales Court of Appeal, Basten, Leeming and McCallum JJA allowed the appeal on the first ground, finding that the child was an ‘Aboriginal child’ for the purposes of the Adoption Act and overruling the decision in Fischer.

Leeming JA considered that the three-limb definition of an ‘Aboriginal child’ approved in Fischer was too narrow. His Honour further observed:

Leeming JA found that the court has discretion whether or not to exercise that power, and that ‘children of Aboriginal descent, however remote, are not automatically “Aboriginal children” by reason of s 4(2)’ of the Adoption Act; rather, they may be considered ‘Aboriginal children’ by determination of the court.¹³⁸

Basten JA agreed with Leeming JA’s reasons, but made the following comments in obiter regarding the purposes of the Aboriginal child placement principles:

His Honour then went on to observe that there has been much criticism of the operation of these principles in the adoption context:

Basten JA finally noted that concerns regarding the implementation of the Aboriginal child placement principles in the child protection context have ‘direct relevance in the case of adoptions’:

McCallum JA agreed with the reasons of Leeming and Basten JJA.

Paul Ban is a non-Indigenous social worker who has spent a number of years working with Torres Strait Islanders to help them gain legal recognition of their customary adoption practice. In this article, he considers how the negotiation of a formal treaty between Aboriginal and Torres Strait Islander peoples and non-Aboriginal and Torres Strait Islander peoples is an important step toward reconciliation and self-determination and equality for Aboriginal and Torres Strait Islanders. Ban considers the use of treaties in New Zealand and Canada in achieving Indigenous self-determination, before considering how Treaty may assist Torres Strait Islanders in achieving self-determination. The article ends with a consideration of how treaty recognition might assist Torres Strait Islanders in achieving legal recognition of their customary adoption practices.

In this article, Professor Behrendt highlights three stories of child removal, told from the perspective of Aboriginal and Torres Strait Islander women. In doing so, she highlights the reality of injustices perpetrated by the child protection system against Aboriginal and Torres Strait Islander women and families, and the importance of Aboriginal and Torres Strait Islander self-determination in addressing them. In giving voice to these stories, Behrendt situates such continuing injustices as part of a larger Colonial project which continues the legacy of intergenerational trauma and the Stolen Generations experienced by Aboriginal and Torres Strait Islander peoples.

With respect to child protection, the article also considers:

Kyllie Cripps is a Palawa woman from Tasmania and a Professor at Monash University. She is also a former foster carer.

This article examines the complexity of adjudicating ‘best interests’ in an environment where Aboriginal and Torres Strait Islander children are being removed at a rate that is tantamount to ‘another stolen generation’. She emphasises the importance of culture in the identity formation of children, and queries how the racial rights of Aboriginal children are upheld in a context where the state has a self-interest in maintaining its own cultural stereotypes.

Cripps highlights that ‘best interests’ for Aboriginal and Torres Strait Islander peoples also has a deeper historical meaning than that conveyed by the United Nations Convention on the Rights of the Child. She highlights the legacy of previous policies of discrimination and control that restricted who Aboriginal people could marry, what work they could do and where they could live — and that ‘best interests’ is, therefore, viewed and experienced as an extension of colonisation. This, she says, is an experience that is not shared by other Australians.

The article argues that the rights accompanying citizenship have not been fully available to Aboriginal and Torres Strait Islander peoples and that this influences the position of Aboriginal people before courts. Cripps emphasises the need to shift from the pathologisation of individuals and risk factors to one of primary intervention that invests in supporting families and preventing abuse in the first instant as a better conceptualisation of safeguarding the interests of Aboriginal and Torres Strait Islander children and their families.

This article considers the impact of permanent care orders on Aboriginal and Torres Strait Islander children given their overrepresentation in out-of-home care and, particularly, the risk that they will be culturally disconnected from their families and communities. It notes the outcry from Aboriginal and Torres Strait Islander community-controlled organisations about this rupture and the importance of a mandated cultural care plan, particularly in the case of permanent care orders. Cripps and Laurens argue that the shift to permanent care orders has financial and legal benefits for states, which are pushing for permanency given that they no longer have these responsibilities for children once they are placed under such an order. This has ramifications in the case of Aboriginal and Torres Strait Islander children, there being little oversight to ensure they can remain culturally connected to their family and community.

Robyn Davis and Judith Dikstein are lawyers practising family law in Darwin. This article provides an overview of the different cultural conceptualisations of ‘family’ in the Family Law Act 1975 (Cth) (‘FLA’) and in the Tiwi Islander community, as one distinct Indigenous cultural group. In Tiwi culture, other people can ‘grow up’ Tiwi children through informal arrangements whereby the caregiver becomes part of the Tiwi family. Davis and Dikstein critique the cases of B v R and the Special Representative¹⁴² and Puruntatameri & Baird v O’Brien (unreported, Nicholson CJ, Ellis and Moore JJ, 11 March 1997), which ordered that a Tiwi child remain with a Torres Strait Islander caregiver, despite the many members of the Tiwi community able to grow the child up. In doing so, Davis and Dikstein emphasise the inadequacy of the FLA in recognising the heterogeneity of Indigenous cultures.Some consideration is also given to the Aboriginal Child Placement Principle, which the authors argue should be fully recognised within the FLA.

This article queries the monocultural nature of the Australian family law system and the extent to which it is able — or rather, unable — to accommodate cultural differences. This is particularly important, it argues, for recognising distinct familial kinship differences among cultures, such as those practised by Indigenous Australians.

The article traces the importance of the case of B v R and the Special Representative, which, short of implementing anything akin to the Aboriginal and Torres Strait Islander Child Placement Principle, emphasised the disconnection and alienation faced by Aboriginal children when placed in ‘a white environment’.¹⁴³ In doing so, the Family Court stressed that, more than the ‘right to know one’s culture’, the court must take heed of the effect of their placement on the children’s health and wellbeing.

Dewar emphasises the heterogeneity of Indigenous cultural and kinship practices, as evidenced by the Full Court in the case of Re CP.¹⁴⁴ The Court in that case highlighted the challenges of imposing Western assumptions of Indigenous cultures in a way that homogenised rather than appreciated the differences between Tiwi and Torres Strait Islander cultures.¹⁴⁵

This article is a co-authored consensus paper by 70 attachment theory experts from around the globe. The article suggests that the concept of attachment theory is misunderstood and misapplied, particularly in family court settings. The article sets out key misunderstandings in relation to attachment theory, including the following:

Given the pitfalls associated with attachment assessments, Forslund et al suggest that assessments of a caregiver’s capacity to provide a safe haven for the child in times of need may be more valuable for targeting supportive interventions than assessments of attachment.

This article is a co-authored consensus paper by 43 international academics with specific expertise in attachment theory. The article reviews the concept of disorganised attachment, which was initially proposed to account for conflicted or fearful behaviour shown by children towards their caregivers in a laboratory setting. The article examines whether this classification does, in fact, indicate maltreatment, and what relevance ‘disorganised attachment’ has to child protection decision-making. The authors conclude that the concept is subject to misunderstanding and misapplication, noting that ‘[t]hese misapplications not only violate children’s and parents’ human rights but in many cases, they may also represent discriminatory practice against minorities in need of our social and material support’.

The consensus paper arrives at a number of key findings, including the following:

Henry Kha is a senior lecturer in law at UNSW and Marica Ratnam is a graduate of Macquarie Law School working at the Immigration and Advice Rights Centre.

The article traverses the rights of Indigenous children under the family laws of Australia and New Zealand. The analysis takes place prior to the 2023 amendments to the Australian Family Law Act 1975 (Cth) (‘FLA’).

Kha and Ratnam highlight the findings of the 2019 report of the Australian Law Reform Commission (‘ALRC’), Family Law for the Future: An Inquiry into the Family Law System, which argues that the cultural safety of Indigenous children is not adequately upheld.

Kha and Ratnam trace the disparate findings in cases such as Hort v Verran,¹⁴⁶ which recognised the importance of Indigenous culture in making placement determinations, and Oscar v Acres,¹⁴⁷ where the Family Court placed the child with the non-Indigenous father as opposed to the Aboriginal grandmother. This, according to Barry J, was in keeping with the spirit of the law to uphold the child’s best interests in accordance with former s 60CC(2)(a) of the FLA, which gave preference to the rights of parents over non-parents.¹⁴⁸ The authors argue that this failed to give appropriate weight to former s 60CC(3)(h).

The article also acknowledges the positive judicial perspectives that offer a nuanced understanding of the cultural rights of Indigenous children, citing Hort v Verran and Ricketts v Crowe¹⁴⁹ as cases which emphasise the ‘fluid nature of Aboriginal child care arrangements and parenting practices’ and the detrimental impact of a child’s dislocation from their culture on their long-term psychological and emotional needs. The Court in the latter case relied on ss 60B(3) and 60CC(3)(h) of the FLA in placing the child with their maternal Indigenous grandmother.

The authors argue that amendments to the FLA are needed so as to balance the rights of parents and non-parents in culturally complex matters involving Indigenous claimants. Amendments to the FLA have since been made as recommended by the ALRC review identified above.

This article argues for the primal importance of cultural connection to the health and wellbeing of Aboriginal and Torres Strait Islander children. It considers cultural differences between Aboriginal and Torres Strait Islander and non-Aboriginal and Torres Strait Islander organisations, and the differing importance placed upon cultural connection by each type of organisation. It argues, ultimately, that cultural connection is a fundamental need for Aboriginal and Torres Strait Islander children in care, and that ensuring that they remain connected to their families, even while residing in out-of-home care, is a vital way of ensuring this need is met.

This 2007 article by Terri Libesman (originally published in volume 6, issue 24 of the Indigenous Law Bulletin) was reprinted in 2017 alongside another article in the Bulletin on Indigenous children in care to compare and contrast what had and hadn’t changed in child welfare systems since 2007.

Libesman considers the legal landscape of child protection as it applies to Aboriginal and Torres Strait Islander families, and argues that the issue of overrepresentation of Aboriginal and Torres Strait Islander children in the child welfare system is deeply rooted in a legacy of colonialism. The article considers aspects of the colonial experience for Aboriginal and Torres Strait Islander families, and argues that they need to be addressed within the child welfare service delivery context. The importance of self-determination, progressive child welfare legislative reforms and Australia’s obligations at international law are also considered by Libesman in her investigation of how the child welfare system can and should be actively supporting Aboriginal and Torres Strait Islander families.

This article considers the legal landscape for Torres Strait Islander traditional adoptions five years before the promulgation of the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 (Qld). In particular, it considers the manner in which the Family Court dealt with traditional adoptions, the Queensland Supreme Court of Appeal decision of Eatts v Gundy (and the implications for traditional adoptees under succession law) and the role of the Convention on the Rights of the Child in supporting legal recognition of traditional adoptions in Australia.

This article, published two years before enactment of the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 (Qld), considers the issue of lack of recognition of Torres Strait Islander traditional adoption, and the discriminatory implications this has for Torres Strait Islander traditional adoptees. It considers in detail the practice of Kupai Omasker, and the ways in which Australian law’s failure to recognise traditional adoption manifest in discriminatory laws and policies. It considers the legal landscape in Queensland and evaluates the extent to which Queensland law recognises or fails to recognise traditional adoption, in the areas of surrogacy law, adoption law, child protection law and succession law. It then turns to consider the way in which family law (at a federal level) has attempted to recognise traditional adoption in some limited form, through orders for parental responsibility that ultimately, have no bearing on the legal status (or parentage) of the traditional adoptee, and leave the door open for disputes to arise between biological and cultural parents.

This article considers the experiences of Noongar woman and legal academic Hannah McGlade with the child welfare system in Western Australia, and provides personal insight into some of the issues Aboriginal and Torres Strait Islander peoples face when encountering such systems. The article also provides anecdotal strategies for advocacy in the Children’s Court, and how existing legislative frameworks might be used to promote the use of Aboriginal family-led decision-making in welfare proceedings.

Stephen Ralph is an Indigenous psychologist and former Director of Family Court Counselling in Darwin.

This article discusses the difficulties for Indigenous families, and particularly women, in seeking recourse through the courts for family disputes. It identifies, as other articles have, issues for Indigenous people with accessing court systems. For women, this can include being further subjected to violence or retaliation at the hands of their partners, family or community.

The article discusses a number of areas that address these needs, including those initiatives by former Chief Justice Alistair Nicholson, and the significance of extensive family and kinship obligations and practices to recognising the collectivist rather than nuclear view of family in the lives of Indigenous peoples.

In determining best interests of Indigenous children, Ralph emphasises the case of B v R and the Separate Representative¹⁵⁰ which he considers provides important direction to courts on the meaning of ‘connection’ as specified under the Family Law Act 1975 (Cth), quoting from the judgment:

Ralph argues that every Indigenous child has a need to maintain a connection with their culture, citing — as Davis and Dikstein¹⁵² did — that this must go beyond simply having information as to their culture and include the ability to participate in that culture.

Stephen Ralph is an Indigenous pscyhologist and a previous Director of Family Court Counselling in Darwin.

This article provides a critical perspective on the ‘best interests’ enquiry in Family Court proceedings where an Aboriginal and Torres Strait Islander child is the subject of those proceedings. Various aspects of this article have been cited with approval by the Full Court, most recently in Donnell v Dovey,¹⁵³ for its consideration of the importance of a child’s need to maintain stable attachments versus their need for cultural affiliation. Ralph argues that decision-makers often privilege stable attachments over cultural affiliation, an approach which is Anglocentric and fails to recognise Indigenous child rearing practices.

Keryn Ruska is an Aboriginal woman from the Noonuccal tribe of the Quandamooka people of Minjerribah (North Stradbroke Island), solicitor and associate lecturer at Griffith University. Zoe Rathus is a senior lecturer at Griffith Law School.

The article considers the struggles of the family law system, including the Family Law Act 1975 (Cth), to appropriately grapple with Indigenous concepts of family, despite the 2006 amendments to the Act. It cites the complexity of the Donnell v Dovey case,¹⁵⁴ where the Federal Magistrate placed a child with his Torres Strait Islander father, despite his growing up with his Aboriginal Wakka Wakka family and having had very little contact with his father. The authors highlight that the Full Court, in the appeal, noted that the Magistrate likely supplemented their own dominant cultural values in deciding what was culturally appropriate, and did not take anthropological evidence of Wakka Wakka child rearing traditions in which siblings take on a care-giving role in the absence of a parent. In doing so, the authors emphasised that judicial notice must be taken of the fact that norms that apply to white Australian children do not apply with ‘equal force’ to indigenous children.

The article notes the continued need for ongoing improvements to legislation and for judicial officers to have appropriate cultural knowledge when making decisions involving Indigenous children. They emphasise the need to consider the questions posed in Donnell v Dovey, in matters involving Indigenous children, such as

This article provides an overview of the child protection and family law systems and the way in which they are, and are not, engaged in by Aboriginal and Torres Strait Islander peoples. It traverses the stark contrasts between the public realm of children’s courts as models within states and territories and the less-utilised family court system, which, as an area of private law, is less reactive and operates federally. The article offers a view that engaging in the family law system is one way to intervene earlier in the lives of Aboriginal and Torres Strait Islander children and to arrive at better outcomes than those possible under the child protection system.

Titterton identifies that Aboriginal and Torres Strait Islander families are grossly underrepresented in the family law system, while being overrepresented in the child protection system; addressing this means making the former accessible to enable more children to remain with their families. She identifies that addressing a multitude of barriers, including of cost, awareness, cultural sensitivities and knowledge of legal needs, may mean that the family law system is better utilised. This has been partly addressed through the creation of the Aboriginal family law list, among other initiatives. The article argues that the family law system’s responsiveness to allow a multitude of other people to become a party to proceedings stands apart from existing child protection systems, as does the requirement for the Family Court system to consider how a child will enjoy their cultural rights in making a determination as to their ‘best interests’.

Titterton identifies the differential outcomes that persist for Aboriginal children across both systems, citing Drake v Drake¹⁵⁵ where the Court upheld the right of an Aboriginal grandmother to continue to care for her six grandchildren. The Court criticised the intervention of the Department of Family and Communities in the case, which had removed the children, citing the grandmother’s lack of parenting skills, and had not made sufficient plans for the long-term living arrangements of the children.

Titterton cites the case of B v F¹⁵⁶ in identifying what is meant by ‘connection’ to culture in this determination, noting that it should be ‘active and participatory’, something which has been affirmed by subsequent cases such as Davis v Davis,¹⁵⁷ Hort v Verran¹⁵⁸ and Sheldon v Weir.¹⁵⁹

The article identifies research on permanency planning as a means of informing policy and practice on its use at around the time of publication. It continues to be cited for the underlying rationales that inform the use of permanency planning in Australia.

Tilbury and Osmond highlight that time-poor caseworkers and other practitioners lack the time and resources to undertake lengthy reviews to assist with decision-making as it concerns permanency. They stress that permanency planning has its origins in the 1970s and emerged to ‘promote stability and continuity’ in the lives of children subject to child protection orders. Its resurgence in the 1990s has occurred alongside the burgeoning numbers worldwide of children going into care and having a number of placements while in care.

The article highlights that permanence is about more than just placement and encompasses physical, relational and legal permanency, which are elements required to achieve true permanency for a child.

Tilbury and Osmond emphasise the influence that attachment theory has had on policies and practices of permanency, some aspects of which have been debunked and deemed to be inappropriate for use in some cultures. They note that the theory does not account for some individual differences among children, including cultural differences, in attachment patterns. They maintain that the situation of each child should be assessed separately and that theories such as attachment theory should not be a determining factor.

This paper suggests the proper approach to be taken when undertaking psychological assessments or interventions with Aboriginal and Torres Strait Islander communities. It highlights issues of cultural bias within existing psychological measures and offers suggested resources to promote better understanding of these measures. Section 5.2.3 of the paper relates specifically to family assessments, and cultural differences that may arise when undertaking these assessments. Table 5.1 helpfully provides an overview of the differences in Aboriginal and Torres Strait Islander and non-Aboriginal and Torres Strait Islander child rearing practices.

This paper that makes the case that applying non-Indigenous constructs and understandings of child development contributes to the disproportionate investigation of Aboriginal families and interventions to remove Aboriginal children by the Child Protection System. Attachment theory is one such prevalent framework with significant applications in child protection.  The paper argues that while constructs of attachment have attempted to grapple with diversity, its application in Australian child protection policy and practice reflects dominant socio-cultural perceptions as a foundation for decision making that misrepresents Aboriginal families and their children’s developmental needs.

In Decolonising Indigenous Child Welfare, Terri Libesman considers the manner in which advocacy by Aboriginal and Torres Strait Islander organisations at international and national levels has influenced reform of Australian child welfare systems. Chapter 6 of the book offers a good overview of the Australian child welfare system. It squarely considers Australian child welfare frameworks, situates these frameworks in the context of historical developments and Aboriginal and Torres Strait Islander advocacy, and considers key aspects of the legislative regimes from a general or national perspective. The chapter also contains a case study regarding the Victorian approach to child welfare reform, and the manner in which such legislation embeds Aboriginal and Torres Strait Islander self-determination into its frameworks. This case study is contrasted with a case study of the Northern Territory Intervention. Libesman is critical of the Intervention’s paternalistic approach towards Aboriginal and Torres Strait Islander child welfare and its lack of efficacy in promoting the best interests of Aboriginal and Torres Strait Islander children.

Article 5:

Article 8(1):

Article 21:

Article 29(1):

Article 30:

This General Comment examines the specific challenges which impede Aboriginal and Torres Strait Islander children from being able to fully enjoy their rights. It explores the various provisions of the Convention on the Rights of the Child which require particular attention in their implementation in relation to Aboriginal and Torres Strait Islander children. Key paragraphs include the following:

Cobble Cobble woman and Scientia Professor, Megan Davis in Family Is Culture highlights the relevance of General Comment No 11 to the child welfare system:

Article 3:

Article 5:

This article is part of Queensland’s Child Safety Practice Manual, and contains useful background information as to Aboriginal and Torres Strait Islander family-led decision-making principles and practices. The web page also contains links to further reading on Aboriginal and Torres Strait Islander family-led decision making, which are primarily applicable to the Queensland child protection context.

This document is a guide for the convening of Aboriginal family-led decision-making in Victoria. It is of primary relevance to Victorian practitioners and contains information as to how such conferences will run and the roles and responsibilities of the persons involved.

Key recommendations relating to best interests of Aboriginal and Torres Strait Islander children include the following:

This document is an annual report released by the Australian Institute of Health and Welfare that identifies adoption trends in Australia.

The report traces the number of Aboriginal and Torres Strait Islander children who have been subject to adoption in the past year, as well as adoptions that have taken place, and the nature of those adoptions, since 1998.

The report notes that 4 Aboriginal and Torres Strait Islander children were adopted in the past year and that numbers were high between 2018–23, with approximately 31 children being the subject of those orders.

While the report notes the importance of the Aboriginal and Torres Strait Islander Child Placement Principle, it also emphasises that Aboriginal and Torres Strait Islander children are increasingly being adopted by non-Aboriginal people.

In the introduction to this Statement of Compatibility, Cynthia Lui MP comments on the importance of the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Bill as follows:

She explains the key features of the Bill as follows:

This Family Law Council report considers potential legislative responses to the recognition of traditional Aboriginal and Torres Strait Islander child rearing practices, including Kupai Omasker. The report details the procedure by which the Family Court previously dealt with Kupai Omasker disputes, prior to enactment of the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 (Qld).

The Family Is Culture review, chaired by Professor Megan Davis, is unique for a number of reasons. As explained by Professor Davis:

The report is notable for its Aboriginal and Torres Strait Islander–led approach to the issues experienced by Aboriginal and Torres Strait Islander families with the child welfare system. It offers detailed consideration of:

Paul Ban is a non-Indigenous social worker who has spent a number of years working with Torres Strait Islanders to help them gain legal recognition of their customary adoption practice. In this article he explains the practice of customary adoption, the reasons for which they are undertaken and the cultural differences that exist between Torres Strait Islander and non-Islanders in respect of adoption. He also considers a number of difficulties that arise as a result of a lack of legal recognition of these practices, in respect to succession law, administrative difficulties involving changing birth certificates, and disputes over the care of adopted children in the family court.

Drawing on focus groups involving 16 Aboriginal and Torres Strait Islander parents, carers and community members, this paper considers some characteristics of traditional Aboriginal and Torres Strait Islander cultural practices that contribute to effective family functioning, suggesting that these practices can have positive effects on children and their communities. Key points articulated by the authors are as follows:

The guide is a resource created by SNAICC, the national non-governmental peak body in Australia representing the interests of Aboriginal and Torres Strait Islander children and families. It is intended for the use of practitioners in child welfare spaces to promote a holistic understanding of the five elements of the Aboriginal and Torres Strait Islander Child Placement Principle (‘ATSICPP’): prevention, placement, participation, partnership and connection. Practitioners should consider all five elements, and how each of these may be applied in each part of their practice.

These elements are briefly described here:

An additional, sixth element — identification — is also considered in the guide. This element refers to the importance of identifying Aboriginal and Torres Strait Islander children so that their cultural rights can be protected from the earliest possible stage at which they enter the child welfare system.

The guide also aims to embed the concept of ‘active efforts’ into child welfare policy and practice. ‘Active efforts’ are described as ‘purposeful, thorough and timely efforts that are supported by legislation and policy and enable the safety and wellbeing of Aboriginal and Torres Strait Islander children’. To this end, the guide contains reflective exercises, ‘promising practice’ case studies, practice strategies and general guidance for the implementation of the ATSICPP elements.

The Family Matters report series is a collaborative effort between SNAICC (the national non-governmental peak body in Australia representing the interests of Aboriginal and Torres Strait Islander children and families), the Family Matters campaign, Monash University and the University of Technology Sydney. A report is released each year which aims to keep track of and address the trends concerning the over-representation of Aboriginal and Torres Strait Islander children in out-of-home care, with a view to eliminating this over-representation by 2040. At the time of writing, the latest report was published in November 2024. Previous reports can be found on the SNAICC website.

The 2024 report usefully contains:

The 2023 report focuses on:

The 2022 report focuses on:

The 2021 report focuses on:

This article by Legal Aid Queensland provides a description of traditional Torres Strait Islander adoptions and the current law in respect of these adoptions. It also provides an explanation of ‘cultural recognition orders’ and sets out the procedure of applying such orders.