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Chisholm, Richard --- "Aboriginal Child Custody: Marriage of Gouge" [1985] AboriginalLawB 23; (1985) 1(13) Aboriginal Law Bulletin 9


Aboriginal Child Custody: Marriage of Gouge (1984)

Aboriginal children and custody.

Marriage of Gouge (1984)

Full Court of the Family Court of Australia

[1984] FamCA 6; 9 Fam L.R. 500

Casenote by Richard Chisholm

If custody cases are difficult, perhaps cross-racial custody cases are the-most difficult of all. There is now a small body of Australian case law dealing with the custody of Aboriginal children, and with the very similar issues that can arise in adoption.[1] They don't come much harder than Gouge.

The three children were aged nine, eight and four. The father was of European descent and the mother of 'part Aboriginal descent'. The parents had married in 1973 and lived at Katherine in the Northern Territory until the marriage broke up in 1982. At the time of the hearing the mother was living in Darwin. She could offer the children full time care and the resources of her extended family, who lived in the area. The father was living in a de facto relationship with another woman, Mrs Brown, and withr her son aged 14, in Katherine. Mrs Brown would care for the children while the father was at work. The father's family lived in Victoria.

In many custody cases the result is largely determined by what has become known as the 'status quo', since courts take the sensible view that if children are well settled in, leave them there.[2] No such simple solution was open in Gouge. because since theseparation, the children had moved several times from one parent to the other, and on the facts, there was effectively no status quo established. Nor was it possible, of course, for the court to divide the children up: the case law establishes[3] that children should not normally be separated, and here there was evidence that they benefited from each other’s company. Finally, neither parent could be seen as disqualified because of unfitness.

The trial judge, Emery SJ, awarded custody to the father. The main factor leading to this result concerned the oldest child. The judge considered that while the other children appeared to be doing well, the oldest had special needs: the evidence was that he was agressive, and was unable to work with other children. Emery SJ accepted the evidence of his primary school teacher at Katherine that the boy ‘needed strong direction to learn discipline and social graces, a stable home life’. He was more likely to get it with the father than the mother: as Evatt CJ put it, ‘the factor which seemed most to concern his Honour was the contrast between the mother’s free and easy approach to the children and the firmer control exerted by the husband and Mrs Brown, coupled with the husband's greater determination.’ In the words of Emery SJ ‘With the problem that R has, it is very clear that his interests would be better served in the more controlled and disiplined surroundings’.

The evidence of Mrs Brown included the following:

Q. Have you given any thought to special difficulties of raising racially mixed children?
A. Yes.

Q. What do you think the special difficulties are?
A. The fact that there is such a large extended family on Margaret's side to which the children are constantly involved with.

Q. Is that a problem or an asset?
A. I think it is a problem, I think it is confusing to the children.

After hearing this evidence, Emery SJ said that he believed that the husband and Mrs Brown ‘fully understand this problem’. Evatt CJ commented, in a notable under statement, that in the light of their express lack of interest in the children’s Aboriginal connection, and in particular Marie Brown's reference to the wife's extended family as a problem or difficulty for the children, ‘their level of understanding may be open to doubt’.

Evatt CJ also made a more fundamental point. The trial judge's preference for control and discipline for the oldest child was 'based on a particular set of values', which were preferred to the set of values that characterise Aboriginal approaches to child rearing. It was a pity that this argument was not developed, because it raises a fascinating and important question about the role of the appeal court in custody cases. It is perfectly sensible, of course, to recognise that the trial judge has an advantage in having seen the witnesses. But this advantage related to assessing the likelihood that the witness is telling the truth, and in custody cases, forming a view about the character of the witness and his or her probable approach to the care of children. In the matter of choosing what set of values are to apply, the judges on appeal are in no worse position than the trial judge and there seems much to be said for the view that on such matters appeal courts can offer useful guidance. Is it possible, perhaps, to judge each parent on what is normal or appropriate in that parent's racial or cultural community? Or should we say that since people having some Aboriginal descent are generally identified by both communities as Aboriginal, it makes sense to apply Aboriginal values to children of Aboriginal descent? These are difficult questions, and perhaps should be addressed by appellate courts rather than be left to the judges at trial level. It may be unfortunate that the ruling in Gronow has been taken to inhibit appeals on the choice of value systems as well as on the assessment of witnesses and predictions about people’s behaviour, and sometimes misleadingly characterised as the judge’s ‘discretion’.

It was argued at the trial, and more elaborately on the appeal, that custody should have been awarded to the mother because of the children's Aboriginality and its implications, such as the important role of the extended family in the children's upbringing and their future identity as Aboriginal people. It was pointed out that if the father obtained custody, the children would have limited contact with Aboriginal, people because of the distances involved, and because of the unwillingness of the father to encourage the children to understand and value their Aboriginal identity.

The difficulty the mother faced on the appeal, of course, was that it is very difficult to persuade an appeal court to upset a trial judgement where the judge has referred to the relevant matters, and has made findings that can be supported by the evidence. It is very difficult these days, especially since the decision of the High court in Gronow v Gronow[4] to win a custody appeal unless the judge can be shown to have made some error, as distinct from merely giving more or less weight to some factors than the members of the appeal court would have given. The majority relied on Gronow in dismissing the appeal.

As Ross Jones J. Held:

I see nothing in his Honours judgement to suggest he was not conscious of the issues related by Mr MacDonald (for the mother] and I am not satisfied that his Honour erred in fact or in law nor that, as far as concerns the matter relevant to the exercise of his discretion, he acted otherwise than by reference to the appropriate criteria.

Evatt, CJ, however, dissented. She held that it was established that while the court should not prefer one race or culture to another, it should recognise the culture and background of these children as part Aboriginals ‘as a positive feature, able to provide something worthwhile’. This did not seem to be the attitude of either the father or Mrs Brown. The evidence of the father included the following passage:

Q. In what way is it different?
A. Their manner of speaking, the way they all live together, it is not the way I like to live. That is not the way I like the kids brought up either.

Q. Because, in fact, your wife is of Aboriginal descent?
A. That is what I am referring to.

Q. And indeed your children are of significant way of Aboriginal descent as well?
A. Very little.

Q. Very little?
A. Yes.. Have a look at the colour of them yourself.

Q. Do you think it is important at all that they maintain their ties to their Aboriginal parts?
A. No.

Q. Unimportant?
A. A week-end here or a school holday there, any damage done there could be undone, I suppose...

Although Evatt CJ dissented, she did not feel able on the evidence to award custody to the mother. Considering that ‘the doubts which arise from his Honours failure to deal specifically with the attitudes of the father, and Marie Brown are real and substantial’, the right result, in her Honour’s view, was that there should be a new trial.

In its Research Paper No. 4 on the Recognition of Aboriginal Customary Law, the Australian Law Reform Commission tentatively recommended that federal legislation should be passed providing guidelines as to what should be seen as in the interests of Aboriginal children in custody cases.[5] There are precedents for this in North America[6], in the child welfare legislation of the Northern Territory[7], and a recent adoption legislation in Victoria[8]. In the absence of such guidelines it is very difficult for courts to decide custody cases without unconsciously applying the set of cultural values of the particular judge it remains to be seen whether it will be enough to pass such legislation, as distinct from moving to a situation in which Aboriginal people themselves play a larger part in making placement decisions about Aboriginal children[9]. The decision at first instance in Gouge, and the apparent inability of the Full Court to address the issues it raises, provide timely support for the Law Reform Commission's view that legislation on this matter is required.


[1] Sanders and Sanders (1976) 10 ALR 604; Torrens v Fleming (1980) FLC 90-840; Reich v Reich (unreported judgement of Full Court of Family Court), 14 October 1982; F v Langshaw (1983) 8 Fam LR 833 (adoption); Connors v Douglas (1981) 7 Fam LR 360 (where both parties were Aboriginal); In the Matter of Freddie (N.T. Supreme Court 1975); discussed in ALRC Research Paper No. 4 at p.16); Colin Tatz cites several other unreported cases in “Aborigines and Civil Law”, in P. Hanles and B. Keon-Cohen (Eds.) Aborigines and the Law, George Allen & Unwin, Sydney 1984, pp. 103-136.

[2] See e.g. Marriage of Mulligan (1976) 1 Fam LR 11, 599.

[3] Barnett v Barnett (1973) ALR 19.

[4] [1979] HCA 63; (1979) 29 ALR 129.

[5] Australian Law Reform Commission Reference on Aboriginal Customary Law, Research Paper No. 4, Child Custody Fostering and Adoption (1982).

[6] Notably the Indian Child Welfare Act 1978 (USA) reproduced in ALRC Research Paper No. 4 at pp. 54-62.

[7] Community Welfare Act 1983 (NT), ss. 68-69.

[8] Adoption Act 1984 (Vic.)s. 50.

[9] For a discussion, see R. Chisholm “Black Children: White Welfare?”,Social Welfare Research Centre, University of New South Wales (in press).


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