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Burns, Kate --- "Indigenous Women and Family Law" [1999] IndigLawB 96; (1999) 4(25) Indigenous Law Bulletin 23


Indigenous Women and Family Law

by Kate Burns

The ways in which the identity issues of Aboriginality and gender interact in judicial decisions under the Family Law Act 1975 (Cth) (‘the Act’) is being examined as part of an Australian Research Council research project into diversity issues in family law. Approximately fifty, mostly recent and mainly unreported family law decisions involving children with at least one Indigenous parent have been studied. Particular attention has been given to questions of whether, and how, race and gender discrimination affect the way Family Court judges view Indigenous mothers.

The research methodology draws on critical race feminism and feminist intersectionality theory. The main proponents of these theoretical schools are North American Black feminists who are critical of the manner in which feminism and race studies are based on the twin underlying assumptions that all women are white, and all non-whites are men. They argue that these assumptions overlook the particular combination of disadvantage and discrimination experienced by Black women. This process, whereby Black women are rendered invisible, may also mean that issues of concern to Black women are ignored.

Since the 1996 amendments to the Act, family law may be differentiated from other areas of Australian law in that issues of race, specifically Aboriginal and Torres Strait Islander heritage, have acquired some visibility (enabling research such as this to be done). Those amendments affect the definition of a child’s best interests which is the basic principle in determining which parent or party a child should reside with, and who should have contact with her/him (formerly custody and access). The amendments require the court to consider ‘any need’ a child may have ‘to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders’. However, the Act does not offer any guidance as to what emphasis should be placed on a child’s racial identity, as opposed to other factors. This is in keeping with the high level of discretion given to judges in relation to identifying a child’s interests and determining what is ‘best’, but it also creates the potential for inconsistency in decision-making.

Several themes may be identified in the cases.[1] One is the great variation in the sensitivity shown by Family Court judges towards Indigenous parents, Indigenous patterns of family life and Indigenous lifestyles. Indigenous mothers are constructed by some as deviant, bad mothers, regardless of their achievements in raising their children in very difficult circumstances. In addition to these factors, which relate specifically to Indigenous identity, the kinds of gendered stereotypes that feminist writers have observed being applied to non-Indigenous mothers,[2] are also being applied to Indigenous mothers. Compounding the impact of these gendered stereotypes is their foundation in non-Indigenous experience, which bears no direct relationship to the realities of Indigenous life.

The cases also demonstrate judges’ disparate levels of understanding of what Indigenous heritage means or involves, with some judges perceiving it simply as a kind of unfair advantage being sought over the other (non-Indigenous) parent. In these cases, the needs that Indigenous children have to develop their racial identity in order to deal with everyday racism is not acknowledged. That the cases should show such variation and a lack of awareness about Indigenous motherhood, Indigenous family life and the racism that Indigenous people confront in their daily lives, is a matter of considerable concern.

Though the sample of cases is relatively small, some interesting and disturbing trends may be identified. Of the fourteen single-instance decisions where residence was contested between an Indigenous mother and a non-Indigenous father or a non-Indigenous relative, the Indigenous mother obtained a residence order in four cases (approximately 29%). Non-Indigenous mothers were successful in obtaining residence over Indigenous fathers in six out of eleven cases (approximately 55%). In the seven residence disputes where both parents were Indigenous, the mother was successful in three cases (approximately 43%).[3] Despite the provision in the Act that a child’s Aboriginal or Torres Strait Islander heritage is a factor in determining her/his best interests, in seven cases where there were indications that at least one parent was Indigenous (because of the involvement of an Indigenous agency, eg the Aboriginal Legal Service or Aboriginal program), nothing was said about the child’s Indigenous background.

In a recent article, Susan B Boyd, Helen Rhoades and Kate Burns discuss the advantages and disadvantages for women that may arise from introducing a presumption into family law that the primary caregiver automatically receive custody of the child or children unless s/he is found to be ‘unfit’.[4] That article also explores the ways in which such a presumption is potentially ‘racialised’. One of the issues discussed is that while such a presumption might provide white mothers with greater certainty that family law will recognise their reproductive and caregiving labour, it could impact adversely on Indigenous mothers who care for their children within a non-nuclear, or multiple, caregiving framework. The cases studied in the present research project indicate that these mothers may also be at risk of being typed as ‘unfit’ because they do not fit the white middle class norm of ‘good motherhood’. The findings of the current research project are currently being prepared for publication in a longer format.

Kate Burns is a research academic at the Faculty of Law, University of Sydney.


[1] The unreported decisions which have been examined as part of the research project are held on the Family Court's internal database and were accessed with the Court's permission. They cannot be identified by name as section 121 of the Act prohibits the publication of any details that might identify a party to or associated with proceedings under the Act.

[2] For example, Regina Graycar, ‘Gendered Assumptions in Family Law Decision-Making’, vol 22(2) (1994) Federal Law Review, 278-299, Susan B Boyd, “Is There an Ideology of Motherhood in (Post)Modern Child Custody Law?”, vol 5(4) Social and Legal Studies, 495, Carol Smart and Selma Sevenhuijsen (eds), Child Custody and the Politics of Gender, Routledge, London, 1989 and also the journal article referred to in note 2 below.

[3] There has been no large scale empirical research into custody outcomes in overall family law proceedings, making the outcomes in cases involving Indigenous parties difficult to compare with general patterns. Two small studies of contested cases have been conducted in 1980 and 1992. They found that fathers obtained sole custody in 31% of cases and in 37-41% of cases obtained custody of at least one child: see F Horwill and S Bordow, The Outcome of Defended Custody Cases in the Family Court of Australia, Family Court of Australia, Research Report No 4, Sydney, 1983 and Sophy Bordow, ‘The Outcome of Defended Custody Cases in the Family Court of Australia’, (1994) 8 AJFL, 252. These statistics are discussed in Miranda Kaye and Julia Tolmie, ‘Father’s Rights Groups in Australia and their Engagement with issues in Family Law’, (1998) 12 Australian Journal of Family Law, 19 at 35.

[4] See Susan B Boyd, Helen Rhoades and Kate Burns, ‘The Politics of the Primary Caregiver Presumption: A Conversation’ (1999) 13 Australian Journal of Family Law, 1-30.

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