349. The Child’s Welfare as ‘Paramount Consideration’. In general, decisions on the custody or placement of children are based on a single undifferentiated rule, directing attention to the ‘best interests of the child’ as the paramount consideration. The ‘paramount consideration’ applied in all cases of child custody can be illustrated by a clause common to State and Territory adoption legislation. The Adoption of Children Ordinance 1965 (ACT) s 15 states that: ‘For all purposes of this Part, the welfare and interests of the child concerned shall be regarded as the paramount consideration’. This principle (commonly referred to as the ‘welfare principle’) is also applied under the Family Law Act 1975. and in cases in State courts involving custody disputes over children. It is also relevant to decisions on fostering and placement of children in institutional care under State child welfare legislation (although it is not always spelt out expressly in the legislation).
350. An Undifferentiated Criterion. There can be little dispute that the overriding consideration in all cases of child custody should be the welfare of the child. The problem is that the relevant legislation usually fails to define or specify the matters to be considered in determining this. In practice it rests with the authority involved — whether judge, magistrate, welfare officer or public servant — to decide what constitutes the welfare of the child. Just as the forums for considering child placements vary from State to State, so too, we may expect, do the values and standards of the persons applying this principle in custody decisions. The Full Family Court of Australia has pointed out the open-ended nature of the principle:
In determining a custody application the court must regard the welfare of the child as the paramount consideration … Each case must be considered in the light of all the facts and circumstances particular to that case …
Similarly, the United States Supreme Court commented that:
judges … may find it difficult in utilising vague standards like ‘the best interests of the child’, to avoid decisions resting on subjective values.
It has been argued that current adoption law and practice reflect the values of urban ‘middle class’ society and are unresponsive to Aborigines in need of care. The criteria used for selecting custodians tend to disqualify most Aborigines, and may reflect values and assumptions at variance to those of Aboriginal society. Practices of child care through the extended family and the different emphasis placed on material comforts in bringing up children, can present particular difficulties when the question of what constitutes ‘the welfare of the child’ is being determined.
351. Some Judicial Applications. These difficulties can be reduced, if not overcome, in the context of a fully argued case where all the parties are represented and where the court is required to give reasons for its decision. Three cases, involving different courts and different factual and legal issues, illustrate this point, as they also illustrate the lack of explicit guidance given by the legislation.
In the Marriage of Sanders. This case involved a custody dispute over the child of a white father and an Aboriginal mother. The Family Court Judge (Justice Lindenmayer) at first instance, while finding the mother reasonably capable of attending to her child’s needs in a suitable environment, awarded the child to the father on the basis that Brisbane, where the father lived, was best suited to the immediate and longer term needs of the child. The mother was living in Elliott, Northern Territory, on an Aboriginal settlement, where the Judge found that the standards of cleanliness and hygiene were well below those of suburban Brisbane and the white community generally. The mother appealed to the Full Court of the Family Court. The Full Court noted that the Family Law Act 1975 does not specify what matters are to be considered as relevant to the welfare of the child and that the case had been ultimately decided on the issue of environment. ‘Environment’ was used to cover the areas of value judgment which were matters of greatest speculation and controversy in the case: emotional attachments, experience of discrimination, family and tribal relationships, and physical health. The Full Court found that the Family Court Judge had attached too much weight to the environmental and health issue and too little weight to the emotional benefits to the child of being in the constant care of its mother and in establishing with her a close and secure bond of affection. On this basis, the Full Court (by a majority, Chief Judge Evatt & Justice Watson, Justice Demack dissenting) allowed the appeal and the mother was awarded custody of the child. But the closeness of the case, and the subjective character of the ‘welfare principle’, is illustrated by the fact that the four judges in the case divided equally on the result.
In the Matter of F; McMillen v Larcombe. This case involved an application by white foster parents to the Supreme Court of the Northern Territory to dispense with the consent of the Aboriginal mother of a child whom the foster parents wished to adopt. Justice Forster noted that s 10 of the Adoption of Children Ordinance required that the welfare and interests of the child be regarded as paramount. The Judge considered that the only grounds on which he could dispense with consent would be if the advantages to the child of being adopted by the white foster parents amounted to special circumstances. While the foster parents could offer the child love and security within their family, the mother could offer him ‘the love of his natural mother and an extended family in which, as he grows older, he will probably feel more at home than with a white family’. It was further found that the living conditions which the child would enjoy with his mother ‘would, by European standards, be considerably less than those offered by the foster parents. However, by Aboriginal standards they are perfectly adequate.’ The Judge concluded that what was offered by the foster parents in a material, emotional spiritual way was not superior to what the mother could offer and ordered that the child be returned to the mother’s care.
F v Langshaw and Others. In this case, the Aboriginal father of an ex-nuptial child applied for custody. The child’s mother, a non-Aboriginal, had consented to adoption and it was intended to place the child with a Catholic family who had already adopted three other Aboriginal children. The child’s father wished the child to live with him and his parents in Stanley Village, an Aboriginal community on the outskirts of Moree. The father’s parents had experience in bringing up children other than their own. They satisfied the court that they could provide love and care and an adequate home. It was however argued that the level of racial tension in Moree was such that the child would be better off with the adoptive family where tensions of such nature did not exist. Justice Waddell concluded that:
It seems clear enough that if the child is brought up in Moree he will experience some difficulties and set-backs related to the circumstance that he is partly of Aboriginal blood and would be regarded as being a member of the Aboriginal community. He is likely to have significant experiences of this kind earlier in life than if he were to be placed with the proposed adoptive parents. On the other hand, his father and his grandparents being members of the Aboriginal community will be in a better position to support him and sustain his self-esteem on such occasions than would his adoptive parents. All in all, it seems to me that placing the child with the plaintiff and his grandparents would put him in a position where, at the least, he would be equally likely not to be hurt by racial discrimination than if he were to be adopted.
The results in these cases represent what appear to be enlightened and sensitive interpretations of the paramount consideration of the best interests of the child. The fact remains that deliberate policies of assimilation in the past, together with the emphasis which sometimes tends to be placed on material comfort in determining child placements, have resulted in large numbers of Aboriginal children being removed from their families and placed within non-Aboriginal families and in institutions. In some cases such decisions are not taken publicly by judges who, after argument from both sides, are required to spell out their reasons for decision, but by an administrative official in private. In such situations the lack of specific guidance provided by the ‘welfare principle’ can mean that the original decision is virtually unreviewable.
352. The Application of the ‘Paramount Consideration’ to Aboriginal Children: Policy Guidelines. Based on a recognition that the values and standards applied in determining Aboriginal child placements were resulting in high numbers of children being removed from their parents and their communities, Policy Guidelines on Aboriginal Adoption and Fostering were prepared in 1980 by the Department of Aboriginal Affairs. The Guidelines, which derived from the proceedings of the First Australian Conference on Adoption (1976), placed a high priority’ on maintaining Aboriginal children with their family and community environment in the contexts both of adoption and fostering. In fostering cases, the Guidelines called for the following procedures to be applied:
develop adequate support services in order to help parents care for their children in satisfactory ways: or
foster the children with Aboriginal relatives or with other Aboriginal foster parents preferably in the same community
In adoption cases, the responsible authorities were to apply the following guidelines:
Aboriginal children should be considered as available for adoption in cases where:
— the child has been surrendered voluntarily for adoption by his parents despite the offer of practical assistance to overcome any problems which may exist within the family environment;
— consent is dispensed with on justifiable grounds in terms of the relevant legislation;
Aboriginal children surrendered for adoption should be adopted with Aboriginal families wherever possible.
The Guidelines were considered at the Ninth Annual Conference of the Council of Social Welfare Ministers in 1978, but it was not until 1984 that the principles contained in the Guidelines received any express acceptance. At the 1984 Conference, the Council endorsed the Report of the Working Party established to review State Aboriginal fostering and adoption practices. The Report stated that ‘within the framework of sound child care practice the child’s Aboriginality is a significant issue which must be reflected both in decision making processes and in daily practice. The 1984 Conference endorsed the following recommendations in relation to fostering (and similar recommendations for adoption):
It is recommended that in the foster placement of an Aboriginal child a preference be given, in the absence of good cause to the contrary, to a placement with:
a member of the child’s extended family;
other members of the child’s Aboriginal community who have the correct relationship with the child in accordance with Aboriginal customary law;
other Aboriginal families living in close proximity (Recommendation 6).
It is recommended that selection criteria for Aboriginal foster parents be amended (by legislation if necessary) to:
(a) recognise Aboriginal couples married according to the customs of their community;
(b) recognise the prevailing social values and customs of the appropriate Aboriginal community;
(c) consider the appropriateness of recognising de facto marriages for fostering purposes (Recommendation 7).
The endorsement of these recommendations represents a significant advance. In 1982, this Commission’s Research Paper 4 had commented that there had been ‘only limited acceptance of the Guideline … to date … In some States and Territories, policies generally in line with those spelt out in the Guidelines are followed in practice but this is by no means universal. The Working Party of the Standing Committee of Social Welfare Administrators called for State policies and procedures to recognise the broad principles contained in the DAA Guidelines, while at the same time stating that they should reflect the particular experience in each State. At present, there are policy guidelines in Victoria, South Australia, and Western Australia, and draft policies in Queensland, the Northern Territory and New South Wales, which support special placement principles for Aboriginal children. Only in the Northern Territory and Victoria have principles such as those expressed in the Guidelines been implemented in child welfare or adoption legislation, though less specific legislation has been enacted in New South Wales.
See too Adoption of Children Act 1965 (NSW) s 17; Adoption of Children Act 1964 (NT) s 10; Adoption of Children Act 1964 (Qld) s 10; Adoption of Children Act 1966 (SA) s 9; Adoption of Children Act 1968 (Tas) s 11; Adoption Act 1984 (Vic) s 9; Adoption of Children Act 1896 (WA) s 2A.
Family Law Act 1975 (Cth) s 64(1)(a).
The tendency in more recent legislation is to seek to spell out relevant considerations in determining the ‘best interests of the child’: eg Family Law Act 1975 ((Cth) s 64 (inserted 1983); Community Welfare Act 1972 (SA) s 25 (inserted 1981). However these are usually, and perhaps necessarily, stated in such a general way that the scope of discretion is not significantly affected.
In the Marriage of Burton (1978) 24 ALR 378, 383.
Smith v Organisation of Foster Families 431 US 816, 836 n 36 (1977).
 Sommerlad (1976) 163.
(1976) 10 ALR 604.
The couple were married under the Marriage Act 1961 (Cth).
(1976) 10 ALR 604, 614.
For a similar case of a dispute between parents, but one which produced the opposite result, see In the Marriage of Gouge (1984) 54 ALR 513, noted by R Chisholm (1985) 13 ALB 9. In that case the Full Family Court by a majority (Ross-Jones, Strauss JJ, Evatt CJ dissenting) refused to overturn the decision at first instance awarding custody of the child to the non-Aboriginal father. Obviously the facts of the two cases were different, but one significant factor was the High Court’s intervening decision in Gronow v Gronow (1979) 29 ALR 129, the effect of which is that evaluative judgements at first instance can rarely be overturned on appeal. But cf (1984) 54 ALR 513, 525-6 (Evatt CJ, dissenting) citing passages from ACL Research Paper 4. By contrast, In re R (1985) FLC 91-615 was a similar case where the final judge’s decision in favour of the Aboriginal wife was upheld on appeal. On the question of Aboriginal custody disputes between parents see further para 367.
(1976) NTJ 1001 (Forster J).
(1983) 8 Fam LR 832, Waddell J; on appeal (sub nom Rushby v Roberts), unreported, NSW Court of Appeal (15 April 1983).
(1983) 8 Fam LR 833, 841. The decision was affirmed on appeal both on its merits and by application of the principle in Gronow: see eg transcript, 441 (Hutley JA).
See also Torrens v Fleming (1980) FLC 90-839; Connors v Douglas (1981) 7 Fam LR 360; In re R (1985) FLC 91-615.
Department of Aboriginal Affairs, Doc.B.10.3 (January 1980) 3.
SWA Report, 31.
R Chisholm, Black Children: White Welfare? (1985), 108-111. cf R Chisholm, ‘Destined Children. Aboriginal Child Welfare in Australia: Directions of Change in Law and Policy’ (Part I) (1985) 14 ALB 6, 8. The Secretariat for National Aboriginal Islander Child Care (SNAICC) has rejected the Report on the basis that it fails to address issues of funding legislation and decision-malting powers for Aborigines and Islanders: First Interim Report on the Aboriginal Fostering and Adoption Principles and its implementation in the States of Australia, Fitzroy, Victoria, June 1985, 7.
ALRC Research Paper 4, 19. For an example of State guidelines see Victorian Department of Community Welfare Services, Policy Guidelines in Aboriginal Adoption and Foster Care (June 1979). The Northern Territory Minister for Community Development (J Robertson MLA) endorsed the need for ‘full consideration of Aboriginal cultural factors’ to be reflected in adoption law and practice: Submission 331 (18 May 1982), and cf J Burdett, Minister for Community Welfare (SA), Submission 335 (27 May 1982).
For Aboriginal responses to the SWA Report, and the Commission’s views see para 365.
Based on the guidelines prepared by the DAA, they seek to ensure that the removal of Aboriginal children from their families is only undertaken as a last resort. Measures aimed at retaining the Aboriginal child in the community environment are supported for example the recognition of Aboriginal customs and the provisions of specialist Aboriginal services. The involvement of a nominated Aboriginal organisation in adoption cases and the Aboriginal Child Care Agency in fostering cases is provided for.
Department of Community Welfare, ‘statement on Fostering of Aboriginal Children’ (July 1983). The policy of placement of Aboriginal families in Aboriginal communities is affirmed, as is the involvement of Aboriginal Child Care Agencies or ‘local Aboriginal groups or members of the Aboriginal community’. In relation to fostering preferred placements are set out. These emphasise the importance of the extended family and kinship ties. See also para 364.
Department of Community Welfare, ‘Aboriginal Child Placement’ (December 1983). These guidelines set out an Aboriginal placement principle emphasising the extended family and consultation with the Western Australian Aboriginal Child Care Agency.
Department of Children’s Services, ‘Draft Statement of Policy and Procedures in Relation to Aboriginal and Islander Fostering and Adoption’. The Queensland policy seeks to ensure that indigenous factors are taken into account in the placement of children. Preference is given to placement within the extended family to be followed by a placement within the correct kin relationship or, should this be available, within the Aboriginal community. It states that wherever possible decision-making at all levels should actively involve consultation with ‘relevant representatives from the Aboriginal and Islander Community’.
Department of Community Development, ‘Aboriginal Child Welfare, Procedures, Aboriginal Child Placement’; ‘Aboriginal Child Welfare. Principles and Objectives’; ‘Aboriginal Child Welfare Policy Guidelines’.
Department of Youth and Community Services, ‘Policy Statement: Intake of Aboriginal Children Coming into Care and Detention’. This policy states that the Aboriginal community is to be involved in ‘any case, conference or other meeting convened to make a decision’ about the future of an Aboriginal child that is ‘likely to enter care or already in care’.
Tasmania has no formal or stated policy on this question.
Community Welfare Act 1983 (NT) s 69. See para 360.
Adoption Act 1984 (Vic) s 50 (not yet proclaimed); Children (Guardianship and Custody) Act 1984 (Vic) s 12(5)(12).
See para 359-64 for an outline of State and Territory legislative initiatives