377. The Present Institutional Framework. Any remedy proposed for problems of Aboriginal child custody and adoption will have to cope with the variety of forms which placement or custody decisions can take in Australia, and with the complexity of the judicial and administrative arrangements for making such decisions. The forums for consideration of cases of child custody (including Aboriginal child custody) vary, according to the nature of the case in question (for example federal or State matters), and in matters of State jurisdiction from State to State. The Chief Justice of Australia has referred to:
the confusion and inconvenience that is caused by the fact that jurisdiction in cases relating to the custody of children is divided between State and Federal courts. Not only are the parties left uncertain as to the proper forum, thus causing costs to mount and delays to increase, but there is no one court which can determine the custody of the two children in the present case notwithstanding that they are half brother and half-sister.
Unless Aboriginal spouses are married under the Marriage Act 1961 (Cth), the Family Court’s jurisdiction does not apply, but even apart from federal complications the pattern of family jurisdictions in Australia is a complex one.
378. The Family Court of Australia and State Courts. In determining custody disputes over children, the Family Court has jurisdiction over the custody of a ‘child of a marriage’ between parties to the marriage and in certain other circumstances. Children of Aboriginal traditional marriages are not as such within the Family Court’s jurisdiction. The Family Law Act 1975 (Cth) gives each State an opportunity to establish a Family Court, but Western Australia has been the only State to do so. The Western Australian Family Court has extensive jurisdiction (to the exclusion of the WA Supreme Court) in matters such as adoption and the custody of ex nuptial children. The Victorian Aboriginal Legal Service contended that:
… the failure of the Family Law Act to apply in this situation, thereby requiring the parties to go through the cumbersome and often intimidating Supreme Court proceedings, is an area requiring urgent reform.
As this submission points out, Supreme Courts retain family law powers under State legislation over the custody and maintenance of children who are not children of a marriage as defined in the Family Law Act 1975 (Cth) or between parties to a custody dispute for whom the Family Court is not available. Custody disputes over children of an Aboriginal traditional marriage will usually have to be brought before a Supreme Court. Supreme Courts also have the power, of particular relevance to Aboriginal children, to make a child a ward of court and to supervise the child in a variety of ways.
379. Other Forms of Child Care Arrangement. Apart from the Family Court of Australia, the Family Court of Western Australia, and State Supreme Courts, a number of other courts and authorities exercise jurisdiction over child care matters. These include:
Adoption Courts/Authorities. Adoption orders can generally only be made by judicial order, after a court or tribunal has considered the welfare of a child and determined that the parent’s consent has been given (or properly waived). The actual arrangements vary considerably from State to State.
Children’s Courts. Each State and Territory has a children’s court (or courts). These are usually constituted by special or stipendiary magistrates who are not full-time children’s court judges, although there is a trend towards specialist children’s court judges (as in South Australia). Children’s courts generally have primary or exclusive jurisdiction over offences committed by children and young persons up to the age of 17 or 18. Amongst other things children’s courts can play an important role in the process of placing children under State control, whether in their criminal jurisdiction or by way of their ‘welfare’ or ‘protective’ jurisdiction.
Administrative Custody. A child may come into the custody, or care and control, of the State (represented by the Minister or the Director General of Community Welfare Services or their equivalents) as a result of an order of a children’s court. Alternatively a child may be declared a ward of the Minister or placed in State custody on application by or with the consent of the child’s custodian. Once a declaration or order is made in this way it is not revoked or cancelled merely because the parents or guardians of the child wish the child to be returned: such orders are, to that extent, coercive, and may have to be set aside by judicial order (eg by the Supreme Court).
Fostering. The term foster care can be used to cover a variety of child care arrangements from formal governmental wardship arrangements to the more informal arrangements which may develop between parents, other family members and friends. The notion of foster care is familiar in the literature of social work. However, it is not a technical legal term. It is used in specific legislation to refer to situations where, custody having been transferred to the State or the Child Welfare Department, the Minister or Director boards the child out with people or organisations approved by him. Fostering may be a long or short-term arrangement, but in either event it does not involve a transfer of guardianship or parental rights to the foster parents and is revocable by the Minister or Director-General unless steps are taken to formalize the position through an adoption order. There are restrictions on informal or unsanctioned fostering arrangements, in some States at least, which might cut across traditional child-caring practices in Aboriginal extended families.
380. Jurisdictional Reform. The present complicated structure of child custody jurisdictions in Australia creates particular problems for many Aborigines and adds to the confusion they (and other Australians) often experience in having to deal with family law issues. The question is whether special jurisdictional provisions should accompany recommended reforms in laws relating to the recognition of traditional marriage and the placement of Aboriginal children. Three possibilities are open: to confer jurisdiction (exclusive or concur rent) on the Family Court of Australia (and the Family Court of Western Australia); to make provision for separate Aboriginal courts or forums to decide such issues; or to leave the present situation unchanged.
381. The Family Court of Australia. The question of extending Family Court (including State Family Court)jurisdiction over child custody matters consequent upon the recognition of traditional marriages was referred to in Chapter 14. There would be at least some advantages in such an extension. The Family Court of Australia is a specialist family court, with counselling facilities and other special provisions for dealing with child custody questions (eg provision for separate representation of children). Its orders have Australia-wide effect, pre-empting or excluding custody orders of State courts. On the other hand there are continuing problems over the boundaries of the jurisdictions of the Family Court and State courts in custody cases. Conferring exclusive jurisdiction on the Family Court over custody of Aboriginal children would only add to these conflicts and uncertainties, especially if the criterion of Family Court jurisdiction was the existence of a traditional marriage. If the criterion was simply the existence of a custody dispute with respect to an Aboriginal child, the scope for jurisdictional conflict would be reduced but not eliminated, since the definition of ‘Aboriginal child’ could well be an issue. It would be undesirable to have the Family Court’s jurisdiction depending on questions of fact of this kind. And on the latter assumption the Family Court’s custody jurisdiction would be much more extensive than it is now under the Family Law Act 1975 (Cth), since its jurisdiction over ex-nuptial children is a limited one. A more desirable approach might be to invest concurrent jurisdiction in the Family Court with respect to custody disputes involving Aboriginal children (whether or not ex-nuptial children). This approach was preferred by the Family Law Council. Such a provision would make the Family Court available to resolve custody disputes involving Aboriginal children, with the advantages already referred to. It would not deprive Supreme Courts of custody jurisdiction (except where a case was already pending before the Family Court), so that the possibility of jurisdictional conflict would be reduced. Power to transfer a case to a Supreme Court where appropriate could also be given to the Family Court (and a converse power to Supreme Courts). In exercising this jurisdiction the Family Court could be empowered to supersede the custody of a State child welfare authority, where this was necessary.
382. The Commission’s View. Apart from the possible conferral of concurrent Family Court jurisdiction with respect to custody cases in the strict sense, the Commission believes that it is undesirable to make general changes in existing judicial or administrative jurisdictions with respect to Aboriginal child custody cases as such. Given the present complicated arrangements in this area, further jurisdictional changes, however well intentioned, are likely to create further confusion. This argument has considerable force also in relation to any proposal for Family Court concurrent jurisdiction. In particular it is undesirable that a federal court’s jurisdiction should depend on the Aboriginality of the child in question, that is, on a question of fact which may be contentious and which would have to be determined as a preliminary question. On balance, it seems better to seek to resolve present difficulties through the conferral of custody jurisdiction on courts on a more general basis, rather than limiting the conferred jurisdiction to Aboriginal children or to the children of traditional marriages. For these reasons, no change in the present situation is recommended. Nor does the Commission recommend the creation of separate Aboriginal Courts to deal with custody matters, for the rea sons given in paragraph. 376. However the conferral of child welfare functions on particular groups or communities, pursuant to legislation or by agreement with the relevant Department, is another matter altogether. This has been the major avenue for change in Canada, and some steps are being taken, or are proposed, along these lines in Australia. State and Territory Departments should be encouraged to negotiate arrangements of this kind with Aboriginal groups or communities seeking greater participation in the child welfare system so far as it affects their children. Transfers of power of this kind will need to be properly funded and supported and (as in Canada) will need to reflect local requirements and demands. Legislative provisions allowing delegation are also necessary, to provide a secure basis for the exercise of statutory powers at the local level.
Fountain v Alexander (1982) 40 ALR 441, 449 (Gibbs CJ).
cf para 324.
Family Law Act 1975 (Cth) s 5.
The Court’s custody jurisdiction was extended in 1983, but still does not apply to most ex-nuptial children. See generally HA Finlay, Family Law in Australia, 3rd edn, Butterworths, Sydney, 1983, ch 6.
Victorian Aboriginal Legal Service, Submission 283 (20 May 1981) 2.
See J Crawford, Australian Courts of Law. Oxford University Press, Melbourne, 1982, 203-4; Finlay, ch 10.
Crawford, 204, 207; but cf Community Welfare Act 1983 (NT) s 9(b), 62.
eg Community Welfare Act 1982 (NSW) s 70-1.
See para 385.
See para 324. The term ‘custody’ here refers to custody in its ordinary legal sense, not in the extended sense used elsewhere in this Chapter.
See para 367.
‘In either event the jurisdiction should be concurrent because of the factual and geographic problems which may otherwise arise …’ Family Law Council, (Justice JF Fogarty) Submission 393 (28 November 1983) 2.
It would be desirable, in consequence, to provide Aboriginal counsellors as part of the counselling service of the Court.
That power was held not to be validly conferred on the Family Court under the Family Law Act 1975 (Cth), because of the restricted ambit of the marriage power (Constitution, section 51(21)): R v Lambert, ex p Plummer (1981) 32 ALR 505; but it could probably be validly conferred under the ‘races’ power, s 51(26).
See para 357, 375.
See para 360, 375.