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Judges should rule on law and facts, not feelings

By Gary Johns - posted Thursday, 25 February 2016

Judge Matthew Myers and Chief Judge John Pascoe of the Federal Circuit Court have expressed concern that Aboriginal children are likelier than non-Aboriginal children to be taken from their homes. Indeed, they are, but what business is this of judges of the court?

On the anniversary of the apology to the Stolen Generations, they used the court to circulate a "message stick" expressing such concern.

The court shares with the Family Court responsibility for hearing matters under the Family Law Act. Various parties may bring an action before the court for the "custody" of children.


Given the judges express public statements about the plight of potential litigants of one group only, how can a litigant be confident their matter will be heard objectively if they are not part of that group?

There is an 11-year-old Aboriginal boy sitting in a West Australian jail on murder charges who might have been saved had he been taken from his family at an earlier age.

In NSW, for non-Aborigines, 65 per cent of the time the victim of an assault knows the assailant. For Aborigines, it is 89 per cent. For non-Aborigines, the assailant is a family member in 33 per cent of instances. For Aborigines, it is 54 per cent. There are good reasons Aboriginal children are taken from their families.

The group Grandmothers Against Removal protested in Canberra on February 11 about "forced" removals. Perhaps they should consider the following case in the Federal Circuit Court before they protest at the next anniver­sary of Kevin Rudd's apology.

The case concerned the custody of six Aboriginal children. The applicant was the maternal grandmother.

As a result of the children's neglect and regular exposure to drugs, alcohol and violence in their parents' household, the grandmother took the children to live with her.


In 2014, the NSW Department of Family and Community Ser­vices removed the six children from the grandmother's care because she was exposing the children to risk of immediate harm.

Although the children ultim­ately were returned to her care, the judge found she needed ­parenting education to "learn how to be truly protective of the ­children" (Drake & Drake & Anor 2014). The judge had a choice between bad and bad; the children were at risk whether they were left with parents or grandmother.

Passing around message sticks in the hope of "stimulating a ­national discussion" does not assist a judge to decide the case on the basis of the facts.

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This article was first published in The Australian.

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About the Author

Gary Johns is a former federal member of Parliament and served as a minister in the Keating Government. Since December 2017 he has been the commissioner of the Australian Charities and Not-for-profits Commission.

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