Judges should rule on law and facts, not feelings

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.

More important, indulging victimhood opens the court to game-playing. Recently, the Family Court heard a dispute between an Aboriginal parent and a non-Aboriginal parent over custody.

The Aboriginal father had significant problems with alcohol and violence, and was verbally and emotionally abusive to the mother. Nevertheless, the judge was bound to consider the father's desire to "immerse" his child in Aboriginal culture.

The difficulty for the judge was that the Aboriginal father was not the only contender in the culture war. The mother was Irish Catholic and wished to return to Ireland with the child.

Until the father was about 19, he, his parents, their extended families and siblings were identified, and self-identified, as Anglo-Australians.

None of his relatives was identified by the community or claimed to be Aboriginal.

When the father was about 19, his paternal grandmother told him she was Aboriginal.

The revelation "commenced a process of self-discovery on the part of the father" and he began to identify as Aboriginal.

The mother observed that "I have never witnessed anything that suggests to me that he adheres to or practises anything inside that culture outside of his employment (at a university)."

The judge decided that, "on balance, I am satisfied the child is Aboriginal", and then went on, "so that it is clear, I am also satisfied the child is Irish".

The Aboriginal father was not satisfied that his heritage had been given sufficient weight and appealed (Sheldon & Weir 2011). He asserted that the trial judge had been prejudiced against him.

The grounds were that the trial judge had asked: "Does (the ­father) have as part of his DNA … a link to his Australian indigenous origins?

''I mean, it is plain that (the father) is notably fair, so presumably he has DNA connection into non-indigenous origins as well?"

The father's appeal was dismissed; the judge was not biased simply because she asked a pertinent question.

It might assist the court if in such cases the claim to Aboriginal heritage were tested scientifically. Apparently DNA tests cost only a couple of hundred dollars.

Australian courts do not want judges with attitude. Australians want judges who interpret the law in the light of the facts.

If they can't do the job they should resign.