Judges should rule on law and facts, not feelings

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?"