## Facts

- C was a two-year-old girl of mixed Aboriginal and non-Aboriginal parentage; the mother was Aboriginal and the father was non-Aboriginal.
- The parents’ relationship was unstable and involved significant social difficulties, including substance-dependence concerns.
- After a failed reconciliation, the mother returned to Victoria for rehabilitation and later lived with family; the father remained in Tasmania with C.
- At trial, custody was awarded to the father with access to the mother.
- A court-appointed separate representative (under Family Law Act 1975 (Cth) s 68L) sought to adduce expert evidence about harms historically associated with placing Aboriginal children with non-Aboriginal carers and the effects of cultural disconnection.
- The trial judge excluded the expert evidence, characterizing the dispute as an ordinary custody matter and declining to engage with matters framed as “political controversies” concerning Aboriginality.

## Issues

1. Whether the child’s Aboriginality and connection to Aboriginal community and culture were relevant considerations in determining best interests.
2. Whether the trial judge erred by excluding expert evidence on the welfare consequences of removing an Aboriginal child from Aboriginal family and community support.
3. Whether the separate representative was entitled (and potentially obliged) to raise and pursue Aboriginality-related issues, including by calling expert evidence, in advancing the child’s best interests.

## Decision

- The Full Court allowed the mother’s appeal and dismissed the father’s cross-appeal.
- The Court held that Aboriginality and the consequences of cultural and community separation were relevant to the statutory best-interests inquiry.
- The Court found error in the exclusion of the expert evidence tendered by the separate representative.
- The Court endorsed the separate representative’s role in raising Aboriginality-related welfare issues on the child’s behalf.
- The Court ordered a rehearing so that the relevant evidence could be admitted and properly weighed.

## Legal Principles

- In parenting proceedings, the child’s welfare/best interests are paramount, and the inquiry must account for the child’s identity, culture, and community connections where they bear on welfare.
- Evidence concerning Aboriginality and the likely effects of cultural dislocation is capable of being directly relevant to best interests and should not be excluded as merely “political.”
- Treating a custody dispute involving an Aboriginal child as indistinguishable from any other dispute, without considering the specific context of Aboriginal identity and discrimination risks, may constitute legal error.
- A separate representative appointed to advance a child’s best interests may properly investigate, test, and present cultural-identity and community-connection evidence when it may affect welfare outcomes.

## Conclusion

The Full Court set aside the parenting determination and ordered a rehearing, holding that the child’s Aboriginality and related expert evidence were relevant to best interests and that the separate representative acted properly in seeking to present that evidence.


B v. R & Separate Representative, 127 F.L.R. 438 (Fam. Ct. Aust. Full Ct. 1995)