LA1103 - Critique and Case Note: The case of B v R
This essay was the major assessment for LA1103 at JCU Cairns in 2016. The essay was required to select one of five cases, and provide a critique which demonstrated knowledge of the case, and an understanding or awareness of issues related to the case. The numbers within all essays on this site are citations, which use the Australian Guide to Legal Citation. Each citation can be checked at the end of the essay, which provides the location for quote or idea. It is one of the first lessons at law school. Whenever you assert an idea that is not your own or is relevant to your argument the obvious challenge is to be asked "on what authority do you base this?". By using citations you can back up your argument, and provide it with strength. As with any assessable essay I've written and published on Mr Lawyer Man, and within the study of law, you may find you agree or disagree with my proposition or point of view. The study of law requires an ability to exercise perspective. The ability to understand the strengths and weaknesses of arguments different to your own will help you find common ground upon which to resolve a dispute.
This essay assessment grade: High Distinction
Paul's LA1103 course grade: Distinction
B v R is a 1995 decision of the Full Court of Family Court of Australia consisting of judges: Fogarty, Kay and O’Ryan JJ. The parties: B – the appellant (mother); R – the respondent (father) and separate representative of C, the child.
The aboriginal mother and white father had lived in several locations over several years. There were issues with drug and alcohol dependency, and siblings were involved. After a failed reconciliation in Tasmania, the mother returned to Victoria and a further course of alcohol rehabilitation, before settling to live with family in Portland. The father and child remained in Burnie, Tasmania. In April 1995, Family Court of Australia trial judge Walsh J awarded custody of the two year old girl to the father, and access to the mother. In May 1995 the mother appealed the custody order; the father subsequently cross appealed. The Full Court decided: Mother’s appeal allowed and re-hearing ordered. The ratio: evidence relating to aboriginality is relevant; separate representative was responsible and entitled to ask questions regarding issues of aboriginality on behalf of the child
The Full Court found Walsh J was in error to regard the question of aboriginality as separate to the issue of welfare of the child, and ‘inconsistent with provisions of the Family Law Act 1975 (Cth)’ (FLA). The Full Court found a ‘marked reluctance’ throughout the trial to the notion the child’s aboriginality was due greater weight than if, as exampled by Walsh J, the child was ‘Mauritian or a Lebanese or a Greek.’ Notably in the judgement, the Full Court believed the trial judge erred in his handling of the separate representative, frustrating the separate representative’s entitlement under s 64 FLA to ask questions on behalf of the child. Walsh J had said “I have a pretty clear state of mind regarding the role of the separate representative and I think it should be a limited role …”
II. CULTURE AND LIBERALISM IN B v R
When a judge has a ‘state of mind’ to interpret the law, liberalism—via judicial activism—is at play, where the judge sets about deciding what the law should be, possibly setting aside what the law is. To prevent a harm, to clarify perceived gaps—or ambiguity—in the law, a liberalist judge may embark on a journey of interpretation to satisfy the particulars of the case before him or her. Australia’s stereotypical and predominantly white judiciary are the “chief actors in the drama” with attitudes “traced to upbringing, social class and education.” A question then arises from whose cultural perspective or dominant social group the decision seeks to satisfy. This critique looks at the B v R through a lens of liberalism, from the perspective of aboriginal culture in an historical context, and why there may be a need—or desire—for judges to step outside the rule of law when faced with a cultural dilemma and away from the application of the equality principle.
An example of placing B v R in an historical context is The Aboriginal Ordinance 1918 (Cth) which allowed the Commonwealth (in the Northern Territory) to remove aboriginal children—and any ‘Half-caste’—and place them in institutions. (With s 51(xxvi) of the Australian Constitution still valid, there remains an administrative option like enabling NTER).Together with the colonisation of Australia as terra nullius, the White Australia policy,  and the Stolen Generation, Australia arguably has an unimpressive track record regarding the treatment of indigenous Australians. For instance, in 1938-1939, Australian states (including Queensland) with the largest indigenous populations spent on average £1 per year on each inhabitant of aboriginal settlements, in contrast to the £42.10s per year paid to non-indigenous pensioners. In the Tasmanian Dam case Murphy J wrote “The history of aboriginal people of Australia since European settlement is that they have been the subject of unprovoked aggression, conquest, pillage, rape brutalization, attempted genocide and systematic and unsystematic destruction of their culture.” This brief insight into the historical aboriginal-white Australia relationship is included to draw a link from the past, directly to the case of B v R. This short history review indicates a difficult cultural relationship embedded between the culture of the first Australians, and the dominant culture that established legal first contact over 200 years ago. In B v R, three older white male Australian judges must navigate a decision upon this tide of history, when deciding where an aboriginal child should live.
History would have been on the side of the trial judge when he suggested, in theory and according to the liberalist approach of equality before the law, an aboriginal child should be no different to a ‘Mauritian or a Lebanese or a Greek.’ If B v R were about a white Australian father and Greek mother living in Melbourne, the issue of access to culture would not be so fraught, with ready access to events and culture in that city. Instead of simply applying a liberal approach to provide—favour—the child’s access to culture, the Full Court was influenced by the international community under Article 30 of the 1989 UN Convention on Rights of the Child (CRC) which states: “You have the right to practice your own culture, language and religion - or any you choose. Minority and indigenous groups need special protection of this right.” In addition s 60CA of the FLA requires “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” Both Article 30 and s 60CA direct the judges towards formalism and the application of the law as it is, but ambiguity remains and requires the judges to interpret the law as it is, and guide it towards what it could be. Any interpretation of what ‘best interests’ and ‘paramount consideration’ means, requires an exception to the standard liberalist approach, which posits the State only interfere in private matters to prevent a harm, in this case, to protect the child from the harm of not knowing her culture. If the Full Court had ignored the aboriginality of the child and treated her equally as if she was a ‘Mauritian or a Lebanese or a Greek’, they would have delivered a harm: to deny the child access to her culture. To prevent a harm appears a significant basis upon which B v R adheres to the principle of liberalism, where the Full Court judges interpreted the law by applying value judgements. The question of how a liberal judge might approach value judgements—to prevent a harm and decide on positive features for the child’s best interest as a paramount consideration—was raised by Evatt CJ In The Marriage of Goudge: 
The Court is reluctant to make value judgments as to the merits of differing cultural, religious or ethnic heritage . . . In any event, these children are of mixed race, and in so far as there are significant differences between the cultural heritage and identity of each of their parents, it is not for this Court to prefer one over the other on that ground…The submission put by the appellant, however, was not that a preference should be expressed for the culture and background . . . that it should be regarded as a positive feature, able to provide something worthwhile to these children”.
A critique of B v R without the perspective of Australia’s aboriginal history, would be incomplete. Through the learned eyes of Fogarty, Kay and O’Ryan JJ there appeared a need for a liberal approach, away from the strict formalism of the trial judge. Before them, an aboriginal child needing access to culture, behind them the immoral myth of Terra Nullius. In front of the judges, a white father and aboriginal mother in separate states asking for custody of a child, in the background colonial Australia, the white Australia policy, and the Stolen Generation. It would be a deficient critique of B v R to not regard the meta-narrative of the culture clash within Australia’s history, including the s 51 constitutional instruments still on the books. At the time of settlement, indigenous Australians were excluded from the law but in cases like B v R, and it could be posited any modern day legal argument regarding aboriginal access to culture, Australia’s indigenous are now encased within the law. Moving ahead the courts will still draw breath from the past and exhale it into the future, guided by the evolution of law but not necessarily the rule of law. Inconsistencies with access to aboriginal culture and the principle of equality before the law will remain difficult but treating all equally may do a harm. In 2015 Andrew Jackomos observed ‘Culture is the most resilient factor protecting our children. Culture links us to our past so we can navigate our future.’ It appears Australian courts may need a continued liberalism perspective regarding questions of aboriginal culture in the ongoing discourse between society as a whole, and aboriginal and white Australia as parts, to craft a united passage forward.
Word count: 1500 net (excluding 15 words in headings).
Abela, Ms Calo L and Mr Victor G. Borg, ‘Ethnic Diversity and Children’s Rights” Recognition of Culture in Law and Practice with particular reference to The Family Law Court of Australia’ (Paper presented at Third National Family Court Conference, Sofitel Hotel Melbourne, 21 October 1998)
Bottomley, Steven and Simon Bronitt ‘Law In Context’ 2016 The Federation Press 131
Commonwealth of Australia, ‘Bringing them home: Report of the national inquiry into the separation of Aboriginal and Torres Strait Islander children from their families’ (1997) Sydney: Human Rights and Equal Opportunity Commission
Commonwealth of Australia, ‘The Recognition of Aboriginal Customary Laws 1986 31 Australian Law Reform Commission 17
Cripps, Kylie and Julian Laurens, ‘Protecting Indigenous Children's Familial and Cultural Connections: Reflections on Recent Amendments to the Care and Protection Act 2007 (NT)’ (2015) 8(17) Indigenous Law Bulletin
Hale, Andrew, ‘Aboriginal Children and Family Law’ (1998) 72(2) Law Institute Journal
Heydon, Dyson, “Judicial Activism and the Death of the Rule of Law’ (2004) 10 Otago Law Review
Jackomos, Andrew, ‘International Human Rights Day Oration Linking Our Past With Out Future: How Cultural Rights Can Help Shape Identity and Build Resilience in Koori Kids’ (2015) 8(17) Indigenous Law Bulletin
Justice Michael Kirby AC CMG, ‘Black and White Lessons for the Australian Judiciary’ (2002) 23 Adelaide Law Review
Nakata, Sana, ‘Representing Indigenous Australian Childhoods’ 2015 8(17) Indigenous Law Bulletin
Ralph, Stephen, ‘The Best Interests of the Aboriginal Child in Family Law Proceedings’ (1998) 12(2) Australian Journal of Family Law
Ruska, Keryn and Zoe Rathus, ‘The Place of Culture in Family Law Proceedings: Moving Beyond the Dominant Paradigm of the Nuclear Family’ (2010) 7(20) Indigenous Law Bulletin
Turner, Neville J, ‘The Suffering of Children in Central Australia’ (1997) 71(4) Law Institute Journal
B v R (1995) 127 FLR 438
Commonwealth v Tasmania (1983) 46 ALR 625
In the Marriage of Goudge (1984) FLC pp.79,317-9
In Marriage of McL: Minister for Health and Community Servics (NT) (Intervener)  FLC 78,615
Family Law Act 1975 (Cth)
Northern Territory National Emergency Response Act 2007 (Cth)
The Aboriginal Ordinance 1918 (Cth)
UN Convention on Rights of the Child, opened for signature 20 November 1989, UNTS 1577 (entered into force 2 September 1990) art 30.
 (1995) 127 FLR 438.
 Ibid 443.
 Ibid 472.
 The Hon Justice Michael Kirby AC CMG. Black and white lessons for the Australian judiciary. Adelaide Law Review (2002) 23 195, 211.
 In Marriage of McL: Minister for Health and Community Servics (NT) (Intervener)  FLC 78,615, 78 622.
 Aboriginals Ordinance 1918 (Cth) s 6(1); (1995) 127 FLR 438, 447.
 Aboriginals Ordinance 1918 (Cth) s 3.
 Neville J Turner ‘The suffering of children in Central Australia’ Law Institute Journal (1997) 71 (4) 54, 55
 s 51(xxvii) allows the Commonwealth to make laws for ‘the people of any race for whom it is deemed necessary to make laws’.
 Northern Territory National Emergency Response Act 2007 (Cth) which is ‘An Act to respond to the Northern Territory’s national emergency, and for related purposes. NTER did not rely on s 51(xxvii) but s 51(xxxvii).
 Andrew Jackomos, ‘International Human Rights Day Oration Linking Our Past With Out Future: How Cultural Rights Can Help Shape Identity and Build Resilience in Koori Kids (2015) 8(17) Indigenous Law Bulletin 20.
 Abolition of the ‘White Australia Policy’ <www.border.gov.au/about/corporate/information/fact-sheets/08abolition>.
Commonwealth of Australia. Bringing them Home - Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997) and The recognition of Aboriginal customary laws 1986 (BR 449).
 Ibid 26 .
 Commonwealth v Tasmania (1983) 46 ALR 625, 737.
 Stephen Bottomley and Simon Bronitt ‘Law In Context’ 2016 The Federation Press 131 .
 Kay J retired from the Family Law Court 15 February 2008; O’Ryan J retired and returned to private practise March 2011; Fogarty J deceased 3 October 2013.
 The Greek Community of Melbourne <http://www.greekcentre.com.au>.
 Australia ratified the CRC 17 December 1990 which entered into force 16 January 1991. <https://www.humanrights.gov.au/publications/australias-commitment-childrens-rights-and-reporting-un>.
 In the Marriage of Goudge (1984) FLC at 79,317-9.
 Above n12.
 The Recognition of Aboriginal Customary Laws 1986 31 Australian Law Reform Commission 17.
 Abolition of the ‘White Australia’ Policy <www.border.gov.au/about/corporate/information/fact-sheets/08abolition>.
 Above n13.
 Above n17 124.
 Above n17 153-5.
 Above n12.