By Amanda Humphreys, Special Counsel and Amy Toomey, Associate

An intolerable situation? Return of a First Nationals Australian child overseas under the Child Abduction Convention

In Bamfield, Justice Bennett of the Federal Circuit and Family Court of Australia was asked to make orders for the return of a young child to Belgium pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980.

The child was born in Belgium in early 2020 to an Australian mother who identifies as a First Nations Woman, and a Belgian father. The child had travelled to Australia with her mother when she was seven months old, for an agreed trip of two months. During their agreed travel to Australia, the mother informed the father that she and the child would not be returning to Belgium.

Child’s Aboriginality and the mother’s assertion of an intolerable situation

After determining the child’s place of habitual residence to be Belgium, Justice Bennett of the Federal Circuit and Family Court of Australia was required to consider the exceptions to the child’s mandatory return to Belgium under the Child Abduction Convention as implemented in Australia. (For a summary of Justice Bennett’s consideration of the child’s place of habitual residence in this case, see separate case note here)

The mother asserted the return of the child to Belgium would place the child in an intolerable situation, because her Aboriginality would not be taken into account by the courts in Belgium in the same way as it would in Australia. Justice Bennett summarised the asserted deficiency as follows:

First, in Australia there is a specific legislative requirement that in making any parenting order the court have regard to an Aboriginal child’s right to enjoy her culture with other people who share that culture and the likely impact any proposed parenting order would have on that right.  Second, that judges in courts of competent jurisdiction in Belgium have not had, and could not be expected to have had, specialised training in relation Aboriginal culture.

Justice Bennett first considered the application of the test from Mabo (No 2) [HCA] 23, as to how a person is considered to be a First Nations Australian or Aboriginal person for the purposes of Native Title (confirmed in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 in the context of immigration), being:

(a)          the person is a member of the Aboriginal race;

(b)          the person identifies as an aboriginal person; and

(c)          the person is accepted by other members of the Aboriginal community as an aboriginal person
                (based on biological descent and recognition by elders or other persons enjoying traditional authority among those people).

Justice Bennett also considered Attorney-General (Cth) v Queensland [1990] FCA 358, a decision which canvassed the definition of Aboriginality as it related to a boy. In that case, Justice French concluded in a different context that a finding of Aboriginality on the basis of descent was sufficient, given the “evolving social perception of what constitutes” the definition of Aboriginality.

Her Honour then turned to the definitions of “Aboriginal child” and “Aboriginal culture” in the Family Law Act and was content that the child fell within the definition of an Aboriginal child being “a child who is a descendant of the Aboriginal people of Australia”.

Her Honour acknowledged the “common…feeling of responsibility” within the Australian community for the treatment and plight of First Nations Australians, including as recognised by Royal Commissions and in the national apology, and of the importance of judicial education for judicial officers before whom First National Australians regularly appear.

The mother contended an inference should be drawn from a summary prepared by a family law advocate in Belgium, which made no reference to a requirement for courts in Belgium to give consideration to a child’s cultural heritage. Her Honour declined to draw that inference, noting that Belgium was a signatory to the United Nations Convention on the Rights of the Child, which recognises the right of children and young people of a minority group to share their culture, language, and religion with other people in that group.

Justice Bennett did agree that the Australian courts, as opposed to the Belgian courts, “may place greater significance upon a child’s Aboriginal culture in a determination of their best interests” by virtue of specific provisions in the Australian Family Law Act, but found:

…that is not to say that X’s Aboriginality will be accorded insufficient or no weight. I expect that much will turn on how the mother presents her case and the extent to which the mother can demonstrate how X will be advantaged by the outcome she seeks. At the moment, X is 20 months old. The mother can do a lot to nurture and encourage X’s interest in the culture of First Nations Australians. … the intolerable situation … must be a situation which arises on return and not a situation that might emerge at some later indeterminate time if, after return, an unsatisfactory situation is allowed to persist without alteration or attention.

Justice Bennett’s ultimate finding was that the mother had not established the return of the child to Belgium would place the child in an intolerable situation. Accordingly, orders were made for the child’s return to Belgium (accompanied by the mother, if she so chose) for a proper assessment of her interests to be undertaken by the Belgian courts as her place of habitual residence.

Her Honour acknowledged there may be a “narrow band of cases” where it would be appropriate to consider the expertise of an Australian court in dealing with issues relating to First Nations Australians. For example, where a court is satisfied that an exception to return is made out and has a discretion to refuse return. However, she found this was not such a case.

Department of Communities and Justice & Bamfield [2021] FedCFamC1F 263