By JR on Tuesday, December 13, 2011
THE Family Court has declared a "notably fair" [skinned] man to be a "proud Aborigine" despite both his parents saying they are white.
The court was asked to consider the matter after the man, who was raised white but began identifying as an Aborigine in 1999, got an Irish backpacker pregnant. She wanted to go home to Ireland with their baby daughter, but the Family Court is required by law to give special consideration to Aboriginal children, and their need to retain links to their culture and heritage.
This would normally mean that an Aboriginal child could not be taken out of Australia to be raised by a non-Aboriginal parent.
The man, who is an academic in Newcastle and a member of various Land Councils and indigenous advisory bodies, told the court he had received a Certificate of Aboriginality in 2004, but the child's mother, known in court documents as Ms Weir, "did not accept (the father's) claim that he was Aboriginal".
She told the court that "during their relationship he did not attend Aboriginal Land Council meetings or community events. He did not bring Aboriginal friends home, nor did he socialise with members of the Aboriginal community". "At no time prior to the breakdown of the relationship had he discussed with her the Aboriginal people from whom he was descended, their language or culture, or suggested she and the child become involved with that culture."
The mother believed the father "called upon his Aboriginal heritage opportunistically" such as when "there is a job opportunity available".
She feared he intended "to use his daughter to further his own ambitions by sending her to a 'culturally appropriate Aboriginal pre-school' . . . the point being this would look good on his CV".
In an initial hearing last December, Family Court judge Maureen Ryan agreed the question of whether the father was Aboriginal was "contentious" even in his own family. "Until the age of 19, he and his parents, their extended families and siblings were identified (and self-identified) as Anglo Australians," Justice Ryan said. "None of his relations were identified as, or claimed to be, Aboriginal."
However, when the man, known in court documents as Mr Sheldon was 19 years old, his paternal grandmother called him to her sick bed to tell him some family secrets. She said she was part-Aboriginal but had always hidden her racial identity. She said that her first-born son had been fathered not by her husband, who is white, but by a married Aboriginal man.
These revelations "resonated with (Mr Sheldon) and he began a journey of self-discovery in which (Mr Sheldon) began to identify as Aboriginal".
The court heard that "the father's decision to identify as Aboriginal is, within his family, controversial". Besides his parents, he has a sister who was quoted in court documents as saying: "I am not Aboriginal. If he (Mr Sheldon) chooses to think he is, that's his choice." One of Mr Sheldon's brothers also "does not identify as Aboriginal" and his mother "understood her family's heritage to be French".
A third sibling does identify as Aboriginal, but does not speak to Mr Sheldon. The court said "because the parties do not agree that the father is Aboriginal, the question arose, how does someone prove it"?
There appeared to be no relevant Family Law precedent, so Justice Ryan examined "how other courts dealt with the issue". In most cases, it is enough for a person to identify as Aboriginal, provided others in the Aboriginal community accept the claim.
The father was described as having "little knowledge of his ancestry" but said his understanding of Aboriginal culture "continues to grow as I travel and yarn with other mobs".
The man's Certificate of Aboriginality was granted to him after his grandmother told local elders her story. He is also known in his workplace as Aboriginal.
Given all these factors, Justice Ryan decided, on balance, that Mr Sheldon had a "not insubstantial" amount of Aboriginal heritage (at least one, and possibly two grandparents on his father's side, who were at least part Aboriginal) and he was therefore well within in his rights to identify as Aboriginal.
"While I accept that his family does not to a person embrace his Aboriginality, on balance I am satisfied that the father is a proud Aboriginal," the judge said. Therefore, "on balance, I am satisfied the child is Aboriginal. So that it is clear, I am also satisfied that the child is Irish".
The father told the court that his child, now two-years-old, would "be denied the right to enjoy her Aboriginal heritage if the mother was allowed to take her out of Australia".
Justice Ryan acknowledged this problem, but decided to let the child go, in part because the police records revealed that the father had an explosive temper, particularly when drinking.
Shortly before the first Family Court hearing, he took his little girl away from her mother for 17 days and refused to allow any contact, despite repeated emails from the mother, pleading: "I implore you to allow me to spend some time with (her) . . . please can I see her at any time today? I am available all day and will go anywhere. I need to see her and she needs contact with me. I've not seen her in so long . . . let me know when I can have access."
The court heard that when the child was eventually returned to her mother, she had "dark patches under her eyes, her hair was matted and she had very bad nappy rash, and was coughing up phlegm . . . the child, who had previously been very vocal, was expressionless and barely spoke". "Softly, she repeated, 'Mummy?' as if she were asking a question."
Prior to being taken by her father for those 17 days, the child weighed 13kg. Upon return, after 17 days, she weighed 11.8kg.
The father appealed the decision to let the mother take the girl back to Ireland to be raised as a Roman Catholic, telling the court that Justice Ryan had "possibly" been prejudiced against him because she said, in court, that "it is plain that he is notably fair, so presumably he has non-indigenous origins as well?"
This, he said, was evidence that Justice Ryan had "sought to establish someone's cultural identity by the colour of their skin".
The Full Court, in a decision dated November 8 and published last week, could not see the logic in that argument. Justice Ryan had, after all, agreed that both the man, and his daughter, were Aboriginal, notwithstanding the fact his parents identified as white.
The Full Court upheld Justice Ryan's decision to let the child go to Ireland. Her mother has promised to "read story books related to Aboriginal culture" and to purchase "books, toys and jigsaw puzzles" with an indigenous theme so the girl might better understand her ancestry.