Family Law and Customary Law

Aborigines inhabited the state of Western Australia for well in excess of 30,000 years prior to European settlement and for at least 31,000 years in the south west of Western Australia prior to Captain Stirling’s arrival.1 In the traditional Aboriginal society that existed prior to European settlement—and which continues for many Aboriginal families today—children had a special place in the extended family network developed on kinship lines.2 This was unlike European-British society at the time of settlement, in which a father was generally the guardian of his children and so held parental legal power. Despite this legal arrangement, in most cases the mother undertook the role of nurturing and caring for children. The pattern of the biological family being predominantly responsible (both legally and in fact) for child-rearing remains the norm in contemporary non-Aboriginal Australian families. In contrast, in traditional Aboriginal society child-rearing was, and is, the responsibility of the extended family or other members of the tribe. However, the fact that, at some particular stage, someone other than the biological parents may undertake the primary care of a child does not mean that parental ties are severed or that the parents have relinquished their parental rights or love for that child. Another key cultural difference in family life is that Aboriginal children have traditionally been allowed greater freedom of movement than in non-Aboriginal families and less attention is placed on material comfort, discipline and training.3