Sunday, 5 December 2010

Family Court: no loss to child being with a Chinese mother

The Full Court of the Family Court recently upheld a decision of  a Federal Magistrate that there were benefits to a child living with his Chinese-Australian mother, and not the detriments portrayed by the father that the child would be immersed in a Chinese environment and lose his English skills.

The Full Court stated, in the case called Edelman and Zu (No. 2):


At paragraph 77 of his reasons under the headings “Other Considerations” and “Cultural issues”, the Federal Magistrate noted the mother has a Chinese heritage and explained at paragraph 78:Whilst [the child] has been raised in Australia, it is nevertheless important to him that he have the opportunity and ability to maintain contact with his mother’s cultural heritage. I do not consider that the father is likely to promote that aspect of [the child’s] development.
  1. At paragraph 79 of his reasons, the Federal Magistrate assessed there would be a benefit to the child living with the mother in that he was likely to be bilingual speaking both English and Mandarin as compared to living predominantly with the father who did not speak Mandarin.
  2. At paragraph 80, the Federal Magistrate dealt with the assertions made on behalf of the father that if the child lived with the mother he would become “immersed in the Chinese culture; that he will lose his English skills and that he will ultimately suffer disadvantage if he lives predominantly with his mother”.
  3. Significantly the Federal Magistrate, who had the opportunity to see and assess the mother in the witness box, concluded:
... Whilst I accept that the mother is likely to find work within the Chinese community in Brisbane and she is likely to socialise with other Chinese families, I was not satisfied that she has an intention to immerse [the child] in that culture to the detriment of his Australian culture...
  1. The Federal Magistrate went on to find the mother had good English skills and that he considered she wanted to assimilate herself into Australian society which she saw in broad terms as providing “benefits for her sons in having a strong connection to both communities”. The Federal Magistrate found “[u]ltimately I would see greater benefits for [the child] in the mother’s approach to his cultural identity than the father’s approach”. This finding was replicated by the Federal Magistrate in his conclusions in paragraph 97(f).
  2. In the Marriage of Goudge, Evatt CJ, in dealing with a ground of appeal asserting the trial Judge had failed to give sufficient weight to the mother’s Aboriginal heritage, said at page 509:
The appellant’s submissions on these points raise matters which are both important and difficult to determine. The court is reluctant to make value judgments as to the merits of differing cultural, religious or ethnic heritage: see Sanders and Sanders [1976] FLC 90-078 at 75,374; N and N [1981] FLC 91-111 at 76,828-9. 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.
  1. Her Honour went on to note:
The submission put by the appellant, however, was not that a preference should be expressed for the culture and background available to these children as part Aboriginals, but that it should be regarded as a positive feature, able to provide something worthwhile to these children. This was coupled with the submission that the father would prefer to shut out this aspect of the children’s lives, that he did not accept the children’s Aboriginality and saw it as damaging...
  1. Her Honour therefore explained matters of differing cultural heritage were “another indication that cultural factors are to be given weight in deciding the welfare of children”. Her Honour said, at pages 510-511, “[m]any cases arising under the Family Law Act involve children who have real connections with two different cultural, racial or religious backgrounds” and later observed “[t]he relevance of such factors must, of course, vary from case to case depending on the individual circumstances”.
  2. We are satisfied in the circumstances of this case the Federal Magistrate did no more than the statute required him to do as part of his overall consideration of the additional consideration and no appealable error is demonstrated.

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