B v. R and Separate Representative

C was a toddler whose mother (plaintiff) was an Aboriginal Australian and whose father (defendant) was a White Australian. The relationship between the mother and father was marred by domestic violence and alcohol abuse. The mother entered residential treatment for alcoholism while the father cared for C. Without the mother’s consent, the father and C moved to a different area away from the mother. At trial on the custody matter, C was represented by a separate representative, known in other jurisdictions as a guardian ad litem. The separate representative presented the testimony of an expert witness who testified about the disastrous practice of placing Aboriginal children in non-Aboriginal families, causing tremendous physical and emotional trauma to the children and community. At best, non-Aboriginal families were unable to give Aboriginal children the support they needed to cope with racism. At worst, non-Aboriginal families denigrated Aboriginal culture in an attempt to force Aboriginal children to assimilate. The expert concluded that Aboriginal children must be placed with Aboriginal families to prevent the trauma of the loss of Aboriginal identity and support of the Aboriginal community. The separate representative argued that the expert’s testimony was relevant to show the effects that C could suffer if she remained with her non-Aboriginal family. The trial court refused to admit the testimony, stating that the matter was the same as any custody dispute between two Australians and that the court would not involve itself in political controversies. The court placed C’s custody with the father, and the mother received visitation rights. The mother appealed, arguing, among other things, that the trial court wrongly excluded the expert witness’s testimony.