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The Forum > Article Comments > Judges should rule on law and facts, not feelings > Comments

Judges should rule on law and facts, not feelings : Comments

By Gary Johns, published 25/2/2016

Two judges of the Federal Circuit Court have expressed concern that Aboriginal children are likelier than non-Aboriginal children to be taken from their homes.

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Cobber,

Judges are required - given that every decision could set a precedent - to adhere as closely as possible to the facts of every case. I don't understand what you mean by the 'dehumanising' of judges. Surely every decision of judges depends on their 'humanising', on taking into account all the human factors, especially those affecting the children ? Regardless of the 'culture', etc., etc. of anybody else involved ?

Joe
Posted by Loudmouth, Thursday, 25 February 2016 12:03:25 PM
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Well, there are always more than just the bare facts, such as extenuating circumstance the the judge must also weigh, so I tend to disagree with the author, but mostly with Big Nana, Suse, and O Sung.
Rhrosty.
Posted by Rhrosty, Thursday, 25 February 2016 12:25:52 PM
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Yes Rhosty, far better to leave children to be sexually abused, neglected and ignored as long as " culture" is supported. Mind you, the only culture these kids have any contact with is the culture of alcohol, drugs, gambling and violence. Something we should all embrace and celebrate eh?
Posted by Big Nana, Thursday, 25 February 2016 2:52:50 PM
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I don't see much passing on of 'culture' in families where grog, drugs and violence are the norm. I would have thought that the vital parts of 'culture' were the social relations within a group, and the means by which they kept the group going: the economy and ethos.

Traditionally, people may have looked after each other on the one hand, and put a lot of effort into making sure everybody was fed on the other, and on top of that, passed on those principles to the next generation. That's the theory anyway.

In real life ? I get the idea that ration and mission systems [and then the welfare system generally], with the best of intentions, did two things: they eliminated the need to make sure everybody had enough to sustain them; and they immediately transformed the amount of effort required to do anything - a double whammy.

So 'culture' was stripped of its main rationales, leaving what ? Young people don't have access to secret knowledge and stories, so that may not ever come up. How to paint yourself (Adam Goodes is now an expert), do a few dances, but for most of the time, young people would be left to find their own way, and how to keep out of the way of 'uncles' etc. when everybody had a skinful.

So kids are on the streets at three in the morning, only kids seem to have any energy (much as mice would have energy in the context of cats), and everybody seems to drag themselves around like they've got lead weights on, bored sh!tless.

So it must be hard enough in the best circumstances, with the best grandmothers.

Joe
Posted by Loudmouth, Thursday, 25 February 2016 4:12:06 PM
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Big Nana; I think you should read me again if only to ascertain I was mostly agreeing with your and Susan's position.

While a sentencing judge is obliged to weigh extenuating circumstance, as would exist in the case of a battered wife using lethal force to end the abuse.

Even so, I see no merit in returning children to their abusers, or even grandparents, given what the abuser regards as normal or "CULTURE" is often learned at their mother's knee.

We fostered a child, for around 3 months while her battered mum recovered in hospital.

And the saddest day when an ass of a law forced us to give her up and send her back, even as she clung and begged to stay!

I'm certain that that little heartbroken girl was going back into danger?

Had a judge been able to take evidence from the child and then weigh the extenuating circumstances? And the kid's wishes, maybe there could have been another outcome?

But the law is the law and we were simply powerless before it, and the completely heartless bureaucrats enforcing it; regardless of how much we and Julie wished for it to be different!

I made it my business to keep tabs on Julie as long as I could, but then the parents moved interstate, leaving no forwarding address, where with no known record, and consequent red flag, they could just be another of those sad cases repeating itself?

From a purely personal perspective, I don't think there's a black way or a white way, just a right way!
Rhrosty.
Posted by Rhrosty, Thursday, 25 February 2016 7:31:13 PM
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Mr Justice Rae Else-Mitchell once said to me there is no school which teaches the Art of judging I think the University of Life teaches people trained in the law how to apply the law and that should be the Art of Judging.
Unfortunately many Judges try to be Solomon and they fall well short just as Solomon would fall well short of what a 21st Century Judge should be.
The Federal Court is out of control on family matters, they are short staffed, the delays compound problems, and too much emotion is allowed into the proceedings particularly from biased social workers.
The Judges need to realise they are not Solomon, nor are they the High Court (which interprets the Law), lower Court Judges should apply the Law and nothing but the Law.
Posted by nemesis 82, Thursday, 25 February 2016 10:40:42 PM
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