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family member. Thus there is still no automatic preference for the Indigenous parent andthe court ‘will not assume that Aboriginality is either an advantage or a disadvantage’(Justice Richard Chisholm submission 654 page 9). On the other hand, it wasacknowledged that ‘many of the matters … referred [to] above are now so notorious thatit would be expected that a trial judge would take judicial notice of them’ (page 624). Atthe same time, the judge will also need ‘the detail and thrust of that material to bemarshalled and presented to the court by an appropriately qualified expert so as to avoidthe risk that the case may turn upon varying degrees of individual [ie judges’]knowledge’ (page 624). This would be the role of the separate representative.Effectively, then, the Full Court has directed that a separate representative is to beappointed in every case involving an Indigenous child to gather evidence relating,especially, to the relationship between the child’s Indigenous heritage and his or herfuture well-being and interests.Justice Chisholm told the Inquiry,Hopefully, the decision of B and R will now put some of that expert evidence … into the cases sothat it will be available to judges who read the cases. But that’s no substitute for expert evidencein the particular case and, of course the expert evidence in a particular case might relate to theprecise community that’s involved. We can make some generalisations about Aboriginal peopleor Indigenous people, but there are often some quite significant differences from one communityto another and you might want specific evidence about a particular community (evidence 654).Lisa Young, however, raised a concern with the Full Court’s requirement in B and Rthat, ‘at least for the predictable future’, evidence establishing the relevant issues in eachcase will still need to be adduced (page 624).There is an interesting analogy here with parenting cases involving homosexual parents. Whilethe Court has gone through in detail the kinds of prejudicial arguments used against such parents,and largely discounted them, they still find the list of questions a useful checklist! In other words,they need to be reconvinced at every turn that homosexual parents are not naturally ‘bad parents’.My concern here is that the Court’s approach [in B and R] is similar in that it is saying theyacknowledge these facts as notorious but want them proved in every case just in case they do notapply for some reason in one case. No doubt such a case may come up but there is no danger thatthe relevant arguments won’t be put when that happens. Asking every applicant to takeresponsibility for these issues is the wrong solution – this is simply a matter of judicial education… Heterosexual parents are not asked to prove that they are not naturally bad parents, Caucasiansare not put to proof of matters of such notoriety, why should Aboriginal (or homosexual) parentsbe? (submission 816 page 8).Kinship obligationsThe Family Court clearly has preferred the biological parent over a disputantextended family member in making custody (now residence) orders, although there is nopresumption that that should be the case. Nevertheless, the Court, at least in reportedcases, has yet to prefer an Indigenous child’s grandmother, for example, over the child’snatural, non-Indigenous father or mother. Moreover, section 61C recognises only the