Indigenous Law Bulletin
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by Stephen Ralph
For many Indigenous families, recourse to the legal system for assistance in sorting out a family dispute is an undertaking that is fraught with difficulties that often extend beyond those encountered by other Australians. Recent consultation involving the Family Court and Indigenous clients and agencies noted the following difficulties,
Those consulted repeatedly raised the need to acknowledge the particular difficulties experienced by Indigenous people in accessing the Court’s processes. As well as a lack of information and understanding, people experience humiliation and shame about having to use the white legal system and raising their issues in public. Potential repercussions from both communities and family members of perpetrators make accessing Court services even more difficult. Some participants said that for an Indigenous woman to resort to using the Family Court indicates that she is in a very serious situation.[1]
Earlier consultation entered into by the Court with Indigenous groups found that the services provided by the Court were not accessed by Indigenous people due to a general lack of knowledge of the role and functions of the Family Court. Other factors impeding access to Court services were negative experiences of the broader legal system; concerns regarding the forced removal of children, and a deep-seated historical distrust of the child welfare system and other government departments.[2]
Many Indigenous women also confront an additional level of difficulty in accessing the family law system. For example, asking the legal system to intercede in a family dispute is often viewed as a hostile act that may provoke retaliation from a male partner, their family and/or other community members in circumstances where the risk of actual violence is ever present. The capacity of the broader legal system to provide adequate protection to Indigenous women in such a situation is well known. The cultural ties that bind an individual to family, kin and country; gender and power imbalances; geographical isolation; and the difficulty of accessing appropriate legal aid and support services are some of difficulties confronting Indigenous women.
Under the leadership of retiring Chief Justice Alistair Nicholson the Family Court has made a concerted effort to promote and improve access to justice for Indigenous families. In 1993 the Court established an Aboriginal and Torres Strait Islander Awareness Committee whose primary role has been to promote consultation with Indigenous groups and to assist the Court in responding to the needs of Indigenous families. The work of the committee has led to a number of new initiatives designed to promote Indigenous people’s access to justice. These initiatives have included cross-cultural education for judicial officers, registrars and mediators; the development of an Aboriginal and Torres Strait Islander Employment Strategy; the creation of Aboriginal and Torres Strait Islander-identified positions within the Court’s mediation service, and recognition of the customary adoption practices of Torres Strait Islander families. The success of these initiatives has been recognised by the Family Law Pathways Advisory Group in its report Out of the Maze: Pathways to the Future for Families Experiencing Separation. The report states:
The experience of the Family Court in developing appropriate services for Aboriginal and Torres Strait Islander communities through consultation provides a model for how other service providers in the system might proceed.[3]
Foremost among these initiatives has been the employment of Indigenous Family Consultants within the Court’s Mediation Service. The Family Consultants are Indigenous men and women whose primary role is to provide assistance to families in conflict following family breakdown and separation. The program ultimately seeks to promote access to justice for Aboriginal and Torres Strait Islander families and does this by assisting Indigenous people to access the dispute resolution services provided by the Court. In cases where matters are to be determined by the Court, the Family Consultants are able to provide assistance to the Court in adapting its procedures to accommodate the specific needs of Indigenous families. Consultants assist the parties involved to understand the processes involved and assist in liaison between the parties, court experts and legal practitioners.
The Family Consultant program has had a highly significant impact on the relationship existing between Indigenous people and the broader Australian system of family law. The program has been recognised as promoting improved access to justice for Indigenous families within the domain of family law and has provided invaluable assistance to families in resolving disputes outside of the formal domain of the court. For example, the program has been commended by the Family Law Pathways Advisory Group and their report recommended that the program be extended to all Courts with family law jurisdiction.[4] The program has also been recognised for “excellence in judicial administration” by the Australian Institute of Judicial Administration and received a National Violence Prevention Award in 2000, presented on behalf of the Australian Council of Government.
In cases involving Indigenous children the Family Law Act 1975 is relatively clear in requiring the Court, in determining what is in the child’s best interests, to consider amongst other things, “any need” for an Indigenous child “to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders.”[5] In matters involving Aboriginal children the clarification of what is meant by “a connection” is extremely important, yet the Family Law Act does not specify what “a connection” actually is.
The Full Court of the Family Court in the matter of B & R (1995), which was heard prior to the reforms to the Family Law Act, does gives some direction upon this issue. The judgment of the Full Court states:
The history of Aboriginal Australians is a unique one, as is their current position in Australian life. The struggles which they face in a predominantly white culture are, too, unique. Evidence which makes reference to these types of experiences and struggles travels well beyond any broad “right to know one’s culture” assertion.[6]
Davis and Dikstein (1997) assert that a consideration of s68F(2)(f) in conjunction with the above judgment “must mean that Aboriginal and Torres Strait Island children cannot maintain a connection with their lifestyle or culture simply by being provided with information about their people. This raises the question as to the level of connection needed by children so that they are able to participate in the lifestyle, culture and traditions of their people.”[7]
The Human Rights and Equal Opportunity Commission (HREOC) report on the forced removal of Indigenous children from their families, Bringing them Home,[8] makes a number of recommendations regarding the determination of the best interests of the Aboriginal child and makes specific recommendations regarding further amendments to the Family Law Act.
Recommendation 54 states ‘That the Family Law Act 1975 be amended by “replacing in section 68F(2)(f) the phrase “any need” with the phrase “the need of every Aboriginal and Torres Strait Islander” [child to maintain a connection with Aboriginal culture].’
The current legislation directs the Court to consider whether an Indigenous child has any need to maintain a connection with his or her culture. The Commission’s report presents a stronger stance that the Family Law Act “should direct a Judge to take account of that need” and assumes that every Aboriginal child will have such a need.[9]
The report states that “the inclusion of these principles will not pre-determine a dispute in favour of the Indigenous parent since the best interest of the child remains the sole consideration.”[10] Implicit though within the latter statement is the belief that a continuing “connection with the lifestyle, culture and traditions” of Indigenous people is of fundamental importance in considering the best interests of any Aboriginal child.
This recommendation is supported by Out of the Maze which also recommends that “in section 68F(2)(f) the phrase “any need” be replaced by the “need of every Indigenous child”.[11]
An important factor in Family Law proceedings involving Indigenous families is the unique kinship obligations and child-rearing practices of Aboriginal and Torres Strait Islander culture. Indigenous family relationships are generally based on a collectivist view of family and social life that sees responsibility for the growing up of children invested in many people apart from the parents. At present the Family Law Act does not explicitly recognise child-rearing obligations or parenting responsibilities of family members other than parents.
The Court’s ability to take into consideration the myriad relationships that may surround an Indigenous child is somewhat limited. This has been acknowledged by the Full Court of the Family Court in considering the case of Re CP.[12] This particular case involved a Tiwi child who had come into the care of another Indigenous person who was not of the Tiwi tribe. The young Tiwi mother of the child applied for a residence order with the full support of her extended Tiwi family. The Full Court in hearing the mother’s appeal against an order giving residence to the non-Tiwi carer stated, “This case highlights difficulties in the applicability of the Family Law Act to cultural systems of family care which, like the Tiwi way, contemplate circumstances where the child will live and be cared for within a kin network.”[13] In its judgment the Full Court also noted that “for formal legal purposes, the many non-biological mothers of a Tiwi child are invisible to the law.”[14]
The Full Court acknowledged that “legislative recognition of Indigenous culture and heritage in s68F may need to be complemented by provisions which take account of the kinship care systems of Aboriginal and Torres Strait Islander peoples. In the absence of such provisions, it is for Judges to work out, as best they can, how to deal with these issues.”[15] In determining such matters the Court often has the assistance of a Child Representative and other experts who should direct the attention of the Court to the significant role played by the extended family and kinship group.
The report of the Family Law Pathways Advisory Group also recommends legislative change to address this gap in the current legislation. It recommends that “the Family Law Act be amended so that Section 61 should acknowledge unique kinship obligations and child-rearing practices of indigenous culture.”[16]
Efforts to develop a family law system that is accessible to Indigenous women and their families are a relatively recent development. It is only over the past ten years, for example, that a concerted effort has been made to actively engage with Indigenous communities and provide information that is relevant and comprehensible. The Family Court of Australia has been at the forefront of these initiatives and continues to provide leadership in promoting access to justice for Indigenous women and their families.
Indigenous women’s legal services play an important role in educating Indigenous women about the family law system. The Court’s mediation services works closely with these and other general legal services to provide an avenue for issues to be addressed in a safe and respectful manner, often without recourse to litigation. The assistance of an Indigenous Family Consultant in negotiating parenting arrangements, for example, often restore a degree of balance to a situation that would previously have been overwhelming for the woman involved.
These initiatives have encouraged Indigenous families to make better use of the services provided by the Family Court and have been of great benefit to Indigenous women in particular. There is still much to be done, however, and future priorities include ongoing cross-cultural education for judicial officers and other court staff, as well as an expansion of the Family Consultant program to increase the number of consultants in the Family Court.
Stephen Ralph is the National Coordinator (Indigenous Programs) of the Family Court of Australia. He is Aboriginal and has family connections to the La Perouse community in Sydney.
[1] Family Violence Consultation Report, Family Court of Australia, June 2003.
[2] The report of the Australian Human Rights and Equal Opportunity Commission, titled “Bringing Them Home: An Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families” (HREOC, Canberra, April 1997) provides a thorough account of the experience of Indigenous people in relation to the child welfare system and the legal system in general.
[3] Out of the Maze: Pathways to the Future for Families Experiencing Separation, Report of the Family Law Pathways Advisory Group, July 2001, page 91.
[4] Out of the Maze, ibid, Recommendation 23, page 92.
[5] Family Law Act 1975 (Cth), Section 68F(2)(f).
[6] In the Marriage of B and R [1995] FamCA 104; (1995) 19 Fam LR 594.
[7] R Davis and J Dikstein, “It Just Doesn’t Fit”, Alternative Law Journal, Vol 22, No 2, April 1997.
[8] Bringing Them Home: An Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, (HREOC, Canberra, April 1997).
[9] Bringing Them Home, HREOC Report, ibid, page 597.
[10] Bringing Them Home, HREOC Report, ibid.
[11] Out of the Maze, Recommendation 22, page 91.
[12] Re CP (1997) FLC 92-741; 21 Fam LR 486.
[13] Re CP (1997) FLC 92-741; 21 Fam LR 486.
[14] Re CP (1997) FLC 92-741; 21 Fam LR 486.
[15] Re CP (1997) FLC 92-741; 21 Fam LR 486, emphasis added.
[16] Out of the Maze, Recommendation 22, page 91.
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/2004/27.html