30 June 2011
Attention: Naomi Pfitzner
Family Law Council Secretariat
3-5 National Circuit
Barton ACT 2600
also by email:
Dear Colleagues,
Re: Indigenous and Culturally and Linguistically diverse clients in the family law system
The Women’s Legal Centre (ACT & Region) thanks you for the opportunity to make a submission in respect of the terms of reference issued to the Family Law Council (“FLC”) by the Attorney-General.
The Women’s Legal Centre (ACT and Region) Inc (“the WLC”) is a Community Legal Centre accredited by the National Association of Community Legal Centres. The Centre has been operating successfully in Canberra since 1996. Its objectives are to:
- provide accessible, timely and accurate information, advice and assistance on legal and related matters to women in the ACT and region;
- raise awareness in the community about the law and the legal system as it affects women; and
- identify and challenge barriers to women’s access to justice.
The mainstay of the Centre’s work is providing legal advice and assistance to women about individual matters. The Centre does this by operating an advice line each day; seeing clients face-to-face; and operating an evening advice service on Tuesday evenings where clients are given appointments with specialist volunteer solicitors.
As we do not have the resources to represent women throughout the whole of their matter, we are most usually intermittently involved in matters. For example, we may give initial advice and referral, give legal advice to women who are participating in FDR processes, assist women acting for themselves to negotiate with other parties, prepare their documents and/or prepare for Court.
We note that the Terms of Reference calls for the FLC to consult with representatives of Indigenous Communities and representatives of CALD communities. We propose to provide some detailed case studies which demonstrate the experience of Indigenous women and CALD women in the family law system and then provide some comment drawing on these experiences.
Indigenous clients in the family law system
The WLC established the Indigenous Women’s Law and Justice Support Program (IWLJP) in 2006. The aim of the Program is to improve access and outcomes for Indigenous women in relation to law and justice services in the ACT. The key focus of the program is to address the unmet need arising from the lack of culturally appropriate law and justice services for Indigenous women. The goal is to ensure that Indigenous women are provided readily accessible and culturally appropriate law and justice related services.
As the following statistics demonstrate problems faced by Indigenous women are far greater than those faced by women in other sections of the community.
- The ACT has the highest proportion of Aboriginal and Torres Strait Islander victims of physical violence in Australia. More than 33% (one in three) reported physical violence or threats in the last year compared to 24% (one in four) nationally. [1]
- Family breakdown is much higher in the Aboriginal and Torres Strait Islander community than for the rest of the Canberra community.[2]
- By the age of 5, less than half of Canberra’s Aboriginal and Torres Strait Islander children live with both parents. By the age of 10-14 years, slightly over 40% live with both their parents. [3]
- The number of Indigenous children involved with Care and Protection Services is about 7 times higher than for non-indigenous children.[4]
Whilst Aboriginal and Torres Strait Islander people in Canberra make up only 1% of the total population, they comprise approximately 10% of people in the justice system.[5]
The number of Indigenous women accessing the WLC prior to the commencement of the project was comparatively low, with only 2% of clients identifying as Aboriginal or Torres Strait Islander. Over the 2009/2010 financial year this figure increased to 9.8%. There are often unrecognised barriers to Indigenous women accessing “white services”; the services themselves must be prepared to reorient service delivery in both practical and philosophical ways.
When analysing the presenting issues of clients, family law is the area where most Indigenous women sought advice and assistance. This includes children’s issues (residence and contact issues), divorce and property. Child protection is another area where advice and assistance are in demand. Approximately half of the women seeking assistance from the WLC report domestic and family violence.
- ways in which the family law system (Courts, legal assistance and family relationship services) meets client needs.
It is our anecdotal experience that Aboriginal clients avoid the family law system, until a crisis arises. For example, parties often have informal arrangements in relation to the children, until an unexpected eventsuch as one party failing to return the children.
Determining client needs is a complex issue, particularly with Indigenous clients. It is the experience of the IWLJP that:
1)Clients often present in crisis.
2)Family law needs are interwoven with other issues such as domestic violence proceedings in the State and Territory courts, housing issues, Centrelink issues. These associated issues can then impact on the family law issue in very practical ways – where the children will live, how the client apply for Legal Aid when the Centrelink and/ or housing issues need to be sorted.
3)Other family members are routinely involved in caring for children and can influence decision-making about the children. For example, a mother will negotiate the father’s school holiday contact with the paternal grandmother and the contact will take place at the home of paternal grandparents.
4)Many of the problems are practical problems – see our Case Study as an example. There may be difficulties with transport and child care. Clients may not be able to access telephone advice because of the associated mobile telephone costs. A common response of clients to practical problems is to withdraw from the whole process.
5)Family members and community may not be in Canberra which adds complexity to residence and contact arrangements. For example, many Aboriginal people in the Australian Capital Territory have ties with the South Coast or the Wagga area and so school holiday contact may take place with extended family or in community.
There is an Aboriginal Legal Service in the Australian Capital Territory. However, the focus of the practice is criminal. The position for a family lawyer isn’t currently filled and hasn’t been for some time. In the past the solicitor in this role confined her court work to care and protection matters so there was no specific legal representation available for Aboriginal clients in family law matters. Clients could of course make an application for legal aid. The Legal Aid Office (ACT) has recently employed an Indigenous Liaison Officer (ILO) which we understand has increased the uptake of Aboriginal clients accessing Legal Aid. The IWLJP works co-operatively with the ILO to case manage clients (with the client’s consent).
Case Study 1
An Aboriginal client lives in rural New South Wales. She has three young children including a baby. Her matter is in the Federal Magistrates Court in Canberra and an appointment has been made for her to see the Family Consultant with the children. Three months before her home had burnt down and she and the children were living with family members. The client has no means of transport (her car has broken down), no money to pay for transport, no accommodation in Canberra for herself and the children as a return trip to her home cannot be made in one day. Her lawyer in her town has explained to her the importance of attending at the appointment and the possible prejudice by either not attending or delaying the appointment. The client is distressed and considering just not attending because the difficulties are too overwhelming.
Her lawyer contacted our Aboriginal Liaison Officer who is able to provide support to the client, arrange accommodation in Canberra and accompany the client to the Family Court. With this support the client is able to arrange transport to come to Canberra and participate in the Family Report.
iiwhether there are ways the family law system can better meet client needs including ways of engaging clients in the family law system.
It is the experience of the (IWLJP) that:
1)an Indigenous worker is critical to the success of the Program. The worker is the focal point of connection between the clients and WLC. The Indigenous worker builds trust in the Centre which then can connect clients to family law system by seeking out culturally appropriate options for the client.[6]
2)It is important to think outside of the square with service delivery. For our service, this means outreach or home visits, moving away from an expectation that the client should come to our office. Community legal education programs are more participant-focussed, that is, telling people what they want to know at that time rather than trying to provide an overload of information
3)Strong referral relationships from organisations which support and provide services for Indigenous clients are essential. When navigating the family law system pathways, warm referral relationships and case management are essential to prevent Indigenous clients from abandoning participation in the system. By way of example the Indigenous Liaison Officer (ILO) will accompany women to access other services. The ILO advocates on their behalf and ensures the client understands the information given by the service and the process.
4)Because of the complex needs of many Indigenous women, the number of hours spent on average with each client is greater than non-Indigenous clients.
Case Study 2
An Aboriginal client lives in rural New South Wales. She has the care of her grand-daughter as her daughter, the child’s mother, has drug issues and is currently in jail. She has had care of the child since the child was quite young. The grandmother has negotiated with the child’s father for the father to have contact during school holiday periods from time to time. There are no orders in place. The grandmother receives no financial support from either parent for the child.
The WLC lawyer gives the client advice about obtaining Family Court Orders so that there can be certainty that the grandmother has a residence order and the father has specific contact periods. WLC assists the grandmother to apply for legal aid. The client has very few assets apart from an amount of money in a bank account ($10,000) which she received as a Victims Compensation payment for long term domestic violence. This was the basis upon which aid was refused; aid was also refused on reconsideration and review. From the client’s perspective the expectation from the “system” was that there was no support available to her. She did not proceed.
The father retained the child during the next school holiday period, not in his care but in the care of the paternal grandmother who lives in another country town. The child was not allowed to telephone her maternal grandmother and was distressed at being told that she may or may not see her maternal grandmother, her primary carer, again. Fortunately, on this occasion, the child’s return was able to be negotiated.
The situation remains uncertain.
Drawing on WLC’s experience and the research into the legal needs of Indigenous people[7] the WLC recommends the following:
1.Improving awareness of family law matters by providing targeted and culturally sensitive legal education programs to Indigenous communities, with an aim of moving towards a preventative focus; and encouragement to engage in the family law system as part of the post-separation process.
2.Employing more Indigenous staff, particularly Indigenous Family Consultants and/or Indigenous Advisors
3.Adopting flexible eligibility criteria and guidelines for legal assistance and support services that allow for special circumstances and the needs of Indigenous people to be taken into account, for example, funding programs differently to take into account complex needs and needs strictly outside the family law system (such as housing) as resolution of these other issues may be preconditions to engaging in the family law system
4.Networking effectively with Indigenous bodies and agencies
5.The family law system needs to be funded to include support workers for vulnerable and disadvantaged clients as case management of the complex system can be overwhelming.
iiiwhat considerations are taken into account when applying the Family Law Act to Indigenous clients.
In accordance with section 60CC(3)(h)of the Family Law Act 1975 (“the Act”) one of the additional considerations used to determine an Aboriginal or Torres Strait Islander child’s best interests is
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order will have on that right;
In section 60CC (6) the Act then provides a further explanation of the Aboriginal or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture, to include the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
The brochure Indigenous families and the Family Law Courts refer to an Indigenous Advisor. There is no Indigenous Advisor in the ACT Family Courts. When these positions were funded the Canberra Registry used Indigenous Advisors from Queensland. Anecdotally there is strong support for the role that Indigenous Advisors can play in complex family law matters.
From a practical point of view it can be difficult to bring evidence in relation to section 60CC(3)(h). The following questions arise:
1)Who qualifies as a cultural expert such that their expertise will be accepted by the court ? The cultural expert may not have any formal qualifications and there is no universally accepted council, group of elders or representational group. This is particularly true in the Australian Capital Territory where the Aboriginal population, like the ACT population in general, is from many other parts of Australia.
2)In the absence of a formally qualified expert, how is it possible to properly reflect the status of certain members of the Aboriginal community in court proceedings? For example, an auntie, who may or may not be a blood relative, would be considered to be no more than a supporting family member in the courts. Their opinion evidence on the significance of Aboriginal culture, for example, could be challenged.
3)How is it possible to bring evidence in a way satisfactory to the court about established cultural practice? For example, that it is a given that grandmothers will raise grandchildren where their children are unable to do so. Bringing evidence in a “white way” places the grandmothers in a position of having to justify their position which in turn undermines the strength of Aboriginal communities; this is not delivering access to the Courts in a culturally responsive environment[8].
Culturally and Linguistically Diverse (CALD) clients of the family law system
- ways in which the family law system (Courts, legal assistance and family relationship services) meets client needs.
The positives are:
1)Having information available in languages other than English
2)Using interpreter services when requested by clients
3)Some programs in the family dispute resolution sphere which are attempting to cater to CALD clients[9]
We provide a number of case studies to illustrate some of the experiences of CALD clients in the family law system.
Case Study 3
Our client and her husband married in 2008 in India and moved to Australia in 2009. They started having marriage problems. The husband was very controlling, for example he had to be satisfied that the home was clean to his satisfaction before our client was allowed to go to bed. He locked her out in the cold at 2:30am in the winter and wouldn’t let her in. When he finally let her inside, she threw a chair at the wall and hit him because she was cold, scared and frustrated, and as a result he had her charged and the matter went to court. She was charged with assault and damage to property. She was unrepresented and pleaded guilty. In court, she broke down and told the Magistrate what was happening at home, and they offered her assistance and counselling, but the client was too scared to leave him as he had told her she would be deported and he would make sure she was disgraced back in India. The criminal conviction could impact upon the wife’s visa status.