Aston Legal Group

Family Law Matters

Indigenous Australians and the Family Law System

What are some of the barriers that Indigenous Australians face when accessing the family law system?

The legal system has long been found to be failing all members of the Australian community with regards to access to the legal system, particularly highlighted within a Senate report published in 2009. Specifically, to Indigenous Australians, access to the legal system was and continues to be difficult due to the lack of Indigenous legal services that are adequately resourced, and in remote and rural areas, this is exemplified. Not being able to physically seek legal assistance, is a major problem as most often will cause an issue to head down one of two pathways: The family law issue is resolved without legal assistance or does not get resolved at all (which is a disadvantage that is most notably Indigenous women living in these areas); or the matter progresses through the family law system without legal assistance resulting in either one or both parties being self-represented which brings with it a whole range of issues to the parties involved and the system such as further delays, higher likelihood that the matter will proceed to trial and parties not understanding the applicable law.

Unfortunately, the family law system presents problems that are not generally experienced by the wider community and cause Indigenous Australians to be at a disadvantage.

What are the implications of a lack of access to justice and family law?

When family law cases are not addressed, we need to consider the emotional and stress that parties are experiencing. For example, when a couple separates it is extremely taxing on the parties as they come to terms with the breakdown of a relationship; to make matters worse, dealing with interim parenting arrangements can cause a raft of problems. Without legal advice, parties can operate in the dark about what arrangements should be in place and what they can do to ensure that children are maintaining a meaningful relationship with both parents.

In the instance that one parent is not spending time with their child, frustration can build and can culminate into instances of family violence that then progresses through the legal system by way of intervention order proceedings, and ultimately, in the criminal justice system. This then puts a further strain on seeking to spend time with a child.

What is the solution in dealing with these barriers to Indigenous Australians?

  • Early intervention and engagement with family law systems

  • Data of research conducted suggest that Indigenous Australians are not benefiting from dispute resolution services as a tool to avoid family law litigation and that engagement has previously been problematic.

  • Dispute resolution centres have begun to employ Indigenous advisors to assist in engaging these remote and rural communities and ensure that these organisations are providing services that are culturally appropriate to each specific community.

  • Dispute resolution organisations are suggested to improve their outreach and increase the engagement of Indigenous Australians with their services.

  • Family dispute resolution – more likely to result in the matter being resolved at an early stage. Ensuring that parties receive advice as soon as possible to minimise the instances of family violence and breaches of intervention orders

Speaking of early intervention; what is some advice that Indigenous Australians, or generally individuals who have separated should be mindful of?

  1. Get legal advice and find out whether you are eligible for legal aid. This touches upon one of the greatest challenges to Indigenous Australians. You may not need to engage a lawyer immediately, however, it will most likely be beneficial for you to receive advice about your circumstances. Generally, a lawyer will be able to give you advice about your entitlements, parenting arrangements and a range of other issues that are likely to arise. There may also be several urgent matters that require attention such as spousal maintenance and parenting issues.

  2. Keep calm and avoid any conflict with your former partner. Avoiding conflict will go a long way in resolving any matters arising as a result of your separation. Any conflict is likely to produce new issues that need attention in what is already an extremely testing set of circumstances. If the other party begins an argument, remove yourself from the situation and ensure that you maintain a high standard of behaviour.

  3. Look after yourself. The breakdown of a relationship and separation is stressful and tumultuous. If you have recently separated, you should ensure that you have a support network of family and friends that can assist you during this time. It may even be helpful for you to receive support from a professional such as a counsellor or psychologist. If you are considering seeking professional support, you should speak with your GP to see if you are entitled to a free mental health plan through Medicare.

  4. Consider living arrangements. If you have separated and can no longer live under the same roof with your former partner or spouse, you should consider moving out of the home. Whether or not you live in your home after separation has no bearing on your legal interest and entitlement to the property however you should speak to a lawyer before moving out. If you have children with your former partner, you should discuss the living arrangements for your children with them. The best interests of the children are always paramount, and the Court will favour siblings staying together. You and your former spouse should decide who the children will live with and plan for the other parent to spend time with the children regularly.

What are some specific Family Court facilities that are available for Indigenous Australians?

  1. If it is required, the Court can appoint an appropriate person who has knowledge of and understands Indigenous culture to contribute to the discussion and assessment of the best arrangements for a child. This is to ensure that the Court is appraised of and is responsive to the relevant cultural issues.

  2. In the process of a family law matter, the Court will usually order a family report be conducted to give the court insight into the family’s circumstances, the relationships of children and their parents, and can provide recommendations regarding future parenting arrangements. In the case of Indigenous Australians, the court would most likely seek that the report writer performs an assessment and make recommendations regarding the child’s culture and whether the court needs to consider making orders that the child spends time within a specific community or with particular members of their family.

  3. In addition to this, the Court can arrange Indigenous interpreters if a person or party to family law proceedings have difficulty understanding or communicating in English.

How does the Family Court system accommodate or is culturally aware of the needs of Indigenous Australians?

There are two main aspects of family law; property and parenting. Now children are the primary focus in a family law matter and the legislation requires the Courts to consider the bests interests of the children being:

    1. The benefit to children in having a meaningful relationship with both parents; and

    2. The need to protect children from physical or psychological harm.

In addition to the primary considerations, the Family Law Act sets out several other factors that the Court should consider, and it recognises the significance of Indigenous children maintaining a connection with their culture after separation. When assessing what is in the child’s best interest, the Court will also consider:

      1. The lifestyle, culture and traditions of the children and their parents;
      2. The child’s right to enjoy his or her Aboriginal or Torres Strait Island culture;
      3. The likely impact that any proposed parenting order will have on that right; and
      4. Regarding the child’s right to enjoy his or her culture, this will include the child’s right to have support to explore and develop a positive appreciation of that culture.

The Next Step

If you would like to discuss property or any other parenting matters, contact us on 8391 8411 to book a free 30-minute consultation with us to discuss what steps you should take next.

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