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Indigenous Law Bulletin

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Ralph, Stephen --- "Conflict Resolution Special - Family Court Mediation and Indigenous Families" [2004] IndigLawB 52; (2004) 6(5) Indigenous Law Bulletin 10


Family Court Mediation and Indigenous Families

by Stephen Ralph

Family mediation is an integral part of the work of the Family Court of Australia (‘Family Court’) as it strives to assist families to reach agreement on issues concerning children. The Family Court openly acknowledges that it is far preferable for families to make their own decisions about their children rather than leave it up to the Court to step in and determine child residence, contact or other parenting issues.

This is particularly the case for many Indigenous families who encounter difficulties in reaching agreement on issues of where children should reside and who should care for them following family breakdown or separation. For many Indigenous families, contact with the Australian legal system has often been associated with imprisonment and dispossession. Such contact has given rise to a broad perception that the legal system is antipathetic to their interests and unable to deliver justice and fairness to Aboriginal and Torres Strait Islander families. For some time now the Family Court has been concerned with dispelling this impression and has sought to improve Indigenous access to justice by tailoring its service to respond sensitively and appropriately to the needs of Indigenous families.

The Court has employed Aboriginal and Torres Strait Islander Family Consultants within the Family Court Mediation Service in Darwin, Alice Springs and Cairns. Consultants are selected from local Indigenous people and they work as a two-person gender-balanced team in providing assistance to families who are often in heated dispute following family breakdown.

The Indigenous Family Consultant Program ultimately seeks to promote access to justice for Aboriginal and Torres Strait Islander people. The Program seeks to achieve this mainly by assisting Indigenous people to access and utilise the mediation services provided by the Family Court and thereby avoid the cost and stress associated with litigation on difficult and sensitive family issues.

In the event that mediation is not successful, Family Consultants also assist families in the determination phase of proceedings by providing assistance and support for those who are involved in family report interviews or who are unrepresented in proceedings and in need of information and support.

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.

Indigenous Family Law Disputes

After eight years of engaging with Indigenous families through the work of the Court’s Indigenous Family Consultants there are a number of observations to make in relation to the characteristics and nature of Indigenous family law disputes. Although the presenting issues may be similar to non-Indigenous families, there are a number of characteristics that are particular to Indigenous families in dispute.

Foremost amongst these characteristics is the extent to which the extended families are frequently involved in the dispute. This is consistent with the collectivist nature of Indigenous families and the obligations and responsibilities that extended families feel in relation to the care of children. Grandparents, aunties and uncles play a far more significant role in caring for children and are more likely to be actively involved in advocating for the children, or taking a lead in negotiating the issues than is likely to be the case with non-Indigenous families. This is perhaps also due in part to the relative youth of Indigenous parents and the consequent reliance on other family members for support and assistance in caring for children.

A further notable feature in Indigenous family law disputes is the extent of family dislocation and breakdown experienced. It is not uncommon, for example, for children to be raised by others with whom they may have only a remote ‘family’ connection. The level of dysfunction in some communities, including the impact of chronic alcohol and substance abuse, the effects of family violence, poverty and sub-standard housing can sometimes lead to children being cared for by others who are better placed to provide for the child’s immediate needs at a time of family crisis. This sometimes leads to a child being raised apart from their immediate family who may in time seek the return of the child to their care after the passing of many years. Such a situation is frequently experienced as highly distressing for the carers, the child and the child’s family alike.

There is a level of complexity that is often associated with Indigenous family law disputes that goes beyond that which is observed in non-Indigenous families. The extent of family dislocation that not uncommonly includes the death or imprisonment of a parent or other close family members, in conjunction with issues of violence, alcohol and substance abuse, mental health problems and/or poverty adds a level of complexity to the dispute that makes mediation particularly difficult for all involved. It is often this very complexity that brings such matters into the domain of the Family Court as the only forum in which such matters may be addressed bearing in mind the best interests of the children involved.

Cultural issues relating to affiliation and identity are also prominent in many Indigenous family disputes over children. The transmission of cultural values, beliefs and practices are often of concern for many families. This is especially the case when the children are of parents from two distinct tribal or cultural groups. Upon separation it can become an issue of how children are to be raised as members of two distinct cultural groups. Both sides of the family are often quick to lay claim to ‘ownership’ of the child and emphasise the needs of the child to find its place within their family’s social and cultural grouping.

In assisting Indigenous families to reach agreement there are a number of factors to be taken into consideration to ensure that agreements will be workable and enduring. It is often noted, for example, that the common ‘alternate weekend and Wednesday evening’ type of arrangement does not fit comfortably in many Indigenous families. Factors such as remoteness, access to transport, other family ‘business’ and the demands of community life may impede the smooth transition of children between households. Obligations to family and community are often more pressing for Indigenous families and at times these obligations to others may take precedence over other commitments in relation to children. Funerals, for example, are a time for families to pay their respect to the deceased and their family, sometimes over an extended period of time. The obligations associated with this practice are far more onerous, and unfortunately common, for Indigenous families than is the case for non-Indigenous families.

Working Together

The Family Court’s preferred model of providing mediation to Indigenous families involves Court Mediators and Indigenous Family Consultants working together. This is not always possible however due to the limited distribution of Consultants throughout the Court, but where Consultants are employed the model has been quite successful and clearly appreciated by the families involved.

A feature of the ‘working together’ model is the importance of respect for culture and open rapport between Mediators and Consultants. Family Consultants are expected to have the ability to communicate effectively with non-Indigenous Mediators and be able to educate and inform the Mediator of cultural and family issues relevant to the mediation process. Similarly, Mediators are expected to have sufficient bi-cultural competence to allow them to relate effectively and sensitively to Indigenous people and to have sufficient understanding of cultural values and traditions.

The following case study illustrates the application of the model.

Case Study

This case involved an Aboriginal child who, as an infant, was ‘given’ by the mother to a ‘skin sister’ of the mother (that is, a woman of the same kinship group as the mother, referred to hereafter as the ‘aunt’). This occurred due to the mother’s inability to cope with the four children already in her care and her ill health. As time passed, the child was raised by the aunt with the active assistance of her non-Aboriginal mother-in-law who formed a close attachment to the child.

The mother of the child had contact with the child during these early years on a fairly irregular basis. Over time the mother’s health improved along with her capacity to care for the children. To a large extent she overcame her health problems and acquired a more stable network of family and community support. Following one of these irregular contact visits the mother refused to return the child to the aunt and stated her intention to care for the child herself from that point on. The aunt and her mother-in-law filed a joint application with the Court seeking parental responsibility and residence of the child. The mother contested this application and sought residence of the child also.

Mediation was ordered by the Family Court and as a result the Family Consultants arranged a meeting with the natural parents in a remote community. A Court Mediator also attended this meeting with both Family Consultants. The Consultants provided both parents with information regarding the legal process and mediation prior to the meeting and they remained with the parents during the mediation session.

The Consultants assisted the clients in communicating with the Mediator due to the fact that the parents spoke varieties of Aboriginal English that were difficult for the Mediator to understand. Interviews were conducted with the mother and father and later with the aunt and her husband and mother-in-law.

A Family Consultant spent time talking to the aunt prior to the Mediator meeting with her, her non-Aboriginal husband and mother-in-law. The aunt revealed to the Consultant that she had known from the outset that the child was to be returned to the natural mother when requested by her and she viewed this as her obligation to her ‘skin sister’. She informed the Consultant that she had told her mother-in-law of this but that her mother-in-law was a very domineering woman with whom she found it difficult to disagree.

After discussion with the Consultant and the Mediator, the aunt spoke with her husband and her mother-in-law in the presence of the Mediator and the Family Consultants and advised them that she wished the child to remain with the natural mother. She also expressed her intention to withdraw her support for the joint residence application. This being the case, the mother-in-law reluctantly withdrew from proceedings on the condition that she be kept informed of the child’s progress.

Of particular note in this case was the extent to which the Consultant was able to assist and support the aunt in disclosing her feelings and thereby empower the aunt to directly express her opposition to her mother-in-law’s proposal. The practical assistance given by the consultants in facilitating communication between the Mediator and the Aboriginal parents and in setting up the interviews in a remote community also highlight the important roles played by the Consultants in working together with Mediators.

Conclusion

Family law mediation with Indigenous families is a relatively new area of practice. In the past the relevance of family law to Indigenous families was questioned and the refrain was often heard: ‘they have their own way of dealing with those problems.’ The same can also be said of non-Indigenous families and, like Indigenous families, those ‘ways’ are not always successful. In such instances, Indigenous families should also have access to justice in this domain through mediation services that are culturally appropriate and sensitive to the needs of families.

Experience has revealed that Indigenous families will utilise family law mediation services that are responsive to their needs and sensitive to cultural considerations. The Family Court seeks to review and further develop the services it provides for Indigenous families and thereby build on its achievements. The Family Court maintains a strong commitment to promoting access to justice for Indigenous families in the domain of family law.

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.


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