CALD families and family law

The latest material added to the Australian Institute of Family Studies library database is displayed, up to a maximum of 30 items. Where available online, a link to the document is provided. Many items can be borrowed from the Institute's library via the Interlibrary loan system.

See more resources on CALD families and family law in the AIFS library catalogue

Practice of dowry and the incidence of dowry abuse in Australia

Pratt L
Canberra : Senate Legal and Constitutional Affairs Committee secretariat, 2019.
This inquiry was established in 2018 to assess the practice of dowry in Australia and the incidence of dowry abuse. This report presents the findings and recommendations of the inquiry. It examines the nature and extent of dowry, its appropriateness as a cultural practice in a modern Australia, and the links to forced or arranged marriage, family violence, slavery, financial abuse, domestic servitude, murder, and adverse mental health outcomes for affected women, including self-harm and suicide. The inquiry also looked at the arguments for and against criminalising the practice of dowry and the adequacy of the family law system, migration law system, and other laws in preventing and addressing dowry abuse. Though the inquiry heard that dowry is a legitimate and not necessarily a negative cultural practice in some communities, dowry abuse is perceived as a growing problem in other communities, with coercive demands for excessive gifts, causing financial stress or accompanied by acts of violence or threats. In response, the inquiry makes several recommendations, including new protections and broadening legal definitions of economic abuse and family violence.

VLA client and service data analysis

Analytics for Change (Firm), Victoria Legal Aid
Melbourne, Vic. : Victoria Legal Aid, 2018.
Victoria Legal Aid provides free legal information and education across the state, with a focus on prevention and early resolution of legal problems. It also provides more intensive legal services such as legal advice and representation to select groups. This report investigates trends in levels service delivery to priority groups by analysing client data from July 2006 to June 2016. It compares all clients, Aboriginal and Torres Strait clients, clients who spoke a language other than English at home, and young clients aged 10-17 years old. Information is included on nature of legal issue, area of law (criminal, civil, or family law), service provided, and information about the client: age and gender, disability status, employment and income source, living arrangements and dependents, location, and country of origin. 'High-cost' clients are also compared. Of the top 10 matter types for all clients, a significant number of clients were involved in matters relating to both the Family Violence Protection Act and spending time with their children: a significant number of clients involved in matters relating to the Family Violence Protection Act had also dealt with a matter of assault or theft.

Accommodating family law and culture in a diverse society : the injunction power and the Jewish experience.

Segal G
Family Law Review v. 7 no. 3 2018: 196-206
In Jewish law, parties remain married and cannot remarry until a Gett - a document of divorce - is delivered by the husband to the wife. Jewish ecclesiastical courts may in some cases order a party to give or receive a Gett. In Australia, the injunction power of the Family Law Act has been called upon in some cases to order a party to attend a Jewish ecclesiastical court. However, the Family Court has denied parties the use of this power in two recent cases. This article discusses these two cases, evaluating the court's reasoning and the relationship between religion and secular law.

International child abduction: an examination of the application of the Hague Convention's "grave risk of harm" exception in Australia

Botica Z
2017.
"... the Hague Convention on the Civil Aspects of International Child Abduction [was developed] to provide a procedure for the prompt return of an abducted child to their 'habitual residence'. The Convention aims to protect children from harm as well as to deter parents from crossing borders to find a more favourable court. This dissertation provides a discussion as to how effectively and consistently the 'grave risk of harm' exception per Article 13(1)(b) [of the Convention] is applied by Australia's family courts. Three main areas of international comity, domestic violence and Non-Convention countries guide this discussion. Firstly, it explores how in recent times Australian courts have been broadly interpreting the exception. It then makes comparisons with the stricter approaches taken by the USA and the UK ... The second chapter focuses on the difficulty with applying the exception in Hague Convention cases concerning victims of domestic violence. A line of Australian cases and comparisons made with the USA and UK court's approaches reveals the tension courts face between promoting the quick return of an abducted child and adequately assessing evidence of domestic violence claims to protect the children concerned ... The final chapter concentrates on Non-Convention countries as a barrier for Convention countries to uphold the objectives of the Convention. It discusses ways in which Australia deals with these countries by comparing Australia's bilateral agreements with Lebanon and Egypt with the UK-Pakistan Protocol. It also stresses the difficulty with remedying child abductions to Islamic countries due to the influence of Sharia law ... Overall, [this dissertation] suggests ways to make the domestic application of the Article 13(b) exception more coherent and in uniformity with international approaches to better fulfil the Convention's objectives."--Author abstract.

Was there anything I could do? Jewish divorce and the Family Courts.

Rubin M
Australian Family Lawyer v. 26 no. 2 Aug 2017: 54-56
Getting divorced under the Family Law Act does not free up Orthodox Jewish parties to marry again under Jewish law, they must also obtain a Gett - a Jewish Divorce. This article considers what's involved in the granting of a Gett and whether the Family Courts holds any power in forcing parties to obtain one - such as when one party refuses to seek one, rendering their former spouse unable to marry again.

Religion in family law matters : value judgments in the best interests of the child.

Sergi J
Australian Family Lawyer v. 26 no. 2 Aug 2017: 30-38
Parenting disputes over religion are not an uncommon issue before the Family Courts of Australia. This article explores how Family Courts have approached religious issues in child disputes, including the legislative and constitutional framework and the approach taken in particular cases where religion has been at issue. Part VII of the Family Law Act says that children have a right to enjoy their culture, and the author argues that it is essential that the court maintain a neutral and objective approach and avoid a 'trial of religion', only considering matters relevant to the issue in dispute.

Adaptations of Islamic family law for the Australian context.

Black A
Australian Journal of Family Law v. 30 no. 3 May 2017: 159-179
This article reflects on how Australia as a multicultural and multi-religious nation approaches resolution of disputes for personal status matters: marriage and divorce. The vehicle for doing so is the lived experiences of Muslim Australians whose adherence to their faith invokes the application of Islamic family law, and who may or may not, also accept the validity of Australian secular law. The article argues the alternatives open to Muslims and lack of compulsion inherent in system means that Muslims, like all Australian citizens, can follow the formal official pathway of state courts applying Australian law regardless of a person's religion, or can take the informal official route where religious law is used resolve these matters - providing there is no breach of Australian law. No one is compelled and no one is locked out of either approach. The article looks specifically at the issues of 'mahr', dual registration of marriage, and Islamic divorce options for wives, noting Australian adaptations and drawing on comparisons with other jurisdictions, particularly reformist Muslim nations.

Family Law Council report to the Attorney-General on families with complex needs and the intersection of the family law and child protection systems: final report - June 2016 (terms 3, 4 & 5)

Family Law Council (Australia), Australia. Attorney-General's Dept.
Barton, A.C.T. : Attorney-General's Dept., 2016.
The Australian Attorney-General has asked the Family Law Council to inquire into the legal and practical obstacles preventing greater co-operation between the family law and child protection systems. An earlier interim report focused on the first two terms of reference; this final report presents findings and recommendations regarding the remaining three terms: the opportunities for enhancing collaboration and information sharing within the family law system, such as between the family courts and family relationship services; the opportunities for enhancing collaboration and information sharing with other relevant support services, such as child protection and mental health services; and current data limitations.

Can marriage survive secularization?

Parkinson P
Rochester, N.Y. : Social Science Research Network, Social Science Electronic Publishing Inc., 2015.
"In many countries, including the United States and Australia, the law of marriage has now been divorced from its Judaeo-Christian heritage and given a secular meaning. Can marriage itself survive this process of secularization? The Article explores the drift away from marriage as the basis for family formation and child-rearing in Europe, North America and South America and the weakening of the marriage contract in law. It goes on to examine the laws concerning the solemnization of marriage and the differences (if any) between marriage and other family forms in a number of jurisdictions. These laws are explored by evaluating the options for family formation that are available to a young couple in Amsterdam, London, Edinburgh, Melbourne and Washington DC. The conclusion is that the law governing the entry into (and exit from) marriage is losing much of its coherence and purpose. While marriage will continue to be important to people of faith and in certain cultures, civil marriage will gradually become little more than a means of registration of intimate partnerships. This will occur because the secular State lacks any convincing narrative about what marriage is, and any justification for having a marriage celebrant who represents the authority of the State."--Author abstract.

Islamic family law in Australia : to recognise or not to recognise

Krayem G
Carlton, Vic. : Melbourne University Publishing, 2014.
This book explores the role of Islamic law in secular liberal democratic states, focusing on family law issues such as marriage and divorce. It reviews the debates and presents findings from a survey on how Australian Muslims resolve and negotiate family law issues, challenging the idea that a separate and parallel legal system needs to be established.

Increasing access to family justice through comprehensive entry points and inclusivity: final report

Law Commission of Ontario
Toronto : Law Commission of Ontario, 2013.
Despite a number of important reforms in family law in Ontario in recent years, separating people continue to face difficulties,including gaps in responding to the province's diverse population, difficulties in understanding and using information, a lack of affordable representation, and inadequate response to the multidisciplinary nature of family issues. In response, the Law Commission of Ontario established a family law project focusing on the role of entry points into the system, in the belief that effective entry points with appropriate information and supports can have a beneficial effect on disputants' interaction with the rest of the system. This report presents the findings and recommendations of the project, and advocates for the establishment of multidisciplinary, multifunction hubs as an effective approach. Part One provides background information, and assesss the strengths and weaknesses of the current family justice system through an 'access to justice' lens, paying particular attention to whether and how the family justice system addresses the challenge of diversity, facilitates early and effective access to information, the increasing cost of legal services, and the interrelationship between legal problems with other problems experienced by individuals facing family breakdown. Part Two examines ways to improve the existing entry points to help facilitate access to family justice services by a larger number of Ontarians, in particular the delivery of information, legal advice and legal assistance.

Family dispute resolution and Muslim communities in Australia.

Hussain J
Saeed, Abdullah, ed. McCue, Helen, ed. Family law and Australian Muslim women. Carlton, Vic. : Melbourne University Publishing, 2013. Islamic studies series ; 15 9780522862355: 95-124
This chapter argues the case for establishing a formal system of Islamic family law mediation and arbitration in Australia. It describes the principles of family dispute resolution in the Qur'an and Sunnah, the principles of family dispute resolution in Australian law, and how Islamic mediation services have been established in western nations to date.

The dual system of divorce and its implications for Muslim women in Australia.

Buckley A
Saeed, Abdullah, ed. McCue, Helen, ed. Family law and Australian Muslim women. Carlton, Vic. : Melbourne University Publishing, 2013. Islamic studies series ; 15 9780522862355: 125-149
This chapter explores the differences between a religious and a civil divorce in Muslim communities in Australia. Drawing upon interviews with divorcees, local Imans, and legal and support professionals, it considers how some women seek both forms in an attempt to be 'completely' divorced.

Australian Muslim women : skilful legal negotiators in a plural legal world.

Krayem G
Saeed, Abdullah, ed. McCue, Helen, ed. Family law and Australian Muslim women. Carlton, Vic. : Melbourne University Publishing, 2013. Islamic studies series ; 15 9780522862355: 70-94
This chapter explores how Australian Muslim women negotiate and accommodate both Australian family law and Islamic family law - including matters of marriage, maintenance, family dispute resolution, divorce, and property settlement.

Family law and Australian Muslim women

Saeed A and McCue H
Carlton, Vic. : Melbourne University Publishing, 2013.
This book presents a collection of essays on how Australian Muslim women negotiate both Australian family law and Islamic family law - in the areas of marriage, divorce, child custody, property settlement, and inheritance. Essays include: Ijtihad and approaches to renewal of Islamic law today: some reflections, by Abdullah Saeed; Marriage, divorce and inheritance in Islamic Law as presented in Ibn Rushd's 'The Distinguished Jurist's Primer': a summary, by Abdullah Saeed; Some aspects of reform in Islamic family law today: lessons from three countries, by Helen McCue; Australian Muslim women: skilful legal negotiators in a plural legal world, by Ghena Krayem; Family dispute resolution and Muslim communities in Australia, by Jamila Hussain; The dual system of divorce and its implications for Muslim women in Australia, by Anisa Buckley; Splitting heirs - succession between two worlds: Australian law and the Sharia, by Asmi Wood.

Managing family justice in diverse societies

Maclean M and Eekelaar J
Oxford : Hart Publishing, 2013.
"The aim of this book is to explore what response the law has or should have to different family practices arising from cultural and religious beliefs. The issue has become increasingly debated as western countries have become more culturally diverse. Although discussion has frequently focused on the role Islamic family law should have in these countries, this book seeks to set that discussion within a wider context that includes consideration both of theoretical issues and also of empirical data about the interaction between specific family practices and state law in a variety of jurisdictions ranging from England and Wales to Bangladesh, Botswana, Spain, Poland, France, Israel, Iran and South Africa. The contributors to the 17 chapters approach the subject matter from a variety of perspectives, illustrating its complex and often sensitive nature. The book does not set out to propose any single definitive strategy that should be adopted, but provides material on which researchers, advocates and policy makers can draw in furthering their understanding of and seeking solutions to the problems raised by this significant social development."

Sacred law in a secular land : to what extent should Shari'a law be followed in Australia?

Abdalla M
Griffith Law Review v. 21 no. 3 2012: 657-679
In Australia and other secular Western countries, there is debate on the extent to which Shari'a should be followed by local Muslims. This article examines classical and contemporary juristic discourse on the extent to which a Muslim is obliged to follow Shari'a in non-Muslim countries.

Marriage and divorce in a multicultural context : multi-tiered marriage and the boundaries of civil law and religion

Nichols J
New York : Cambridge University Press, 2012.
"American family law makes two key assumptions: first, that the civil state possesses sole authority over marriage and divorce; and second, that the civil law may contain only one regulatory regime for such matters. These assumptions run counter to the multicultural and religiously plural nature of our society. This book elaborates how those assumptions are descriptively incorrect, and it begins an important conversation about whether more pluralism in family law is normatively desirable. For example, may couples rely upon religious tribunals (Jewish, Muslim, or otherwise) to decide family law disputes? May couples opt into stricter divorce rules, either through premarital contracts or 'covenant marriages'? How should the state respond? Intentionally interdisciplinary and international in scope, this volume contains contributions from fourteen leading scholars. The authors address the provocative question of whether the state must consider sharing its jurisdictional authority with other groups in family law."--Inside cover.

Advisory report: Marriage Equality Amendment Bill 2012 and Marriage Amendment Bill 2012

Australia. Parliament. House of Representatives. Standing Committee on Social Policy and Legal Affairs
Canberra : The Parliament of the Commonwealth of Australia, 2012.
This Inquiry was established to investigate the provisions and legal issues of two marriage amendment bills put before the Senate on the 13 February 2012: the Marriage Equality Amendment Bill 2012 (by Mr Adam Bandt MP (Greens) and Mr Andrew Wilkie MP (Independent)) and the Marriage Amendment Bill 2012 (by Mr Stephen Jones (Labor)). Both of these bills aim to remove discrimination from the marriage law and enable same-sex couples to marry. This report presents the findings and recommendations of the inquiry.

The position of Australian Muslim women in polygamous relationships under the Family Law Act 1975 (Cth) : still 'taking multiculturalism seriously'?

Richards J and Esmaeili H
Australian Journal of Family Law v. 26 no. 2 Aug 2012: 142-173
While committed to principles of equality and inclusive of various cultural beliefs, the Australian legal system is unitary and does not recognise Islamic law or any other legal system. However, many members of our growing Australian Muslim communities, while complying with Australian law, may regulate their personal relationships, notably marriage, according to the legal system of Islam. Under the Australian family law system rules of Islamic law may be considered as matters of fact where relevant to the parties. Islamic family law contains both similarities and differences to Australian law with respect to marriage. One key difference is in the status of polygamous marriages, which are invalid under Australian law but valid under the religious law of Islam. This difference leaves the status of many Muslim women who are a subsequent spouse in a polygamous relationship as potentially that of a de facto partner. However, the recent transfer of de facto property jurisdiction to the family court system may not include all women in this form of relationship.

Improving the family law system for clients from culturally and linguistically diverse backgrounds

Family Law Council (Australia), Australia. Attorney-General's Dept.
Canberra : Attorney-General's Department, 2012.
This report investigates whether the family law system meets the needs of clients from culturally and linguistically diverse backgrounds in Australia and how the system could be improved. The report describes the family law system in Australia, barriers to access, current programs and initiatives of the family law system, legal literacy programs, service integration strategies, workforce development, flexible service delivery models, and considerations of cultural background in family law.

Good and bad Sharia : Australia's mixed response to Islamic law.

Black A and Sadiq K
University of New South Wales Law Journal v. 34 no. 1 2011: 383-412
There is much debate on the extent to which the common law systems of the west can and should accommodate and recognise the laws, norms, and values of different religions and cultures - in particular Sharia, the Islamic legal system and code of conduct. This article examines the Australian response to Sharia. It discusses legal pluralism and the different ways Muslims resolve conflict between state law and their faith, and contrasts the legal response in two different areas of law: finance and banking law and family law. These two areas can be accepted or accommodated with different degrees of success, with regard to community and legal attitudes on usury, interest, financial products, marriage, polygamy, divorce, inheritance, and child custody.

Separatist religious sects, the Family Law Act and shared parenting : an examination of cases involving the Exclusive Brethren.

Thornthwaite L
Australian Journal of Family Law v. 25 no. 1 Mar 2011: 54-72
The decision of Brown J in Peter v Elspeth, involving members of the Exclusive Brethren, throws light on the dilemmas and difficulties the Family Court faces in establishing viable shared parenting orders when one party belongs to a separatist religious sect. In order to explore the issues that arise from such cases, this article examines recent Family Court decisions concerning parents who belong to the Exclusive Brethren, a sect which, consistent with the sect's governing principles, not only refuses contact between children and ex-member parents, but has also been criticised as having engaged in litigation and obstruction attempts to prevent and sabotage parenting orders for the sharing of responsibility and/or time with children. In parenting disputes involving the Exclusive Brethren there are two particular issues which cause difficulties for parents, children and the Family Court. These concern the interpretation and determination of a 'meaningful relationship' between parent and child and the relationship between a child's best interests, and the particular religious beliefs, practices and lifestyle of the community in which they live.

Window into Shariah family law. Part 2, Aspects of divorce.

Black A
Family Relationships Quarterly no. 16 2010: 11-13
This paper provides a brief overview of key aspects of Islamic family law as it relates to divorce. A companion piece in the previous journal issue discussed on the diverse application and significance of Muslim family law and focused on aspects of shariah, or sharia, law as it relates to marriage. Both articles aim to provide a contextual framework for practitioners working with Muslim families in the family relationship services sector. Separate sections outline and contrast family law as it applies in Australia, providing some insight into the gulf navigated by Australian Muslims in regulating relationships within the context of a secular society.

Legal recognition of Sharia law : is this the right direction for Australian family matters?

Black A
Family Matters no. 84 2010: 64-67
Increasingly, Muslims have been making their homes in secular countries in the West. Their religion, Islam, which means submission to God, lays down a comprehensive code for life known as the Sharia (also written as Shariah), which has laws governing most aspects of a Muslim's daily life, including detailed laws on family and relationships. Muslims in secular nations still try to live by these laws but at times encounter difficulties when Islamic law is not readily reconciled with state law. Hence, there have been recurring requests, including in Australia, for formal state recognition to be given to Islamic law, especially for family law matters involving Muslims. Just as Canada, Britain and the nations of Europe grapple with this issue, so too is Australia. Muslims and non-Muslims divide on the issue. This article assesses the premise for Australia's 'one law for all' approach and canvasses the case for and against official legal recognition being given to aspects of Islamic law as the applicable law for Muslims in family law matters. It concludes that, on balance, the status quo should prevail.

Window into Shariah family law. Part 1, Aspects of marriage.

Black A
Family Relationships Quarterly no. 15 2010: 3-6
This article provides a brief overview of key aspects of Islamic family law as it relates to marriage. A companion piece in the next edition of Family Relationships Quarterly will focus on aspects of Shariah law (also written as Sharia law) as it relates to divorce. Both provide contextual background information for practitioners working with Muslim families in the family relationship services sector. Separate sections outline and contrast family law as it applies in Australia, providing some insight into the gulf that Australian Muslims must navigate in regulating relationships within the context of a secular society.

Cultural and religious beliefs and the best interests of children.

Benjamin R
13th National Family Law Conference handbook Melbourne, Vic Television Education Network 2008: 357-368
Concerns are often raised about how the Family Court can accommodate the differing beliefs and traditions of families from a diverse range of cultural and religious groups, particularly in regard to the best interests of the child. This paper examines how the Family Court takes into account differing social, religious and cultural backgrounds when dealing with applications in children's cases, including applications to decide who a child should live with and in determining questions of special medical treatment. The Family Law Reform Act 1995 and amendments under the 2006 shared parenting reforms both oblige the Court to consider the child's cultural heritage, beliefs, lifestyle and background in determining what is in the child's best interest. The paper discusses cases involving combative parents from disparate cultures and religions, and parents in dispute with each other or medical authorities over medical treatments for their children. The overriding concern of the Court is always the best interest of the child.

Children, medical treatment and religion : defining the limits of parental responsibility.

Humphrey T
Australian Journal of Human Rights v. 14 no. 1 Dec 2008: 141-169
The responsibility of parents for the medical treatment of their children raises significant and complex problems for the state, particularly in situations where their religion is at odds with modern medicine. This article seeks answers to the three most pressing questions in this largely underdeveloped field of the law: who should be the ultimate arbiter in the child's best interests in medical treatment cases?; what are the child's best interests, and how do the religious beliefs of the parents fit in?; and, is the current legal framework adequate? Addressing these issues is the first step towards formulating a just and comprehensible body of medical law for children.

Judicial consideration of culture in child-related proceedings under the Family Law Act 1975 (Cth).

Chew A
Australian Journal of Family Law v. 21 no. 2 Aug 2007 173-203
This article draws on sociological research, legal theory and case law to examine how cultural factors may be considered in child related proceedings in light of recent amendments to the Family Law Act 1975 (Cth). The article establishes the role and significance of culture in children's lives and evaluates the Act, identifying structural issues that may hinder judicial consideration of cultural factors. It then discusses the likely effect of these potential problems, acknowledging the considerable impact of ethnocentricity upon decision makers, and proposes suggestions for reform. The article concludes that while judicial consideration of cultural factors can never be a purely objective exercise, equitable outcomes may be better achieved by both a change in the legislation and in the cultural awareness of decision makers and the Australian community.

Kinship matters

Ebtehaj F, Lindley B and Richards M
Oxford : Hart, 2006.
"This book is the fifth in a series by the Cambridge Socio-Legal Group series and is the product of a three-day workshop held in Cambridge in September 2005. It concerns the evolving notions and practices of kinship in contemporary Britain and the interrelationship of kinship, law and social policy. Assembling contributions from scholars in a range of disciplines, it examines social, legal, cultural and psychological questions related to kinship. Rising rates of divorce and of alternative modes of partnership have raised questions about the care and well-being of children, while increasing longevity and mobility, together with lower birth rates and changes in our economic circumstances, have led to a reconsideration of duties and responsibilities towards the care of elderly people. In addition, globalisation trends and international flows of migrants and refugees have confronted us with alternative constructions of kinship and with the challenges of maintaining kinship ties transnationally. Finally, new developments in genetics research and the growing use of assisted reproductive technologies may raise questions about our notions of kinship and of kin rights and responsibilities. The chapter in this book explore these changes and continuities from various disciplinary perspectives and draw on theoretical and empirical data to describe practices of kinship over time and across social groups in contemporary Britain."
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