Indigenous families - Family separation 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 Indigenous families in the AIFS library catalogue

Parenting orders and the Aboriginal child.

Moodie S
Family Law Review v. 1 no. 2 Sep 2010: 61-81
The Family Law Act 1975 (Cth) requires that considerations of Aboriginal culture and kinship practices are necessary in determining the best interests of an Aboriginal child. Analysis of some recent cases involving parenting orders for Aboriginal children indicates that judges are generally giving Aboriginality the weighting appropriate to the circumstances. However, these judgments are being made without sufficient attention to the underlying anthropology, to the meaning of 'Aboriginal culture' or to the realities of Aboriginal disadvantage.

Model of practice for mediation with Aboriginal families in Central Australia

Ross C, Mallard D and Fisher S
Alice Springs, NT : Relationships Australia Northern Territory, 2010
This manual presents a model for working with Aboriginal clients in family relationship centres (FRC) in Australia. This model was developed through an action research project at the Alice Springs FRC, which aimed to design and test an effective practice model for mediators involved in family dispute resolution with separating Aboriginal parents. This manual describes the methodology of the project, clients of the FRC, approaches to mediation with Aboriginal families, stages of mediation, mediation practice, outcomes, development and support of mediators, and case studies.

The place of culture in family law proceedings : moving beyond the dominant paradigm of the nuclear family.

Ruska K and Rathus Z
Indigenous Law Bulletin v. 7 no. 20 Sep/Oct 2010: 8-12
Family law in Australia is based on the presupposition of the nuclear family structure, as highlighted in the 2006 reforms that emphasis the importance of both parents in the lives of children. However, this is problematic for Indigenous and Torres Strait Islander people, with different concepts of kin and child rearing involving extended families and communities. This article discusses family law cases that highlight these issues and which have lead to developments in the interpretation of law.

Culturally responsive family dispute resolution in family relationship centres.

Armstrong S
Family Relationships Quarterly no. 13 2009: 3-7
Family relationship centres (FRCs) are required to liaise and work with local communities to provide services relevant to those communities. Among other things, FRC staff and processes must take account of and be sensitive to the cultural backgrounds of clients. This has led many FRCs to begin to develop innovative approaches to assist and provide family dispute resolution to Indigenous and culturally and linguistically diverse communities. Two FRCs with which the author is associated have initiated research, still in progress, to develop culturally responsive family dispute resolution (FDR). This paper will synthesise some of the issues identified in the literature to provide a framework for thinking about how FRCs, and other service providers in this sector, might provide culturally responsive FDR.

Child protection: a guide for parents and family members.

Western Suburbs Legal Service Inc.
Newport, Vic. : Western Suburbs Legal Service, 2008.
The Department of Human Services (DHS) is charged with child protection laws and services in Victoria, and can be stressful and confronting for the parents it comes in contact with. This guidebook explains the powers and procedures of the DHS, legal and court processes, and individual's rights and options when involved with child protection matters. It includes information on protective intervention reports and notifications, risk assessment and case conferencing, obtaining legal advice, the powers of the Children's Court, court orders, and complaints and appeals. A directory of useful service and agency contacts is also included.

Children and families in transition : towards a child-centred integrated model of practice.

Bagshaw D, Quinn K and Schmidt B
Magill, SA : Hawke Research Institute for Sustainable Societies, University of South Australia, 2006
The project Children and Families in Transition (CAFIT) is an ongoing, collaborative research-based project between the Conflict Management Research Group, Hawke Research Institute, University of South Australia and Centacare Family Services, funded by the Telstra Foundation. It aims to research the experiences and special service needs of separated families and their children in order to develop early intervention strategies to promote child-centred practices and positive, cooperative parenting, informing a 'best practice' model of service provision to be piloted and tested. This report outlines the findings of first stage research. This included a literature review, an initial online survey of service providers nationally and internationally, and then interviews with key stakeholders, including separating parents and caregivers and their children, and staff from selected service providers, including those working with separating Indigenous families; the appendices provide details. Seven sets of recommendations were developed to address the following: hearing children's voices when their parents separate; enhancing communications between parents and their children before, during and after separation; minimising the effects of parental conflict, violence and abuse on the children; assisting parents to help their children cope with separation; supporting children, and also specifically Aboriginal children, during the separation of their parents; developing a best-practice child-centred model of service delivery for children and families in transition. The second stage of the project to be carried out in 2006 is outlined.

Children and families in transition: towards a child-centred integrated model of practice

Bagshaw D, Quinn K and Schmidt B
Magill, S. Aust. : Hawke Research Institute for Sustainable Societies, University of South Australia, 2006.
"This report outlines the findings of our research with service providers, nationally and internationally, and with children and their families experiencing separation and divorce. The aim of our research was to identify existing strengths and gaps in service provision and to develop a best practice, culturally appropriate model of child-centred service delivery for these families."

Indigenous family consultants at the Family Court of Australia.

Akee J
Smyth, Bruce, ed. Richardson, Nick, ed. Soriano, Grace, ed. Proceedings of the International Forum on Family Relationships in Transition : legislative, practical and policy responses, 1-2 December 2005. Melbourne : Australian Institute of Family Studies, 2006. 0642395403: 258-261
Mistrust of the Australian system, the government and the courts is not uncommon among Indigenous people and is one important barrier to accessing the family law system. The low number of Indigenous family law workers makes access more difficult. The author of this paper shares her experience working as an Indigenous Family Consultant in Cairns, explaining the ways she tries to make the family law system accessible to Indigenous people.

The Family Law Affidavit Pilot Project: legal assistance for Indigenous women.

Song C
Indigenous Law Bulletin v. 6 no. 17 Feb 2006 2-3
The Family Law Affidavit Pilot Project aims to help Aboriginal women in rural and remote New South Wales in the drafting of family law affidavits. This article describes the background to, and aims of, the project, and summarises the progress to date.

Recognition of traditional Aboriginal and Torres Strait Islander child-rearing practices in family law: response to Recommendation 22: Pathways Report, 'Out of the Maze'.

Family Law Council (Australia)
Canberra, ACT : Family Law Council, 2004
In January 2005 the Family Law Council provided this report to the Attorney-General on the recognition of Aboriginal and Torres Strait Islander child-rearing practices in family law. The report recommends four changes to the Family Law Act 1975 to assist courts to take into account the kinship obligations and child rearing practices of traditional Aboriginal and Torres Strait Islander peoples. Other recommendations concern expanding the Family Court's Aboriginal and Torres Strait Islander consultant program, and exploring better ways of recognising Aboriginal and Torres Strait Islander kinship practices by other Federal and State government agencies. (Publisher abstract, edited)

Recognition of traditional Aboriginal and Torres Strait Islander child-rearing practices: response to recommendation 22: Pathways report, Out of the maze

Family Law Council (Australia), Australia. Family Law Pathways Advisory Group. Out of the maze.
Barton, A.C.T. : Family Law Council, 2004.

Family Court mediation and Indigenous families.

Ralph S
Indigenous Law Bulletin v. 6 no. 5 Aug/Sep 2004 10-12
The Family Court offers many services that aim to respond sensitively and appropriately to the needs of Indigenous families. This article describes these services, considers the characteristics and nature of Indigenous family law disputes, and presents a case study that illustrates the model of court mediators and Indigenous family consultants working together.

Changing a system for the benefit of the child: the Magellan project.

Brown T, Frederico M, Sheehan R and Hewitt L
Our future generations: National Indigenous Child Welfare and Development Seminar, Tuesday 22nd - Thursday 24th July 2003: seminar report. Melbourne, Vic: Secretariat of National Aboriginal and Islander Child Care, 2003: 173-175
The findings of a study that examined the management of child abuse allegations in the Family Court of Australia and which led to the establishment of a case management model, the Magellan program, are presented in this paper. The paper discusses the recommended changes based on the findings, the implementation process, the principles of the Magellan program, outcomes, and the position of Indigenous families in the Magellan project.

Working together: a model of mediation with Aboriginal and Torres Strait Islander families in the Family Court of Australia.

Ralph S and Meredith S
Family Court Review v. 40 no. 3 Jul 2002 329-337
The Family Court of Australia has employed four Aboriginal Family Consultants within the Family Court Mediation Service in Darwin and Alice Springs. The program encourages and assists Aboriginal and Torres Strait Islander people to use the dispute resolution services provided by the Court, and hopes to promote access to justice in these family law cases. In this article the authors describe how the model operates, and use case studies to demonstrate where the program is successful.

Cultural conflicts in family matters.

Lanteri A
Australian Family Lawyer v. 14 no. 1 Summer 1999 1-3,6-13
Against a background of information about the changing patterns of migration to Australia of different groups of people over the past 30 years, the author discusses Australia's policy of multiculturalism and the philosophy and principles upon which it is based. She then focuses on two aspects of these principles of multiculturalism, setting out aspects of cultural conflicts appearing in case law and examining how the Family Court of Australia has addressed them. These examples are an approach adopted to the determination of the best interests of children when their placement is contested between Aboriginal and non Aboriginal contenders, and the consequences for differing divorce rules in civil and religious courts for Jewish women.

What's new in the Family Court.

Harrison M
Family Matters no. 49 Autumn 1998: 52-53
The particular focus of this family law overview, a regular feature of Family Matters, is a proposal by the Law Council of Australia that model de facto relationships legislation be enacted by each State and Territory as soon as practicable. The background to the proposal is explained; current legislative approaches are outlined; the two disparate approaches to de facto relationships legislation identified by the Council are noted; and brief details of the Council's proposal are provided. Also discussed are the availability of indigenous court interpreters, and the recent endorsement by the Family Court of 'Guidelines for court counsellors regarding the involvement of children in conciliation counselling', and the significance of these guidelines.

4th National Mediation Conference, Melbourne, April 1998: proceedings.

Fisher T and Shaw E
Bundoora, Vic : School of Law and Legal Studies, La Trobe University, 1998
This volume contains papers by most of the speakers at the Fourth National Mediation Conference, held in Melbourne in April 1998. These papers aim to hightlight the scope of mediaton, addressing issues on how mediation will shape the future, past legacies, future challenges for practitioners, effectiveness in reaching relevant members of the community and possible conflict with more traditional dispute resolution strategies such as litigation. Areas covered include: the community sector; family law; mediators working with youth as well as students learning mediation skills in schools; environmental disputes, workplace, industrial and workcover dispute resolution. Many papers have been individually indexed and can be retrieved by searching on the conference name.

Violence and the Family Law Act: financial remedies - discussion paper.

Family Law Council (Australia)
Barton, ACT : Family Law Council, 1998
In 1996 the Family Law Council agreed that a discussion paper should be prepared on the impact of violence on decision-making about property and financial matters in family law disputes. The focus of this paper is on the nature of financial remedies, as part of a property or spousal maintenance settlement or order. Issues discussed include: legal and social developments in attitudes towards violence; issues raised by and related to the submissions including Aboriginal and Torres Strait Islander groups, people of non-English speaking backgrounds, men as victims, damages and property settlements and the Family Law Act, and victims' compensation; legal aid; low income cases; time limits; improving access to assistance; restraining orders; constitutional considerations; compensation as a punitive or compensatory response; onus and standard of proof; cross-vested jurisdiction and personal injury cases in the Family Court; and possible solutions including reform of victims' compensation schemes. Particular issues on which comment is sought are addressed including non-financial remedies and setting aside of property orders.

Working with Aboriginal families: issues and guidelines for family and child counsellors.

Ralph S
Family Matters no. 46 Autumn 1997: 46-50
This article is based on the author's experience as a Family Court counsellor with Aboriginal families in Central Australia over a 12 month period. He seeks to share insights and knowledge gained from providing conciliation counselling to Aboriginal families at times of family breakdown and separation. Issues of cross cultural communication, family violence and service provision are discussed, and guidelines offered to facilitate and promote work in this area. Although the focus is on counselling services, the article offers a range of sensitivities of which family researchers need to be aware.

News from the Family Court.

Harrison M and Sandor D
Family Matters no. 44 Winter 1996: 38-41
This article is part of an occasional series on family law issues which covers a variety of different subjects and points of view. Articles in recent issues of Family Matters have canvassed topics such as indigenous people and the legal system, reforms to the English divorce legislation, the international movement of children and the sterilisation of young people. The present article provides updates on these topics. Details are provided about the extremely laborious passage through Parliament of the English divorce law reforms. Aboriginal and Torres Strait Islander initiatives in the Family Court are outlined, with a focus on the role of the Court's Aboriginal and Torres Strait Islander Awareness Committee. In addressing child abduction matters, brief background to the Hague Convention on Civil Aspects of International Child Abduction is followed by consideration of a recent case where children brought to Australia said they wanted to stay. Finally, sterilisation of children with an intellectual disability is discussed, with reference to Marion's case and JLS v JLW.

Major changes to family law and to the way we practice it.

Pollard J
Law Society Journal v. 34 no. 4 May 1996 41-46
The author outlines and discusses changes which will most affect practitioners once the Family Law Reform Act 1995 comes into effect in June 1996. He suggests that practitioners must carefully consider what changes they will make to their work methods in taking instructions and advising clients on how to proceed because of the new emphasis on primary dispute resolution and the new approach towards parental responsibility. Changes discussed include express recognition of Aboriginal and Torres Strait Islander cultures, grandparents rights, court scrutiny of consent arrangements, and family violence.

Custody in the 1990's: kids stuff? The background to reform in Australia.

Boland J
In: The 7th National Family Law Conference: The 3 R's: relationships, rights, responsibilities: conference handbook. Melbourne, Vic: Television Education Network, 1996, p161-175
This paper examines history leading to the Family Law Reform Act 1995 and recent case law concerning children in an attempt to provide a better understanding of why those changes are recommended. Areas explored include the UK children Act 1989, principles and differences; an examination of the Australian position; aspects of the operation of the Family Law Act 1975; the Family Law Council's letter of advice to the Attorney-General, March 1994; and recent case law prior to the introduction of the Family Law Reform Act 1995. Court decisions are examined in relation to the best interests of the child, the wishes of children, practical difficulties with contact, Aboriginality, violence, joint custody and grandparents. The implications of the Act for family law lawyers, children and parents are analysed.

Indigenous customary law and Australian family law.

Nicholson A
Family Matters no. 42 Spring/Summer 1995: 24-29
In discussion of Aboriginal and Torres Strait Islander customary law, the emphasis has been more on land law and criminal law than on the operation of family law. The author argues that we should seriously examine the ways in which indigenous customary law as it affects the family can be recognised within the Australian legal system. The recommendations of the Australian Law Reform Commissions 1986 report, 'The Recognition of Aboriginal Customary Laws', report no.31 are used as a basis for looking at the specific issues in the area of the family, namely: marriage, custody issues, child protection and care legislation, and adoption. The author argues that the problem of the incorporation of Aboriginal and Islander customary law cannot be adequately solved without addressing the issues of access to justice by Aboriginal and Islander people and without the courts themselves taking steps to become aware of the customs and culture of indigenous people. Developments in this area are described. They include: the setting up of an Aboriginal and Torres Strait Islander Awareness Committee, cross cultural training of judges and court staff in the top end and centre of the Northern Territory, initiatives in Darwin and Alice Springs, and the extension of counselling services to the Torres Strait Islands.

News from the Family Court.

Harrison M
Family Matters no. 42 Spring/Summer 1995: 12-13
The author discusses a recent decision of the Full Court of the Family Court which focuses on several important issues relating to disputes involving children of mixed race parentage. The case B and R and the Separate Representative (1995) FLC 92-636 involved a two year old girl who had been living in Tasmania with her white Australian father for nearly 15 months. Her Aboriginal mother lived in Victoria. Both custody and access were at issue and at first instance custody was granted to the father and access to the mother. The appeal involved three inter-related issues: removal of the child from her natural Aboriginal environment, differential treatment and separate representation. The author also discusses the background to and findings and recommendations of a recently released discussion paper: 'Representing the child's interests in the Family Court' prepared by a Family Court committee.

A judicial perspective on domestic violence in family law.

Moore C
In: Conference papers: challenging the legal system's response to domestic violence. Brisbane, Qld: Southside Domestic Violence Action Group, 1994, paper no.20, 12p
In challenging the legal system's response to domestic violence, the author notes that, until relatively recently, the law legitimized what society condoned: the beating of women by their husbands. She then looks at the attitudes and assumptions implicit in some common expressions to do with violence against women and offers a perspective which is at variance with them. There still remains for all involved in the law the challenge to confront these attitudes and to open up the female perspective for consideration, she argues. Finally, she focuses on custody and access, areas of family law where violence is an issue of concern, and briefly addresses the issue of family violence and Australia's indigenous cultures, outlining what of the Family Court is doing to address some of the problem areas.

The recognition of Aboriginal customary laws.

Australia. Law Reform Commission
Canberra, ACT : Australian Government Publishing Service, 1986
This report on the recognition of Aboriginal customary laws includes sections on general principles, criminal law, and marriage, children and family property. Some traditions and customs relating to marriage and the family in Aboriginal societies are outlined as a basis for the examination of the ways in which the law might be changed to recognise those traditions and customs. Property distribution and protection are discussed; also, Aboriginal child custody, fostering and adoption.

The recognition of Aboriginal customary laws

Australia. Law Reform Commission
Canberra, ACT : AGPS, 1986.
"The focus of ALRC Report 31 (tabled 12 June 1986) was whether it would be desirable to apply, either in whole or in part, Aboriginal customary law to Aborigines - generally or in particular areas or to those living in tribal communities only. In addition, the report addressed whether in criminal cases existing courts should be able to apply Aboriginal customary laws to Aborigines and whether Aboriginal communities should have power to apply their customary laws in the punishment and rehabilitation of Aborigines. The report outlined that, with very limited exceptions, Aboriginal customary laws have never been recognised by general Australian law. It reported that customary laws were a significant influence in the lives of many Aborigines. More importantly however, the report recognised that there was no one 'authentic version' of customary law. Customary law was and continued to be a series of dynamic and changing systems applying to different groups of Indigenous Australians. The report highlighted that Aboriginal people must have the final say in the negotiation and consultation surrounding the recognition of customary law."

Cultural clash and family law.

Reform no. 37 Jan 1985 25-27
Since the early 1970s successive Federal and State governments have actively encouraged the retention of separate cultural and racial identities within the community. The law, in contrast, except for the provision of interpreters, has largely stood above these social changes. This article in the editorial section of the journal briefly discusses the law's lack of flexibility or provision for dealing with the personal relationships and family lives of different cultures. An example of a case (Goudge v. Goudge 1983 FLC 91-534) of custody of three part- Aboriginal children is outlined, including reasons for the judgement, failure of an appeal by the part- Aboriginal mother and a dissenting judgement by the Chief Judge, Justice Evatt emphasising the importance of cultural background to the sense of identity of children. (DW)

Marriage, nullity and divorce.

Dickey A
In: Family law, chapters 6-8. Sydney, NSW: Law Book Company, 1985, p95-196
There are three chapters in this section. 1) Examines marriage - the meaning of the word, the legal definition, grounds upon which a marriage is void - and nullity, setting out the capacity of the parties to be: unmarried (the monogamous character of marriage); to be outside the prohibited relationships (sets out the law on who one cannot marry, and the situation of an adopted child in this regard); to be of marriageable age; to consummate the marriage. Considers also the relevance of the sex of the parties and the situation of homosexual marriages. Also covered are formalities of marriage, consent to marry, intention with regard to the duration of the marriage, and matrimonial relief for a void marriage. 2) Examines the distinction between nullity and dissolution of marriage, dissolution of marriage under the Family Law Act, prospects for change to the ground of dissolution. 3) Considers the distinction between marriage and de facto relationships, the criteria of both, problems of terminology, and recognition of traditional Aboriginal marriages in Australia.

The south-west Aboriginal and family law.

Ruth E
Australian Family Research Conference proceedings : held at Burgmann College, Australian National University, Canberra, 23-25 November, 1983. Vol. 2, Family law. Melbourne, Vic. : Institute of Family Studies, 1984: 135-152
In Western Australia, the Family Court Act allows the provisions of the Family Law Act concerning the future care of children to be extended to couples who are not married and to other interested parties such as grandparents. This paper looks at how Aboriginal families, particularly those from the south-west of Western Australia, the Noongar, currently use these legal provisions. Examines the contact of Aboriginal families at the various levels of the conciliation process, with lawyers, counsellors and the judiciary. The circumstances under which such approaches are made will be discussed within a theoretical analysis of Aboriginal family boundaries and dissolution patterns. Conclusion is that the Family Law Act does not meet the cultural integrity of the Noongar, and that this is revealed by their reluctance to utilise the resources of the Family Court and by the mismatch of family patterns within the two cultures. (Author)
Subscribe to