Enhancing access to family dispute resolution for families from culturally and linguistically diverse backgrounds

Enhancing access to family dispute resolution for families from culturally and linguistically diverse backgrounds

Susan Armstrong

AFRC Briefing No. 18 – November 2010

Overview

All services offered by the Family Support Program (FSP)—managed by the Australian Government Department of Families and Housing, Community Services and Indigenous Affairs (FaHCSIA)—are required to be accessible, equitable and responsive. This includes engaging groups that may have barriers to access, such as families from culturally and linguistically diverse (CALD) backgrounds (Attorney-General's Department, 2007; FaHCSIA, 2006). Social equity and substantive justice are promoted by enabling all Australians, including those from CALD backgrounds, to benefit from and fully participate in universal beneficial services.

This paper explores the extent to which federally funded family dispute resolution (FDR) services are accessible to families from CALD backgrounds. The paper draws extensively on literature identified for, and the findings of a qualitative research project, conducted by the author in a research partnership with CatholicCare Sydney and Anglicare. The project sought to develop a culturally responsive model of family dispute resolution. An important part of the project was to identify strategies that would facilitate greater access to, and participation in, family dispute resolution by individuals and families from culturally diverse backgrounds (Armstrong, 2010).

The paper concludes that CALD families are not proportionally represented as FDR clients, and canvasses some reasons why they may not readily be using these services. Principles and practices are considered that may encourage access to FDR by CALD families and enhance their effective participation in its processes.

Key messages

  • CALD families are not using family dispute resolution services at a rate proportionate to their presence in the Australian community.

  • Recent reviews of FSP services indicated significant gaps in service provision to clients from culturally and linguistically diverse backgrounds, barriers limiting their access to services and a lack of staff confidence to engage with CALD clients.

  • Although CALD couples are not uniformly more likely to separate than couples from an Australian background, factors that may create additional stress on marriages between CALD couples include: stresses from having to adjust to a new socio-cultural and economic life in Australia; forced changes in family structure and roles; disempowerment, loss of confidence, isolation and loneliness; and domestic violence.

  • Reasons why people from CALD backgrounds may not use family mediation include: lack of understanding about services; socio-cultural norms discouraging mainstream help-seeking; lack of trust in mainstream mediation services; uncertainty that services will be culturally sensitive/appropriate; preference to dealing with family breakdown within family or community processes.

  • A culturally competent approach to providing mainstream FDR services to clients from a CALD background is characterised by three features: the service is holistic; it is premised on reciprocal relationships and responsibilities; it is reflexive in its practice.

  • At a systemic or government level, it is important to develop education and information strategies for CALD clients about the nature and benefits of FDR.

  • Identification of the need for and likely use of FDR services should occur on a local level for specific CALD communities. Research on domestic violence in CALD and refugee communities has emphasised the importance of framing positive messages reinforcing specific community values such as family harmony and the effects of violence on children.

  • Developing links with CALD community services and leaders creates opportunities to develop personal relationships with key individuals in CALD communities and, through these, with potential clients.

  • Some CALD communities have indicated that they would be prepared to use family dispute resolution if they had confidence in the cultural sensitivity of the services and mediators.

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Terminology

Terminology

Terminology

One of the key principles informing good practice with culturally and linguistically diverse communities is to acknowledge diversity within and across-cultural groups, and to tailor services appropriately (Page, Whitting, & Mclean, 2007). The concepts and language we use to talk about cultural diversity can tend to work against that very objective. The CALD acronym referring to cultural and linguistic diversity tends to homogenise ethnic minority communities and to erase that diversity. However, as this is the term currently used in Australia, and it has informed policy and data gathering frameworks, I will continue to use it in this paper (Commonwealth Interdepartmental Committee on Multicultural Affairs, 2001; Australian Bureau of Statistics [ABS], 1999). The cultural groups most often disadvantaged and marginalised from mainstream services are those whose English language proficiency is limited, and whose cultural norms, values, beliefs and practices are collectivistic in orientation (Sawrikar & Katz, 2008; Luckett, Blignault, & Eisenbruch, 2006). It is these cultural groups who are the main focus of this discussion.

Use of family dispute resolution services

Use of family dispute resolution services

Family dispute resolution is offered by government and non-government organisations and private practitioners throughout Australia (see Box 1). Not all disputing separated parents attend FDR, however, with some choosing to take no action and about one third choosing instead to discuss the separation with their former partner, family, friends or community supports (Kaspiew et al., 2009). Those who do use services are more likely to contact more than one service, mostly counselling, mediation and legal services. Compared with parents who don't use any service, parents who do are more likely to be better educated, earn more, have been married, and also to have experienced serious problems including violence, mental health and substance abuse problems (Kaspiew et al., 2009).

Parents who attend family dispute resolution may be assisted to collaboratively and informally reach their own agreements, and possibly to improve their parenting skills and their relationship with their former partner, and therefore benefit their children, their family and themselves (Fisher & Brandon, 2009; Baruch Bush & Folger, 2005). However, the benefits of FDR may not be universally available or achievable. The value of family mediation for women has been questioned (Alexander, 1997; Bryan, 1992; Field, 1998, 2005), particularly for those women who have experienced violence or are party to complex disputes exacerbated by a range of familial socio-health problems (Astor, 1991; Field, 2006; Kirkwood, 2007). The cultural fit of mainstream mediation generally, and family mediation in particular, for people from Indigenous and culturally diverse backgrounds has also been challenged (Cuneen, Luff, Menzies, & Ralph, 2005; LeResche, 1992; Sauve, 1996; Shah-Kazemi, 2000).

The evaluation of the 2006 family law reforms, which included an increased emphasis on family dispute resolution, concluded that this process was an "important step" for about one-third of separated parents in resolving their disagreements with their former partner (Kaspiew et al., 2009, p.104). For most parents who used it, FDR also provided a context for ultimately facilitating an agreement which suited the parents and which was child-focused. While they weren't always satisfied that they got the help they needed, most reported the FDR and FRC processes were relatively prompt, very affordable, fair and of good quality (Kaspiew et al., 2009). While mothers reported slightly less satisfaction with FDR, mediating or counselling than fathers did, mothers overwhelmingly recommended that others in similar circumstances should use FRCs (Kaspiew et al., 2009). While FDR will not suit all people or all disputes, this evaluation suggests that if families from CALD backgrounds are less likely to use FDR, they may be missing some of the benefits that FDR appears to be providing to some separated families. A lawyer in a faith-based service for women experiencing violence has observed that the post-separation experience for CALD families:

can be made better so that we're not going to the court system which we know is detrimental to the women that we service. We know that they don't like it and it's costly. So it's terrible that [an FRC] service can exist in a community ... and for whatever reason isn't being utilised to its fullest capacity. (Armstrong, 2010, p. 57)

It is important then, to explore whether and how families from culturally diverse backgrounds might make more use of family dispute resolution.

Family dispute resolution

Family dispute resolution is a form of family mediation which assists parents to resolve differences about the care of their children following separation. It may also assist couples to separate their joint property.* The federal government funds community based organisations under the Family Support Program to deliver a range of services to promote positive family relationships, including family dispute resolution. Sixty-five Family Relationship Centres (FRCs) in regional and metropolitan cities across Australia offer subsidised family dispute resolution.**

Since July 2008, separated parents who cannot reach agreement about their children must attend family dispute resolution and make a "genuine effort" to resolve any disputes before they can apply to the Family Law Courts to determine the matter, although exclusions may apply (Family Law Act 1975 s60I). This means that family dispute resolution is essentially a compulsory gate through which disputing separated parents must pass before they enter any family courts, although party attendance may still be consensual (Polak, 2009; Cooper & Field, 2008).

How many people attend family dispute resolution?

In 2008–09, FRCs provided FDR to almost 23,000 clients (an average of 354 FDRs per FRC) and non-FRC community based services offered FDR to about 7,000 clients (FaHCSIA, 2010a). In the same year, the Telephone Dispute Resolution Service closed 2,687 cases in which FDR was conducted (FaHSCIA, 2010c).

Legal Aid Commissions in each state collectively offered more than 7,000 family dispute resolution conferences to their clients in 2007–08 (KPMG, 2008). About two-thirds of family mediation or dispute resolution conducted since 2006 has occurred in FRCs, the rest was provided by Legal Aid, lawyers and courts (10%), private counselling or mediation services (12%) and over the phone (2%) (Kaspiew et al., 2009).

* In May 2010 the Federal Attorney General extended the requirement to attend family dispute resolution to property and spousal maintenance matters (McClelland, 2010b).

** Initially, three free hours of FDR were offered to couples. In the 2010 Budget, the Federal Attorney General proposed that the first hour of FDR will remain free and not means tested, but that the cost of subsequent hours will be means tested. (McClelland, 2010a).

Understanding CALD access to family dispute resolution and family mediation

Understanding CALD access to family dispute resolution and family mediation

While all federal family support services are required to offer accessible, equitable and responsive programs, it appears that CALD families are not using family dispute resolution at a rate proportionate to their presence in the Australian community. The 2006 Australian census shows that 22% of the population were not born in Australia, 15% speak a language other than English at home and 14% were born in a country where English was not the main language spoken (ABS, 2007).

The Family Support Program currently calculates CALD data according to the proportion of clients born in a country where English is not the dominant language. Table 1 illustrates the proportion of CALD clients using different Family Support Program services. In 2008–09, CALD clients comprised 10% of non-FRC FDR service clients, 8% of FRC clients, and 3% of Regional FDR clients. Eight percent of all FDR clients, and of all FSP service clients, were of CALD background. This latter figure is a significant increase from 2002–03, when only 2.4% of all FSP clients' first language was not English. (Urbis Keys Young, 2004, p. 18). The requirement to attend FDR after July 2008 does not seem to have had any significant effect on the patterns of CALD use of FDR (FaHSCIA, 2010a). While it is important to understand how specific cultural and ethnic groups use family dispute resolution, the available data do not reveal this. Although Family Support Programs did collect data on clients' country of birth and ancestry, these data were not publicly accessible and are now no longer collected.1

Table 1. Percentage of CALD clients in Family Support Program services
Family support program services % CALD
2006-07 2007-08 2008-09
Adolescent Mediation and Family Therapy 7 6 7
Children's Contact Services 5 5 5
Counselling 9 8 9
(Non-FRC) FDR services 8 9 10
FRC FDR services 7 7 8
Family Relationships Education and Skills Training 9 10 9
Men and Family Relationships 16 12 11
Parenting Orders Program 13 10 8
Regional FDR 3 2 3
Specialised Family Violence Service 7 7 7
Total FDR services 7 7 8
Total of all FSP services 9 8 8

Source: Australian Government, Clients Seen: Service Type 01/07/2006 to 30/06/2007; 01/07/2007 to 30/06/2008; 01/07/2008 to 30/06/2009. Reports generated by FSP Online at 1 April 2010 (FaHCSIA, 2010a)

The under-representation of CALD clients in family dispute resolution continues a general pattern of the presence of CALD families in family relationship and family mediation services. A 1995 evaluation of Commonwealth-funded marriage and relationship counselling services, when the proportion of Australians born in non-English speaking (NES) countries was 13%, revealed that couples in cross-cultural relationships and couples who were both from an NES background were a relatively low percentage (4% and 10% respectively) of total client caseload (Stoyles, 1995). Recent reviews of FSP services indicated significant gaps in service provision to clients from CALD backgrounds, barriers limiting their access to the services and lack of confidence by staff to engage with CALD clients (Colmar Brunton Social Research, 2004; Kaspiew et al., 2009; Urbis Keys Young, 2004). A review of family dispute resolution in Legal Aid Commissions nationally reached similar conclusions (KPMG, 2008). Half of FRC staff surveyed for the evaluation of the 2006 family law reforms believed there were language barriers to using their services, and nearly two thirds thought that cultural barriers might limit the use of the FRC (Kaspiew et al., 2009).

Research about earlier Australian family mediation programs presents a slightly different picture. In the mid-1990s evaluations of voluntary community and family court mediation services in Sydney and Melbourne indicated that between 12 - 15% of clients were born in NES countries (Bordow & Gibson, 1994; Love, Moloney, & Fisher, 1995; Moloney, Fisher, Love, & Ferguson, 1996). While these figures reflect the proportion of CALD people then in the Australian community, the CALD individuals attending mediation in these studies were not necessarily representative of the broader CALD population. In one study only 9% of clients were women from NES backgrounds, less than 2% of participants did not speak English at home and only one person required an interpreter for the mediation session (Love et al., 1995). These studies of family mediation (and studies of access to marriage counselling) reveal that the CALD couples who used these services were more likely to be from higher educational, occupational and socio-economic backgrounds, as were other non-CALD users (Love et al., 1995; Moloney et al., 1996; Stoyles, 1995).

1 From July 1 2010, FSP services only collect data on language spoken at home and English-speaking proficiency, and no longer collect data about country of birth, year of arrival or ancestry (FaHCSIA, 2010b).

Understanding the under-utilisation of family dispute resolution by CALD families

Understanding the under-utilisation of family dispute resolution by CALD families

Family dispute resolution aims to assist separated parents and others affected by the separation to reach agreement about future parenting. To understand why CALD families may be less likely to use family mediation and dispute resolution services, the need for these services must be contextualised in the patterns of separation and divorce in Australian CALD communities, the circumstances that influence their relationships, and their subsequent help-seeking.

Separation and divorce in CALD communities

The under-representation of CALD couples in family dispute resolution services may not be surprising if there is less need for post-separation services because CALD families are less likely to separate. While there seem to be cultural taboos against separation in some CALD communities, the available data do not uniformly demonstrate this trend. The recent Australian Institute of Family Studies evaluation of the 2006 family law reforms, which drew on nationally representative data of separations after 2006, indicated that the proportion of separated fathers born outside Australia was 19% and the proportion of mothers was 15% (Kaspiew et al., 2009, p. 24). However, the data did not distinguish those born in countries where English is not the main language spoken. In 2001, Australia had the third highest crude divorce rate after the United States and United Kingdom (de Vaus, 2004). The 2001 data tell us that, compared to the Australian born population:

  • those born in English-speaking background countries (United Kingdom, New Zealand) have higher rates of divorce (Hewitt, 2008);
  • some from non-English-speaking background (NESB) countries of origin (including those from Thailand, China and Vietnam) have a higher divorce rate and marriages last a shorter time (de Vaus, 2004; Khoo & Zhao, 2001);
  • other NESB countries of origin (including Lebanon, Turkey, Italy and Greece) have a lower risk of marriage breakdown and marriages are generally longer (de Vaus, 2004; Khoo & Zhao, 2001);
  • the rate of divorce is higher in cross-cultural marriages, often more than twice the rate for individuals born overseas who marry someone born in the same country (de Vaus, 2004).

The reasons for some of these trends "may be cultural in origin" (de Vaus, 2004, p. 217), but it may also reflect the "changing dynamics" of marriage and family resulting from migration and the "acculturative stress resulting from the process of resettlement in a new country" (Stoyles, 1995, p. 13; Doyle, 2000). Factors which may create additional stressors on marriages between CALD couples, and especially on cross-cultural marriages, include:

  • adjusting to a new socio-cultural and economic life in Australia, where difficulties in establishing stable housing and suitable employment are associated with financial insecurity, loss of breadwinner status, and sometimes an increase in gambling, substance abuse or domestic violence (Stoyles, 1995; Legal Services Commission of South Australia [LSCSA], 2004b).
  • forced changes in family structure and roles (often resulting in stresses on culturally expected gender roles) which may lead to loss of identity, respect and authority for men, and a perception that Australian law and social security encourages the rights and independence of women at the expense of men (Driekorn, 1993; LSCSA, 2004a; Rees & Pease, 2005; Stoyles, 1995);
  • disempowerment, loss of confidence, isolation and loneliness, particularly for women who may have few extended family or community supports or limited English (Sims, Guilfoyle, Kulisa, Targowska, & Teather, 2008; Stoyles, 1995);
  • clashes between mainstream social expectations and migrant family values and practices, and conflicting expectations where a couple is from the same cultural background, but one member is recently arrived from the country of origin (Sims et al., 2008; Pankaj, 2000; Dreikhorn, 1993); and
  • cross-cultural conflict—particularly concerning child rearing, different religious beliefs and providing financial support to extended families—and inter-generational conflict, with extended family members, or with children, as parents struggle to maintain their families' cultural identity and to adapt to the expectations of Australian mainstream culture (Dreikhorn, 1993; LSCSA, 2004c; Sims et al., 2008; Stoyles, 1995).

The World Health Organization has observed that:

Intimate partner violence is usually at its highest point when communities are in transition, when women begin to assume non-traditional roles or enter the workforce, or when men are less able to fulfil their culturally expected roles as providers and protectors. (Krug et al., cited in Rees & Pease, 2005, p. 2)

The presence of domestic violence may also contribute to separation. The incidence of domestic violence is significantly higher among the separated and separating population than in the broader community (Kaspiew et al., 2009; Mouzos & Makkai, 2004; Sheehan & Smyth, 2000). Research about litigated family law children's disputes has identified a high incidence of multiple forms of serious violence and complex and compromised socio-health profiles among parents and children (Brown, Frederico, Hewitt, & Sheehan, 1997; Brown Sheehan, Frederico, & Hewitt, 2001; Hunter, 1999; Kaspiew et al., 2009; Moloney et al., 2007). Families using FSP services are also presenting increasingly complex profiles with a high incidence of violence and risk of harm to children (Urbis Keys Young, 2004). While the 2005 ABS Personal Safety Survey indicated that the rate of partner violence is no higher in CALD communities, immigrant and refugee women (and children) may be particularly vulnerable to the effects of this violence (ABS, 2006; Rees & Pease, 2007). This may be due to cultural, religious and familial factors that discourage recognition and disclosure of violence, reporting to police or seeking other assistance in relation to it (Partnerships against Domestic Violence, 2000; Mouzos & Makkai, 2004).

Attachment to traditional cultural norms, religious affiliation and the experience of migration may also discourage separation and divorce (de Vaus, 2004; Hewitt, 2008). In some cultural and faith communities separation and divorce are shameful and there is significant pressure on estranged couples to reconcile (LSCSA, 2004a, 2004b, 2004c). Separation may not occur because of cultural pressure and taboo, as well as lack of support structures, financial insecurity, fear of deportation or presence of domestic violence (Australian Law Reform Commission [ALRC], 1992). Consultations with a wide range of cultural communities indicated less tolerance for marriage breakdown than for domestic violence, suggesting significant obstacles to voluntarily approaching post-separation services (Partnerships against Domestic Violence, 2000).

Like many separating families, those from culturally diverse backgrounds may need assistance at, or following, separation. It is quite possible that the need of some CALD families will be acute because of their particular experience of migration and acculturation and the resultant disadvantage and marginalisation they face.

Help-seeking by CALD families

Most people will turn first to family and friends and non-legal professionals to resolve problems (Access to Justice Taskforce, 2009). This trend may be particularly pronounced among people whose cultural norms are collectivistic. Collectivist cultural norms value family obligations over individual autonomy, are characterised by hierarchies based on age and gender, and emphasise the role of the family and community in providing support, which may discourage approaching outsiders for assistance (Sawrikar & Katz, 2008). These norms will also influence help-seeking for legal problems.

Legal help-seeking

Vulnerability to disadvantage is generally correlated with reduced access to, and use of, legal services (Coumarelos, 2006). People of non-English speaking background are less likely than English speaking migrants to recognise a problem as a legal problem, less likely to report experiencing legal problems and less likely to seek help for them (Coumarelos, 2006). Research has consistently shown that migrant and refugee women in particular lack knowledge about the legal system, their legal rights and whom to approach for assistance (Women's Legal Service, NSW [WLS], 2007; Women's Legal Resources Centre, 1994). The reasons suggested for these trends include ignorance of legal rights and avenues for resolution, an absence of accessible information, lack of effective referral processes between community agencies and legal fora, and poor translating and interpreter services (WLS, 2007; Coumarelos, 2006).

Family law services

Two-thirds of separating parents sort out parenting arrangements largely by discussing it between themselves, although about half of these parents also use some other mainstream services as well, mostly counselling or mediation (Kaspiew et al., 2009). People born in a non-English speaking country were more likely to agree that formal processes and professionals like lawyers and courts would protect their interests better than a mediator and that it was preferable for courts to decide the outcomes of problems (ACNielson, 1998). In a 1999 study of family law litigation, non-English speaking clients were 26% of publicly funded clients whose median time in Australia was 11 years (Hunter, 1999). Eleven per cent of publicly funded clients required an interpreter, although some services were required to provide interpreters for a third of clients. The NES parties may not have chosen to seek legal help, but may have been drawn into the litigation by the other party or by child protection concerns, as the matters were generally complex disputes about children which also featured multiple forms of violence, including child abuse.

Reasons for under-utilisation of FDR

As the discussion above has suggested, people from culturally diverse backgrounds under-utilise mainstream family dispute resolution services. The reasons for this overlap with the factors that discourage men and women of CALD backgrounds from seeking help from other mainstream services (Sawrikar & Katz, 2008). Research has also suggested some specific reasons why people from culturally diverse backgrounds may not use mainstream family mediation, including:

  • Lack of understanding about services: People who speak a language other than English at home are less likely to know about mainstream family mediation services (ACNielson, 1998; Dimopoulos, 1998; Hughson, 2002). Some believed mediation encouraged separation and family division and thought that mediation services should do more to facilitate reconciliation (Armstrong, 2010; LSCSA, 2004a, 2004c). This lack of knowledge about mediation was shared by agencies working with CALD communities. There was mutual ignorance by mediation services about community agencies, resulting in poor referral and support networks (especially for refugee women) (Armstrong, 2010; Dimopoulos, 1998; Hughson, 2002).
  • Socio-cultural norms discouraging mainstream help-seeking: Cultural expectations for couples to stay together, and the shame and failure associated with separation, especially for some CALD women whose role is to maintain family unity, inhibit help-seeking from mainstream family services (Partnerships against Domestic Violence, 2000; Frederico, Cooper, & Picton, 1998; Hughson, 2002; Stoyles, 1995). The 1998 Australian family mediation survey indicated that people who speak a language other than English at home were significantly more likely to agree that people should solve problems themselves, that problems should be kept within the family, that strangers cannot help solve problems and that personal matters were too private to discuss with a stranger (ACNielson, 1998).
  • Lack of trust in mainstream mediation services: Workers with Arabic Muslim communities referred to perceptions that mainstream service personnel held racist and stereotypical views of Arabic Muslims, did not appreciate the significance of Islam for Muslim people or that there were different versions of Shari'a law (Dimopoulos, 1998). Lack of trust in and respect for the capacity and authority of mainstream mediation professionals to resolve family disputes informally was said to discourage use of mediation among some culturally diverse communities (ACNielson, 1998; Frederico, et al, 1998).
  • Uncertainty that services would be culturally sensitive: Some in CALD communities were uncertain that mediators would be experienced enough to understand their problems, or be aware of their cultural background, their religion, the differences between new, emerging and established communities, or their experience of displacement, migration or resettlement (Armstrong, 2010; Hughson, 2002; LSCSA, 2004a, 2004b; Pankaj, 2000). Others believed that mainstream mediators held Anglo-centric views about "who is family" (Dimopoulos, 1998). Some ethnic minority men perceived that mediation services were dominated by women, encouraged divorce and were more supportive and sympathetic towards women as compared to men (LSCSA, 2004b; Pankaj, 2000). Religiously observant women might be reluctant to attend FRCs and be judged by an unfamiliar service at a time when they felt very vulnerable (Armstrong, 2010).
  • Uncertainty that services would be culturally appropriate: Arabic Muslim community workers challenged the appropriateness of mediator neutrality where cultural assumptions led to expectations that a mediator would act as an arbitrator or final decision-maker (Dimopoulos, 1998). The expectation that a third party would be an expert who would advise, provide moral guidance and arbitrate was identified as a cultural barrier to potential clients from some cultural minorities (Armstrong, 2010; Frederico et al., 1998).
  • Preference to deal with family breakdown within family or community processes: Some members of cultural or faith-based communities preferred, or felt obliged, to use family, community or religious forms of dispute resolution to encourage reconciliation or to resolve difficulties following separation (Armstrong, 2010; Dimopoulos, 1998; Krayem, 2009; LSCSA, 2004a, 2004b, 2004c). Community processes were "not impartial", and were preferred by some CALD community members who "will not access somebody that's neutral and has no opinion" (Armstrong, 2010, p. 56).
  • Communication barriers: Where there was understanding about mainstream mediation, the limited availability of bilingual and bicultural mediators discouraged use of mediation services by some CALD people (Armstrong, 2010; Dimopoulos, 1998; Hughson, 2002; Pankaj, 2000). Where CALD communities were small there was a lack of trust in interpreters and concerns about confidentiality (Hughson, 2002). Workers with Victorian Arabic Muslim communities expressed a need for mediator awareness of cultural communication patterns (Dimopoulos, 1998).

Despite expressing reservations about family mediation, a significant proportion of those surveyed in the 1998 Australian family mediation survey who spoke a language other than English at home agreed that they would be willing to use it (ACNielson, 1998). Consultations with African, Middle Eastern and Asian communities in South Australia indicated that although family mediation was regarded with suspicion, it might be acceptable if the problem could not be resolved by family and community, if communities were educated about this concept and if mediators understood their cultural contexts (LSCSA, 2004a, 2004b, 2004c). Scottish ethnic minority communities appreciated the child-centred nature of family mediation services and saw them as suitable alternatives to the legal process, so long as professionals were competent and culturally sensitive (Pankaj, 2000).

The reasons offered for an under-utilisation of mainstream mediation services by CALD families suggest a complex interplay of cultural, religious, structural and service factors. The influence of other demographic dimensions such as educational or socio-economic status should also not be underestimated (Chand & Thoburn, 2005; Creasy & Trikha, 2004; Katz, La Placa, & Hunter, 2007). Some perceptions are based on misunderstandings. There is little explicit research about the factors that might facilitate a greater use of family mediation by CALD families. Therefore this survey of research about barriers to using family mediation provides a guide about the factors that CALD communities and those working closely with them think are important.

Cultural prohibitions against separation will deter some CALD families from approaching mainstream services for assistance concerning separation. However, it is possible that a more representative proportion of those from CALD communities may access and use mainstream FDR services if some of the specific factors discussed above are addressed in the context of good practice of engaging CALD families in mainstream family services.

Increasing CALD access to FDR

Increasing CALD access to FDR

Principles for engaging culturally diverse communities

A review of the Family Relationship Services Program in 20042 observed that "given the distinctive issues and barriers that may affect people and families of non-English speaking background, it was widely accepted that it is not sufficient simply to try to make existing services more accessible to these different client groups" (Urbis Keys Young, 2004, p. 59). The discussion above has identified a number of factors which should be considered when seeking to provide FDR services to CALD clients. These include the need to:

  • acknowledge difference within and between CALD communities;
  • acknowledge the importance of religious and cultural values concerning family, marriage and parenting, and the shame associated with separation and with domestic violence;
  • identify the influence of structural factors on the migration and settlement experience and the impact of this experience on couple and family relationships;
  • recognise the important gate keeping role played by community based services assisting CALD and faith communities;
  • work in partnership with CALD communities and services to develop the most appropriate ways to promote and provide FDR services to their community members;
  • communicate more effectively with CALD communities and service providers about the nature, value and limits of mainstream family mediation and its difference to counselling and other relationship and dispute resolution services;
  • supplement existing community dispute resolution processes; and
  • ensure the development of culturally competent FDR services and professionals.

Organisations that successfully engage and appropriately serve CALD clients may be described as culturally competent, although different terms are preferred in other contexts, such as culturally effective (Kelly, 2008; National Alternative Dispute Resolution Council, 2006), or culturally responsive (Armstrong, 2010; Department of Immigration and Multicultural Affairs, 1998). A reputation for culturally competent services is likely to attract CALD users to it. So too is a reputation for quality services which result in safe and appropriate outcomes for families, particularly among CALD service providers who refer their clients to specialised services. A culturally competent approach to providing mainstream family dispute resolution services to clients from culturally diverse backgrounds is characterised by three features:

  • It is holistic: It is holistic because each element of the service system—systemic, organisational, professional and individual—takes responsibility for developing and demonstrating cultural competence in their service provision (National Health and Medical Research Council [NHMRC], 2005). Holistic mainstream FDR service provision displays respect for existing community dispute resolution processes in adapting their services for CALD clients (Frederico et al., 1998). A holistic approach does not over-emphasise or under-emphasise culture but sees it as an important dimension of individual and community identity, intersecting with other factors such as class, gender and religion.
  • It is premised on reciprocal relationships and responsibilities: Culturally competent FDR services foster relationships with gatekeepers to CALD communities to engage in reciprocal learning and to develop mutual referral pathways. While reciprocity is an important principle, this must be tempered by an acknowledgement that CALD communities are minority communities. Mainstream FDR services should acknowledge and supplement existing community dispute resolution processes; build community capacity to utilise mainstream services; and ensure that community engagement is supported by adequate and sustainable funding and realistic timeframes (Armstrong, 2010; NHMRC, 2005).
  • It is reflexive in its practice: Because a culturally responsive model of family dispute resolution is neither culturally specific nor culturally exclusive, it requires that mainstream organisations and professionals engage in an ongoing process of conscious and critical reflection and learning, or reflexivity, about the relevance of cultures to their professional practice (Armstrong, 2010; Bagshaw, 2008, 2005; Frederico et al., 1998). This will foster professional capacity to respond flexibly to parties' wholeness and to their specificity, and to develop a repertoire of culturally responsive strategies in their FDR practice.

Good practice engaging culturally diverse communities

The available evidence about successful engagement with culturally diverse communities often concerns parenting services, and only some of this literature draws on Australian experience (Sawrikar & Katz, 2008). These strategies may not necessarily be transferable. The context of separation for CALD families is overlaid with complex socio-cultural, religious and gender dynamics. Family dispute resolution services wishing to attract a greater proportion of CALD clients need to work with these dynamics, and to recognise that there may be more barriers to using a service perceived as facilitating separation than a service that more benignly supports parenting. For this reason, successful programs engaging CALD communities in campaigns about domestic violence may also provide useful guidance for enhancing the cultural competence of FDR services (Partnerships against Domestic Violence, 2000). The innovative strategies of the FSP Men and Family Relationships program in successfully engaging a representative proportion of men from culturally diverse backgrounds (and also a large proportion of Indigenous men) offer a model of engaging with CALD communities that FDR services could adapt (FaHSCIA, 2010a; O'Brien & Rich, 2002). The success of this program is particularly salutary, as engaging men from ethnic minorities in parenting and relationship services is widely regarded as very challenging (Sawrikar & Katz, 2008; Page et al., 2007).

The following discussion draws on a range of sources to identify good practice in engaging CALD families in mainstream services. These practices, and the principles informing them, may also encourage separated parents from CALD backgrounds to use and to effectively participate in mainstream FDR. Services providing FDR which wish to attract more CALD clients should:

  • implement a policy and monitoring framework to engage CALD families;
  • respond to CALD communities' needs and contexts;
  • engage CALD service providers and community leaders;
  • develop partnerships and contribute to building community capacity; and
  • foster a culturally competent workforce and processes that facilitate the effective participation of CALD clients.

Implementing a policy and monitoring framework to engage CALD families

For more than a decade, researchers have been calling for a national research strategy on the family dispute resolution needs of CALD communities (Dimopoulos, 1998). This research would inform policy-makers and service providers as well as identifying or developing culturally responsive models of family dispute resolution. It would also guide educational and information strategies for CALD consumers about the nature, benefits and appropriate use of family dispute resolution. While education must also occur at other levels, a more systemic approach may be needed with greater resourcing to mount an effective national campaign for CALD communities to dispel misunderstandings about mediation. At this level, it may also be possible to refine a "whole of government" service approach for CALD clients. For example, the proportion of clients accessing Centrelink social security payments who are born overseas is 20%, half of whom require interpreter assistance (Centrelink, 2009).3 Centrelink has an extensive network of Multicultural Service Officers whose role is to assist individuals and facilitate relationships between CALD communities and government agencies. There may be opportunities for Centrelink to refer separated parents in receipt of its payments to other government services for separated parents, including to family dispute resolution.

At the organisational level, successful engagement with CALD families is guided by clear goals implemented by organisations that have commitment and capacity to sustain this engagement (Bowen, 2008; Bridging Refugee Youth and Children's Services [BRYCS], 2002; National Centre for Cultural Competence [NCCC], n. d.). A cultural self-assessment will enhance awareness of the organisation's "own cultures and communities, assumptions, and biases and identify actions to reduce such barriers" (Ethnic Communities' Council of Victoria [ECCV], 2006, p. 2; Olavarria, Beaulac, Bélanger, Young, & Aubry, 2005).

Strong leadership within organisations is required to establish a rationale for and to promote self-assessment in the broader context of enhancing access and equity for CALD communities. Self-assessment also requires structured support and dedicated resources (Armstrong, 2010; Butt, 2006; NHMRC 2005; Goode, Jones, & Mason, 2002). An assessment should result in the inclusion of cultural competence goals into mission statements, policies, procedures and practices (Ethnic Disability Advocacy Centre [EDAC], 2005). It should also identify responsibility for implementing targets and benchmarks for monitoring and evaluating service delivery (Butt, 2006; Page et al., 2007).

Responding to communities' needs and contexts

The author is unaware of there being any consultation with CALD communities prior to the introduction of mainstream FDR services. Mediation is widely recognised as reflecting dominant cultural norms and some CALD communities have existing processes for resolving disputes. However, identification of the need for and likely use of FDR services by specific CALD communities should still occur on a local level. It is important that FDR services not assume that all CALD clients will benefit from using FDR, and develop local strategies for talking about FDR and of making their services more culturally responsive.

Understanding communities' service needs requires a sound appreciation of the diversity of local communities and the nature and relevance of cultural practices for specific communities, as well as their likely need for post-separation relationship services. Demographic data about country of birth, religious affiliation, language spoken at home, English proficiency, recency of arrival, rate of relationship breakdown and socio-economic wellbeing can provide a cultural, linguistic, religious and socio-economic profile of local communities (.id demographers, 2006). These data also establish a standard against which to measure the representation of CALD communities in the client base, and enable more informed planning, implementation and evaluation of services (Armstrong, 2010; EDAC, 2003).

Research within CALD and refugee communities and services about domestic violence provides some guidance about appropriate information strategies. This research has emphasised the importance of framing positive messages reinforcing community values such as family harmony and the effect of violence on children and of tapping into cultural and religious values, structures and practices that discourage violence (Bonar & Roberts, 2006; Partnerships against Domestic Violence, 2000). These approaches may be adapted by FDR providers in their information strategies and in FDR processes with CALD clients, particularly in light of a common desire by all parents for "a better future for all children" (Family Court of Australia [FCoA], 2008, p. 7).

Engaging CALD service providers and community leaders

The most valuable sources of information about CALD communities are credible ethno-specific, multicultural and faith-based service providers to these communities. Mainstream organisations wishing to provide appropriate services to CALD communities, and to understand how best to do this, would benefit from working with these community gatekeepers (Sims et al., 2008; Barrett, 2008; LSCSA, 2006; EDAC, 2003; BRYCS, 2002). Mainstream FDR providers should approach and consult a broad spectrum of organisations to "find out what the issues are and don't assume anything about that community" (Manager, faith-based women's service: Armstrong, 2010, p. 61).

In a similar fashion, FDR providers need to develop links with community and religious leaders and elders. While community leaders are part of the "dominant sub-culture of a community" and their intervention may "reproduce existing power structures and inequalities" (Frederico et al., 1998, p. 28) they are very influential and will often be consulted when family resources cannot resolve problems, particularly at separation. As a lawyer from a faith-based service commented, "religious leaders play such an important role at times of family disputes, even for people who have a very low level of religiosity" (Armstrong, 2010, p. 62).

Developing links with services and leaders creates opportunities to develop personal relationships with key individuals in CALD communities, and through these, with potential clients. A review of successful mainstream service provision to hard-to-reach parents in Britain found that personal relationships were a major factor influencing parent engagement and inclusion (Katz et al., 2007). There are other potential benefits of developing relationships between mainstream and CALD services, including:

  • increasing FDR service providers' knowledge of community networks, social structures and key relationships. This leads to better understanding of the heterogeneity of communities, so increasing FDR services' cultural competence (NHMRC, 2005);
  • understanding the barriers inhibiting access by specific CALD communities to FDR services and developing effective ways to address some of these barriers (Armstrong, 2010);
  • fostering trust in FDR provider capacity to work sensitively and effectively with CALD families in crisis, and establishing mutual referral protocols between organisations (Armstrong, 2010; Katz et al., 2007; Porteus, 2007);
  • improving mainstream program delivery and integration by drawing upon the skills and expertise of culturally specific and multicultural services (Sims et al., 2008; EDAC, 2005, 2003); and
  • providing information that targets word-of-mouth networks, which are often the principal source of information for many ethnic communities (Home Office, 2004, cited in Butt, 2006; O'Brien & Rich, 2002).

Example: Developing mutual referral pathways

Establishing good relationships with religious and community leaders could facilitate the development of mutual referral pathways. As one family dispute resolution practitioner explained:

For a lot of the CALD clients we see it's a double issue. It's not just their ethnicity, it's their ethnicity plus their religious affiliation … It's very handy to utilise the supports that are there within their faith and in their community … We're moving them to their religious leaders where we can … That's where we have the most success … We can move them that way and hold them in our process while they seek that support. (FDR practitioner, FRC: Armstrong, 2010, p. 63)

Developing partnerships and contributing to building community capacity

A key objective of engaging with CALD communities' services and leaders is to develop mutually beneficial partnerships to better serve these communities. Partnerships supplement mainstream agencies with the skills, knowledge and networks of community agencies, instead of trying (unsuccessfully) to replicate them. Ultimately a partnership approach should build community capacity to make effective choices and to facilitate and strengthen the development of social support networks within local communities and with existing outside resources (Armstrong, 2010; NHMRC, 2005; Page et al., 2007; Sims et al., 2008). The evaluation of the FSP Men's Services Program's which successfully targeted CALD men observed that:

Sometimes an organisation will simply have to accept that they are lacking the necessary infrastructure, staff, or skills, to really engage with the … ethnic target group, no matter how strong their desire to do so may be. The most cost effective option in this case is to consider some form of partnership with an organisation which does have expertise in working with the particular cultural group. (O'Brien & Rich, 2002, p. 65)

Strategies that have worked, or have been suggested by CALD community consultations, include:

  • supplementing existing community services, including community dispute resolution and traditional mediation processes (Armstrong, 2010);
  • offering outreach services, or FDR services in CALD community services' premises (Armstrong, 2010);
  • providing community education about family separation, family dispute resolution, impact of separation on children, domestic violence, legal and support structures and consulting about how best to address these issues (Armstrong, 2010; Barrett, 2008; LSCSA, 2006);
  • adopting a "multi-sectoral or multi-tiered collaborative approach" to spread the cost and draw on wide expertise, and to "avoid consultation fatigue" by communities and by agencies (FCoA, 2008, p. 44);
  • developing communication and information strategies that are "flexible and multi-faceted" and customised to the cultural, linguistic and educational needs and backgrounds of the participants (Dimopoulos, 1998; LSCSA, 2006; O'Brien & Rich, 2002), for example, offering gender-specific programs about parenting, or to modify such programs to reflect clientele languages and literacy levels (Armstrong, 2010; O'Brien & Rich, 2002; WLS, 2007); and
  • adapting existing mainstream programs, such as parenting programs, for specific communities to reflect cultural parenting practices (Armstrong, 2010), as this may create "back door opportunities" to engage families so that they become familiar with and later utilise the service (Barrett, 2008).

Examples: Developing partnerships

  • Two Melbourne FRCs and several other community service providers organised a community forum attended by more than 100 service providers to explore the needs of people from CALD backgrounds about family relationship matters. "People were really interested to learn more about cultural practices, about family relationships in diverse communities" (FDRP, FRC: Armstrong, 2010, p. 68).
  • In partnership with a local migrant information centre, one Melbourne FRC appointed a community development worker to engage recently arrived communities and investigate their dispute resolution processes and ultimately, to "trial different ways of doing dispute resolution with these different communities" (FDRP, FRC: Armstrong, 2010, p. 65). Interest in this project has been shown by local Somali and Sudanese communities. The challenges are significant, and FRCs can only achieve what they are capable of doing within existing funding structures and existing legal frameworks.
  • The Family Court of Australia worked with a range of mainstream agencies to consult with recently arrived communities around Australia about what they wanted to know about family law, and how best to develop implement this education. This resulted in a range of strategies with Horn of Africa communities. It included playback theatre and providing training about family law systems and processes to "cultural facilitators"—respected community members who lived in and worked with their communities, who then educated their community about these issues (FCoA, 2008).

Fostering a culturally competent workforce and processes that facilitate effective participation in FDR by CALD clients

Some CALD communities indicated they would be prepared to use family mediation if they had confidence in the cultural sensitivity of the services and mediators. Organisations that recruit, retain and develop a culturally competent workforce successfully engage CALD families (Butt, 2006). Culturally competent family service professionals are aware of the influence of their own cultural contexts and "are aware of differences without making people feel different" (Sawrikar & Katz, 2008, p. 13). While training in cross-cultural competence is usually recommended, and is necessary, it is not sufficient. Cultural competence develops over time and is a product of "knowledge, orientation, self awareness, critical self-reflection, humility, experience, sensitivity and skill" (Armstrong, 2010, p. 98).

Cultural competence training which focuses on awareness of the concept of culture as it relates to the self and others is preferred (Sims et al., 2008; Butt, 2006; EDAC, 2005; BRYC, 2002). A professional's awareness of their own cultural norms and the cultural norms of their professional practice is considered the "most important component in the knowledge base of culturally competent practice." (O'Hagan, 2001, p.235; see also Bhui, Warfa, Edonya, McKenzie, & Bhugra, 2007; Tervalon & Murray-Garcia, 1998). The cultural competence dialogue method which facilitates understanding of cultural values and conflicts, emphasises communication and reflection on cultural expectations rather than didactic knowledge, would be particularly suited to family dispute resolution professionals (BRYCS, 2002; Sims et al., 2008).

Practitioner awareness of their personal and professional cultural norms, and a capacity to critically reflect on these in a sustained and structured way, is vital to appropriately responding to the cultural contexts relevant to FDR (Armstrong, 2010; Barrett, 2008). Some commentators have suggested that a model of cultural reflexivity captures this goal (Armstrong, 2010; Bagshaw, 2006; Frederico et al., 1998). Reflexivity extends the concept of reflective practice and requires "thoughtful self-aware analysis" and "critical self-reflection of the ways the [professional's] social background, assumptions, positioning and behaviour" (Finlay & Gough, 2003 p. ix) influence their professional practice (Schon, 1991). Most FDR providers will already have in place processes for regular debriefing, supervision and professional development, and critical reflection about the cultural dynamics of FDR practice could be developed in this context (Armstrong, 2010; Polak 2009).

Successful programs with CALD families also hire bilingual or bicultural staff. This policy sends positive messages that the organisation values cultural diversity—although there may be practical limitations to this if the pool of qualified bicultural staff is limited (Butt, 2006; Sims et al., 2008). Employing staff from the same cultural background as target groups can legitimise a service, and assure community members that the service "will understand my background and issues, where I'm coming from" (O'Brien & Rich, 2002, p.33).

It should not be assumed, however, that hiring bicultural workers will ensure culturally competent staff or that these staff will have the main responsibility for dealing with CALD clients. Bicultural staff bring valuable insights about a service user's values and practices and about the effective delivery of support, but they are not cultural experts (Butt, 2006). While their contribution is often undervalued (Butt, 2006; FCoA National Cultural Diversity Committee, 2002), there are risks if "bicultural workers buy into their cultural belief system, and haven't explored and dissected that for themselves" (Manager, children's service: Armstrong, 2010, p. 69). While some clients might "prefer to find someone from the same culture, [because] that's easy to build rapport and trust" (Family support worker, multicultural service: Armstrong, 2010, p. 69), it should not be assumed that this preference will be universal, especially where there are concerns about confidentiality (Armstrong, 2010; Butt, 2006; Chand & Thoburn, 2005). The general view is that the cultural background of the staff is less important because "if you're good, you get good results and families are happy with you, then they will come" (Family support worker, multicultural service: Armstrong, 2010, p. 69).

Employing bicultural staff is an important strategy for promoting the effective participation of CALD clients in FDR processes, but a range of other strategies have been suggested that may be adapted to facilitate CALD access to, and participation, in mainstream FDR processes. These include:

  • identifying a dedicated worker(s) to liaise with and advocate for parents from culturally diverse backgrounds (Armstrong, 2010; Page et al., 2007);
  • ensuring that front-line staff have the skill and capacity to sensitively explore the relevance of culture to FDR processes, particularly during intake and assessment (Armstrong, 2010; Butt, 2006; Page et al., 2007); and
  • developing protocols to access and include support personnel, cultural advisors and extended family, during different stages of FDR (Armstrong, 2010; KPMG, 2008).

Examples: Culturally competent workforce

  • Some FRCs have partnered with agencies such as migrant resource centres and, among other strategies, are training centre workers to be bilingual and bicultural mediators (Flahavin, 2008). One training agency offers scholarships for people of CALD and Indigenous backgrounds, to address the lack of numbers of family dispute resolution practitioners from an Aboriginal and Torres Strait Islander or CALD background and enable successful applicants to complete their Vocational Graduate Diploma of Family Dispute Resolution (Institute of Family Practice, 2009).
  • The prominent role that extended families play post separation in all families has led one FRC to begin an action research project to develop an "extended family model of FDR". An FRC manager noted that this was still in progress, and was constrained by "the costs of it and the labour intensive" nature of such an initiative. She explained that this initiative was still exploratory and that "we really only want extended family when it's a benefit to the outcomes for the child". For example, it might involve "a series of different … interviews with people. So mum and dad in FDR and then go off and interview other people" (Armstrong, 2010, p. 94).

2 The Family Relationship Services Program was incorporated into the Family Support Program in 2009, funded by FaHCSIA.

3 This figure refers to the proportion of all Centrelink clients born overseas, including those born in English speaking countries.

Conclusion

Conclusion

This paper has sought to address FDR service imperatives to offer accessible and sensitive service delivery to CALD families, as well as to respond to broader social justice and equity goals of providing inclusive and appropriate services to all Australians. Family dispute resolution has been shown to offer considerable benefits to separating families. However, families from culturally and linguistically diverse backgrounds tend to be under-represented as clients of mainstream family dispute resolution service providers. The reasons for this are complex, but have to do with lack of knowledge and (mis)understanding about family dispute resolution and FDR professionals, and reluctance to approach mainstream services for assistance with parenting disputes. This reluctance stems from a range of factors including: such disputes may be resolved in couples' communities of origin; cultural taboos about separation and concerns about discussing personal matters with mainstream services; or uncertainty about the cultural sensitivity and appropriateness of FDR.

While it may be difficult for FDR providers to address cultural barriers to CALD clients accessing their services, there are a number of things FRCs can do to enhance understanding of FDR and to foster reputations for sensitive service delivery. Their approach needs to be holistic, premised on reciprocity and be reflexive in its practice. The most important thing FDR providers can do to encourage a greater proportion of people from CALD backgrounds to approach and use their services is to develop meaningful relationships with culturally specific, multicultural and faith-based services assisting CALD families—with individuals in those services, and with leaders of CALD and faith communities. Such relationships will increase FRC service provider and practitioner understanding of communities, and foster trust that they provide a quality service. They would also provide FRCs with opportunities to work with these services and leaders to develop appropriate referral pathways and strategies to enhance community capacity to make informed choices about service support for their families at or after separation.

Family dispute resolution services and their personnel must also develop culturally competent and responsive services and be guided by clear goals, principles and service structures. Services that recognise and actively respect cultural diversity and identity and its significance at family separation—and implement strategies to ensure that their service is accessible, fair and responsive to each client and his or her cultural contexts—will develop a reputation for culturally competent service.

There is no magic solution to encourage a greater proportion of CALD clients to use mainstream FDR services. Family dispute resolution services wishing to attract a greater proportion of CALD clients need to acknowledge the complex socio-cultural and gender dynamics relevant to separations by CALD couples. They also need to recognise that there may be more barriers to using FDR services—which may be perceived as facilitating separation—than to using more generic services. However, the strategies described in this paper have been shown to be successful in other contexts and, if appropriately adapted to FDR, may engage more CALD clients in mainstream family dispute resolution.

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Authors and acknowledgements

Dr Susan Armstrong is a Senior Lecturer at the School of Law, University of Western Sydney. She is currently engaged in a three-year research project with two Family Relationship Centres in Parramatta and Bankstown to investigate culturally responsive family dispute resolution. Dr Armstrong has trained as a nationally accredited mediator.

Publication details

AFRC Briefing
No. 18
Published by the Australian Institute of Family Studies, November 2010
23 pp.
ISBN:
978-1-921414-50-3
ISSN:
1834-2434

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