Stephen Ralph (Aboriginal Consultant Psychologist), Assisted by Leisha Lister (Executive Advisor Family Court of Australia), peer reviewed by Chris Cuneen.

Indigenous Australians’ access to justice is a matter that has been widely researched and reported upon. There have been numerous reviews and investigations that have taken place in this regard and in 2010, the Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court (known at the time as the Chief Federal Magistrate of the Federal Magistrates Court), through the Family Law Courts Advisory Group established an Indigenous Working Group. This working group aimed to examine the needs of Indigenous people in the Family Law Courts and how best to meet these needs.


Stephen Ralph, an independent Aboriginal consultant, was engaged to undertake a small study of the views and experiences of Aboriginal and Torres Strait Islander families who had recently been involved in family law proceedings. Under the terms of reference, the study was to consider and make recommendations in relation to the following:

  1. The impact of the shift in the provision of services to Indigenous clients, previously provided by Indigenous Family Liaison Officers in the Family Court of Australia to Family Relationship Centres.
  2. How to meet the needs of Indigenous clients of both Courts within existing resources including recommendations as to how the courts can ensure proper information is provided to this client group, both internally and externally.


With a view to improving access to justice and service delivery to Aboriginal and Torres Strait Islander litigants, the study sought to examine the views and experiences of these families who had recently been involved in family law proceedings. The study involved questionnaires and interviews with Indigenous and non-Indigenous family law litigants and Family Law Practitioners and focus group discussions were conducted with Aboriginal and Torres Strait Islander service providers to examine the interface between Aboriginal families and the Family Law Courts.

Indigenous Australians & Family Law Litigation: Indigenous Perspectives on Access to Justice is the report of this study.

About the author
Stephen Ralph is a Forensic Psychologist who has extensive experience working in the field of family law and child protection. In private practice Stephen prepares expert reports in family law, child protection and criminal matters. Being Aboriginal and a Koori from the Sydney region Stephen has a strong interest in working with Aboriginal families and a commitment to promoting access to justice for Aboriginal people. Stephen has worked within the family law system for most of his professional career. He previously held the role of National Coordinator (Indigenous Programs) in the Family Court from 2002-2008. Stephen is a member of the Australian Indigenous Psychologists Association and a member of the Australian Institute of Judicial Administration’s Aboriginal justice Committee. He has lived in the Northern Territory since 1995.

Indigenous Australians & Family Law Litigation: Indigenous perspectives on access to justice

By Stephen Ralph

Aboriginal Consultant Psychologist

October 2011

Assisted by Leisha Lister

Executive Advisor

Family Court of Australia

Peer reviewed by Chris Cuneen

Acknowledgment

This research has been completed on behalf of the Family Court of Australia and the Federal Magistrates Court of Australia, with funding provided by the Commonwealth Attorney-General's Department. The author would like to acknowledge and thank all those involved in this undertaking, particularly to Leisha Lister, Executive Advisor, Family Court of Australia, whose support, patience and enthusiasm has been instrumental in the completion of this research.

The author would also like to thank Mr John De Maio from the Australian Institute of Family Studies, for his advice and assistance in the analysis of the data and the results.

The author would also like to acknowledge the many other individuals who have had input into this research, including all those who attended the focus groups meetings and contributed to the development of a better understanding of the needs and interests of Indigenous families. The author especially acknowledges, and pays respect to those Indigenous litigants (and others) whose hopes for a fairer, more accessible system of justice in the jurisdiction of family law rests on the findings, discussion and recommendations contained in this report.

About the author

Stephen Ralph is a forensic psychologist who has extensive experience working in the field of family law and child protection. In private practice Stephen prepares expert reports in family law, child protection and criminal matters. Being Aboriginal and a Koori from the Sydney region, Stephen has a strong interest in working with Aboriginal families and a commitment to promoting access to justice for Aboriginal people.

Stephen has worked within the family law system for most of his professional career. He previously held the role of National Coordinator (Indigenous Programs) in the Family Court from 2002-2008.

Stephen is a member of the Australian Indigenous Psychologists Association and a member of the Australian Institute of Judicial Administration's Aboriginal justice Committee. He has lived in the Northern Territory since 1995.

Introduction

Indigenous Australians' access to justice is a matter that has been widely researched and reported upon. There have been numerous reviews and investigations that have taken place that have consistently produced similar findings and recommendations. The most recent Senate report on access to justice published in 2009, for example, concluded that 'the legal system is not sufficiently providing members of the Australian community with access to justice'i and in its first recommendation proposed that the various tiers of government fund 'a comprehensive national survey of demand and unmet need for legal assistance services in Aboriginal and Torres Strait Islander communities.'ii

The Senate report acknowledged that Indigenous people's access to justice is compromised by a lack of properly funded Indigenous legal services and noted that Indigenous women and those people living in regional, rural and remote areas were particularly disadvantaged. The report also noted the barriers that culture and language posed for Indigenous people attempting to access the Australian legal system.

Similar conclusions are drawn in the Federal Civil Justice System Strategy Paper, published by the Commonwealth Attorney-General's Department in December 2003 in which it states ~

'Many Indigenous Australians face both cultural and language barriers in dealing with the federal civil justice system, as well as difficulties accessing services where they live in regional, rural or remote parts of Australia.' iii

In relation to family law, the 2001 report of the Family Law Pathways Advisory Group, Out of the Maze, provided a comprehensive overview of the family law system and the legal needs of Australians, with a specific reference to Indigenous disadvantage. The report concludes ~

'The current family law system presents particular problems for Aboriginal and Torres Strait Islander people. These problems, which are not experienced by the wider community, affect the ability of indigenous peoples to access and benefit from the family law system.' iv

In noting the barriers to Indigenous people accessing justice in the family law system, the Pathways report states ~

'Indigenous peoples face historical issues such as the effect of policies of previous governments that still adversely affect communities and individuals. It is therefore not surprising that Indigenous Australians have not felt sufficiently confident to utilise the services offered by courts and other service providers that deal with the residence of and contact with children, as well as other family law matters.' v

A more recent state-based report by Cuneen and Schwartz (2009) also examined the legal needs of Indigenous people in relation to civil and family law in NSW. The study is described by the authors as 'the first state-wide indigenous-specific assessment of civil/family law needs'. The authors assert that a sound understanding of the civil and family law needs of Indigenous people is essential in ensuring access to justice. Using surveys and focus group data they state ~

'One of the most pressing issues to emerge from the research is the general lack of community knowledge about civil and family law.' vi

Cuneen and Schwartz (2009) note that the unmet legal needs in relation to family law often lead to the involvement of the criminal justice system as a result of family violence arising from the frustration involved and the lack of appropriate services for Indigenous families. The prevalence of family violence in Indigenous communities has been well documented and has led to national campaigns to reduce the incidence of family violence in Indigenous communities.

In considering the engagement of Indigenous families in the family law system, there is a considerable body of work that deals with family dispute resolution services and how these services may best work to assist Indigenous people to resolve disputes without the involvement of the court system. The work of the National Alternative Dispute Resolution Advisory Committee (NADRAC) is particularly relevant in this area. Considerable effort has been made to promote the development of viable systems of family dispute resolution that are accessible to Indigenous people. The principle of early intervention has been a driving force in this area. When family dispute resolution does not succeed, or is inappropriate due to family violence concerns, then recourse to litigation looms larger as an option for many families.

In responding to the needs of Indigenous Australians who, for whatever reason, are unable to resolve their disputes, amendments were made to the Family Law Act in 1996 that required the Court, in determining the best interest of an Indigenous child, to consider, amongst other things, 'any need' for the child 'to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders'. Further refinement of these provisions was introduced in the 2006 amendments to the Family Law Act.

Section 60B(2)(e) of the Act states that all children have 'a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).' Section 60B(3) provides greater specificity, namely the right of Aboriginal children:

  1. to maintain a connection with that culture, and
  2. to have the support, opportunity and encouragement necessary:
    1. to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views, and
    2. to develop a positive appreciation of that culture.

The amendment provides more specific direction to the Court and introduces more useful criteria in such phrases as 'explore the full extent' and 'positive appreciation'. The 2006 reforms also require under s61F that the Court 'must have regard to any kinship obligations, and child rearing practices, of the child's Aboriginal or Torres Strait Islander culture.'

From an Indigenous perspective, these changes to the Family Law Act represent over due recognition of the unique position of Aboriginal families in Australian society and are a step forward in ensuring that Indigenous culture is justly acknowledged and considered in family law proceedings. However, these changes will have little impact in promoting access to justice for Indigenous families if the family law courts do not provide Indigenous families with the opportunity to effectively access court services and participate in court proceedings.

The issue of Indigenous people's access to justice in the Family Court of Australia was first raised by the former Chief Justice, Alastair Nicholson, who in 1995 stated ~

'Historically, indigenous people have had little contact with the Court and have been reluctant to seek out Court's services, even in circumstances where their traditional methods of resolving disputes have failed. When contact has occurred it has usually been in the context of so-called mixed marriages and in such circumstances Aboriginal people often felt disadvantaged in dealing with a 'white institution.' viii

Under the guidance of the former Chief Justice, a number of initiatives were introduced into the Family Court that sought to promote the capacity of the Court to deal with cultural diversity, but particularly to meet the needs of Indigenous families. From 1993 the Family Court of Australia established an Aboriginal and Torres Strait Islander Awareness Committee that oversaw several significant initiatives designed to promote access to justice for Aboriginal and Torres Strait Islander people. These included the introduction of Aboriginal cross-cultural awareness training for judges and court staff; the appointment of Indigenous Family Liaison Officers in the Northern Territory and Queensland, and procedures for the recognition of traditional Torres Strait Islander customary adoption (Kupai Omasker).

However, due to changes in government policy, the Court's capacity to address the needs of Indigenous families declined, along with the resources available to the Court. A key factor in this was the Commonwealth Government's decision that the Court's role in early intervention and voluntary dispute resolution should be undertaken by community-based agencies. Responsibility for early intervention and engagement with Aboriginal families thereafter became the province of Family Relationship Centres who in many instances employed Indigenous Advisors to assist in liaison with Indigenous families and to assist in shaping agency policy and practice in this area.

As a result of these initiatives there have been significant changes to the way in which the Family Law Courts respond to the needs of Indigenous families involved in litigation. For example, the Court no longer has court-based Indigenous staff to provide support to families and/or the Court in working with Indigenous families, but occasionally purchases consultant services from external providers as required. Little is known of the effect of this (and other significant changes) upon Indigenous people's access to the Family Law Courts and the capacity of the courts to respond to the needs of Indigenous families who are involved in litigation.

The primary source of data relating to Indigenous people and family law litigation is contained in the Family Law Court 's data management system, Casetrack. This database allows individual litigants to be identified as Aboriginal and/or Torres Strait Islander on the basis of the individual self identifying as Indigenous at the time of filing an Initiating Application (in either the Federal Magistrates Court or the Family Court of Australia) or a Response (in the Family Court only). It is noted in the forms that the individual completing the form is 'not required to answer this question' but notes that doing so will 'greatly assist the court' in planning and delivering client services.

The reliable capture of this data is subject to a number of factors. In many instances, for example, forms are completed by people other than the individual Indigenous litigant and the completion of the Indigenous field may be overlooked. In many instances forms are completed by legal practitioners (or paralegals) who may not be aware of the client's Indigenous status, or who may simply choose to leave the field blank. It is also the case that the party completing an Initiating Application (often a non-Indigenous person) may choose not to identify the respondent as Indigenous when completing the form. In addition to this, court staff do not routinely query Indigenous status when accepting forms for filing. Hence, there are significant gaps associated with the reliable capture of data pertaining to Indigenous status that may lead to an under-representation of the number of Indigenous litigants in the courts' Casetrack system.

Casetrack statistics however are the best figures available to indicate the extent to which Indigenous people are involved in family law litigation. Table 1 is taken from Casetrack statistics and shows the number of Indigenous and non-Indigenous applications for final orders filed in the Family Court of Australia over the last seven financial years. In these Indigenous matters, one or both of the parties are identified as Indigenous.

TABLE 1: Applications for Final Orders in the Family Court of Australia (FCoA) where one/or both parties are Indigenous - number and percentage of total applications

Applications for Final Orders in the Family Court of Australia
  2004-05 2005-06 2006-07 2007-08 2008-09 2009-10 2010-11*
Non-Indigenous 12,192 10,926 7685 4424 3800 3649 2901
Indigenous 207 255 146 52 38 55 28
Total % Indigenous 1.7 2.3 1.9 1.2 1.0 1.5 1.0

*Note: Statistics for 2010-11 do not include June 2011. For a short period statistics on Indigenous status were also not kept.

TABLE 2: Applications for Final Orders in the Federal Magistrates Court (FMC) where one/or both parties are Indigenous - number and percentage of total applications

Applications for Final Orders in the Federal Magistrates Court
  2004-05 2005-06 2006-07 2007-08 2008-09 2009-10 2010-11*
Non-Indigenous 11,645 12,222 15,588 14,783 15,391 16,483 15,772
Indigenous 152 223 260 178 215 369 263
Total % Indigenous 1.3 1.8 1.6 1.2 1.4 2.2 1.6

*Note: Statistics for 2010-11 do not include June 2011. For a short period statistics on Indigenous status were also not kept.

TABLE 3: Applications for Final Orders in both FCoA and FMC where one/or both parties are Indigenous - number and percentage of total applications

Applications for Final Orders in FCoA and FMC
  2004-05 2005-06 2006-07 2007-08 2008-09 2009-10 2010-11*
Non-Indigenous 23,837 23,148 23,273 19,207 19,191 20,132 18,673
Indigenous 359 478 406 230 253 424 291
Total % Indigenous 1.5 2.1 1.7 1.2 1.3 2.1 1.6

*Note: Statistics for 2010-11 do not include June 2011. For a short period statistics on Indigenous status were also not kept.

In interpreting these numbers, it is important to bear in mind that Australia's Indigenous population comprises 2.5 per cent of the general Australian population. Hence, it appears that the percentage of Indigenous people engaging in family law litigation is substantially below what might be expected according to population statistics, even allowing for the problems associated with data collection. The extent of this disparity can be observed in the fact that to achieve parity with the general population in 2010-11, a further 190 applications for final orders involving Indigenous litigants would need to have been filed with the courts during that period.

It has also been suggested that achieving parity with the general population may not of itself be a true indicator of an adequate level of access to justice. In light of the well documented level of social and economic disadvantage experienced by Indigenous families, it would not be surprising to find this group over-represented in family court statistics if access to justice was not an issue. For example, the presence of high rates of family violence, high rates of involvement with statutory child welfare authorities, including high rates of children living in out of home care, are factors that suggest Indigenous families may have a greater need for assistance in dealing with family law matters, including recourse to litigation in the courts if need be. Some support for this view is provided by the Court's recent Litigant Satisfaction Survey conducted by an independent consultant. The survey of 1300 people attending Family Law Court registries found that three per cent of those interviewed (40 participants) were Indigenous. Such results highlight the need for further investigation into the actual usage of the courts by Indigenous Australians and the possible existence of unmet legal needs.

In considering Indigenous peoples access to the family courts, a commonly stated view is that Indigenous people have 'their own way of sorting it out' and that the assistance of others from outside of the family and community, particularly a court, is not wanted nor required. This statement is often put forward as an explanation for the perceived unwillingness of Indigenous people to engage in family law litigation. Although there is perhaps some element of truth in this statement, it is a view that fails to acknowledge that traditional means of dispute resolution may not be available to the parties, nor be equipped to deal with the complexity of matters that do not fit within the parameters of what might be dealt with by traditional means. The breakdown of traditional authority structures, the greater mobility of Indigenous people, marriage outside of one's traditional community and cultural group, along with the influence of alcohol and drugs, are some of the factors that work against the application of traditional methods of dispute resolution. While the use of traditional dispute resolution methods is to be encouraged and supported, it must be acknowledged that there are circumstances when recourse to these methods is not available, not appropriate, or simply ineffective. In such circumstances it is possible that an unresolved family dispute, particularly one involving children, may increase the potential for family violence and feuding and may in time lead to the intervention of police and child welfare authorities.

In considering these issues it is useful to examine the extent to which Indigenous people actually initiate proceedings in the Courts. As observed by the former Chief Justice Alastair Nicholson, the most common litigation involving Indigenous people has 'usually been in the context of so-called mixed marriages' - typically involving a non-Indigenous applicant and an Indigenous respondent - thereby causing Aboriginal people to feel 'disadvantaged in dealing with a 'white institution'.vii

TABLE 4: Applications for Final Orders in combined FCoA and FMC involving an Indigenous applicant and/or respondent

Applications for Final Orders in FCoA and FMC involving an Indigenous applicant and/or respondent
  2004-05 2005-06 2006-07 2007-08 2008-09 2009-10 2010-11*
Indigenous applicant 187 247 202 118 99 170 115
% 52 51 50 51 39 40 40
Indigenous respondent 108 132 134 73 101 155 100
% 30 28 33 32 40 37 34
Both Indigenous 64 99 70 39 53 99 76
% 18 21 17 17 21 23 26

*Note: Statistics for 2010-11 do not include June 2011. For a short period statistics on Indigenous status were also not kept.

In considering these figures caution needs to be exercised due to the relatively small numbers involved. There appears however to have been a noticeable change in filing patterns in 2008-09 with an apparent decline in the percentage of final order applications initiated by Indigenous litigants. This change comes after a period of relative stability in filing patterns during the preceding four financial years. The above statistics are also shown graphically on the following page in Figure 1.

FIGURE 1: Percentage of Final Order applications in FCoA and FMC involving an Indigenous applicant and/or respondent

As shown in Figure 1, there is a pronounced decline in the number of Indigenous applicants seeking final orders in 2008-09. At the same time there has been an increase in Indigenous people as respondents and a steady increase in the number of matters in which both parties are Indigenous. The reason for changes in filing trends are often complex, and it is difficult to confidently identify specific factors that might underlie such a change. It is notable though that this period marks the cessation of the courts’ Indigenous Family Liaison Officer program and an end to the courts’ involvement in voluntary mediation. The period is also associated with the introduction of Family Relationship Centres across the country and the expansion of Aboriginal Family Violence Prevention Legal Services. Notably it is a period that marks a change in emphasis with family dispute resolution services being provided by the community sector, with the courts focusing more on the determination of family disputes.

While an analysis of filing trends may be of some assistance in examining Indigenous people’s usage of the Family Law Courts, a thorough understanding of the issues involved is far more likely to come from direct engagement with Indigenous litigants to ascertain their views and experiences about family law litigation. So far the most significant attempts that have been undertaken have been that of the Family Law Pathways Advisory Group (2001). In preparing their final report, the group consulted widely with Indigenous people and agencies and the research of Cuneen and Schwatz (2009) who have looked at the civil and family law needs of Indigenous people in NSW. To date, there has been no systematic attempt to examine the views and experiences of Indigenous people who have been directly involved in litigation in the Family Law Courts.

Scope

The research described herein examines the experiences and views of Indigenous Australians who have recently been involved in family law litigation. The study seeks to compare the experiences and views of this group to that of a representative sample of non-Indigenous Australians. The central focus of the study is to test the hypotheses that the experience of Indigenous litigants is qualitatively different to that of non-Indigenous litigants with respect to the process and outcomes of family law litigation.

Methodology

The views of Indigenous and non-Indigenous litigants were collected through survey methods that included the completion of questionnaires and telephone interviews. The views of family law practitioners who had represented Indigenous litigants was also sought through the use of a questionnaire. A series of six focus groups were held in selected capital cities and regional areas involving stakeholders that included representative from Aboriginal and Torres Strait Islander Legal Services and Indigenous Family Violence Prevention Legal Services. Those attending the focus groups also consisted of representatives from other Indigenous community-controlled agencies as well as some Family Law Courts staff.

Sampling Method

Indigenous group

A search of the courts’ Casetrack system was undertaken to identify cases where there had been an application for final orders in which at least one of the litigating parties was identified as Aboriginal and/or Torres Strait Islander. Further criteria for this search were that these cases had to have been finalised between July 2007 and December 2009. The search identified almost 700 cases from which the contact details of Indigenous litigants were extracted. After removing all those litigants who did not have a residential address (other than their solicitor) a mailing list of 217 Indigenous clients was created.

Questionnaires were sent to all 217 on this mailing list. In addition, litigants with telephone contact details (other than their solicitor) were also contacted to gauge their willingness to participate in the research. Of the 217 litigants in the mailing list telephone, contact details were available for 122 litigants. The response rate for the return of questionnaires was three per cent - that is, a total of seven questionnaires returned from the 217 that had been posted.

Of the 122 litigants with telephone contact details it was found that over 60 per cent were no longer contactable on the number they had previously provided. Direct contact was made with 45 Indigenous litigants and 42 expressed a willingness to participate in the research. More than half of these litigants were no longer living at the previous residential address shown in Casetrack. Questionnaires were again sent to these individuals. The response rate for the return of these questionnaires was 30 per cent as 14 questionnaires were completed and returned. The remaining 28 litigants indicated that they were still interested in participating in the research but had not completed the questionnaire even though they acknowledged the importance of the research. All of these litigants were reluctant to participate in a telephone interview stating that they did not have the time, or suggesting the researcher phone back at a more convenient time. Overall, the remaining 28 clients were avoidant and over the course of time were no longer available, or had misplaced the questionnaire, or simply made unfulfilled commitments to complete the questionnaire. The 217 clients on the original mailing list, 21 former litigants eventually completed the questionnaires.

An overall return rate of 10 per cent for the questionnaires would seem to be a reasonable outcome in these circumstances. However, such an observation belies the significant effort invested in encouraging individuals to complete and return the questionnaires. In many instances there were at least four phone contacts with individual litigants to check that questionnaires had been received and to follow-up in dealing with any questions, or to prompt for the return of the questionnaire.

In order to increase the number of Indigenous participants in the study, a new approach was employed. This consisted of asking court-based family consultants to nominate Indigenous cases that they had been involved in, that had been recently finalised. As a result of this, a further 68 former Indigenous litigants were identified who had mailing addresses (other than solicitors) and in some instances telephone contact details. A further mail out of questionnaires to these 68 litigants was arranged, and of this group, 28 were able to be contacted by telephone. As a result this process of engagement another 14 questionnaires were received - bringing the total sample size for the Indigenous group to 35 participants.

The task of engaging Indigenous litigants to participate in this study was particularly onerous and time consuming. It seems likely that the commonly noted instability of post-separation living arrangements is more acute amongst the Indigenous population than the general population. Although it is not possible to make a direct comparison with the general population in this study, it is notable that the majority of Indigenous litigants who were contacted by telephone were no longer living at their previously nominated residential address and that many other former litigants were no longer contactable on the telephone number they had previously provided.

The response rate for questionnaires mailed to Indigenous litigants (excluding those who were also contacted by telephone) was less than three per cent in this study. This is an extremely low return rate when it is noted that User Satisfaction Surveys usually have a response rate between 10-30 per cent depending upon the litigant group, the length of the survey and whether incentives were offered. The very low response rate is likely to be caused by litigants no longer residing at the nominated address along with sensitivity about the personal nature of the questions asked, privacy issues, and the complexity of the survey. In relation to Indigenous people in particular Coffin (2002) identified 'research fatigue’ as a factor working against the engagement of Indigenous people in research. Many writers have noted that Indigenous people are one of the most overly-researched groups in society and that resistance to participation in research is sometimes based on suspicion about the imposition of external agendas.

Due to the low level of initial engagement of Indigenous participants in the study, a monetary incentive was offered in an effort to increase participation and response rates. 80 potential participants were offered a payment of $40.00 payable on receipt of their completed questionnaire. Of this number only 20 Indigenous participants received payment for their participation in this research - that is, slightly over half the number of participants in the Indigenous sample. Although it is acknowledged that the offering of incentives may introduce an element of sampling bias into the design of the study, in the circumstances it would not have been possible to proceed with this research without offering incentives to increase Indigenous participation. As it is the sample size is still relatively modest. The issue of sampling bias needs to be thoroughly considered when interpreting the results of this research.

Non-Indigenous group

Casetrack was used to generate a random selection of non-Indigenous cases that involved applications for final orders that had been finalised between July 2007 and December 2009. Contact details for former litigants were extracted from this selection and in total 800 questionnaires were sent out to non-Indigenous litigants. In response a total of 54 completed questionnaires were returned - a response rate of just under seven per cent.

In contrast to the Indigenous group, no direct contact was initiated with these participants though many chose to discuss their cases with the writer prior to returning their questionnaires. The response rate is still relatively poor for such surveys, but is still more than twice the rate of responding for Indigenous clients. The overall response rate is also likely to be somewhat lower than it might otherwise have been due to a typing error that occurred in the cover letter accompanying the first 400 questionnaires that were sent. It was stated in this cover letter that responses would not be treated as confidential. Once this error was corrected the response rate for the second 400 questionnaires increased from three per cent (for the first mail out) to slightly over 10 per cent (for the second mail out).

Family law practitioner group

A search of Casetrack was undertaken to identify family law practitioners and legal services that had represented Indigenous clients in applications for final orders during the defined period. Not surprisingly, this process identified Aboriginal Legal Aid Services and Aboriginal Family Violence Prevention Legal Services as the agencies most involved in working with Indigenous litigants. Questionnaires were sent to these agencies with the request that staff be encouraged to complete and return the questionnaire or that the questionnaire be forwarded to other known practitioners who had recently represented Indigenous litigants. Copies of the questionnaire were also forwarded electronically to other agencies including state and territory legal services and associations representing family law practitioners at a local level.

It is not possible to identify a response rate for these questionnaires due to the uncertainty about how many were actually circulated to practitioners either in hard or electronic form. As a result of this, 30 completed questionnaires were received from practitioners who had experience in litigation involving Indigenous clients.

Data Gathering

Three main sources of data gathering were used in the present study: survey methods using structured questionnaires that were devised specifically for this study; semi-structured interviews with Indigenous litigants; and input from focus group participants that consisted of open discussion with representatives of government and non-government agencies, Aboriginal community controlled agencies and private legal practitioners.

Questionnaires

A set of questionnaires was devised to cover a broad range of issues relevant to the question of Indigenous people’s access to justice. The Indigenous questionnaire covers matters such as dispute resolution prior to the commencement of litigation, agreement making in the courts, the determination of cases by the courts, as well as the litigants’ views about expert reports and the courts’ deliberation upon Indigenous cultural issues. A copy of the Indigenous questionnaire is at Appendix 4.

The Indigenous questionnaire was initially trialled on a small group of Indigenous people to gauge the degree of difficulty involved in completing the questionnaire and the time required to complete the questionnaire. As a result, some amendments were made to simplify the wording and to reduce the number of questions in the document. Subject to the individual’s level of literacy the questionnaire took between 20-30 minutes to complete. In most instances Indigenous litigants completed the questionnaire individually and follow-up interviews were conducted to ensure that as far as possible the questionnaire was accurate and complete.

After finalising the structure and content of the Indigenous questionnaire, it was then modified for use with non-Indigenous litigants and family law practitioners. For non-Indigenous litigants the same questions were mostly used but the section on Indigenous cultural issues was omitted along with one culture-related question pertaining to the preparation of family reports.

A similar process was used in the development of the family law practitioner questionnaire. As far as possible questions contained in the Indigenous litigant questionnaire were adapted for use with practitioners.

Interviews

Semi-structured interviews were completed with most of the Indigenous participants in the form of follow-up interviews after questionnaires had been completed and returned. The interviews were not recorded or rated but focused upon open discussion with Indigenous participants about their experiences of having attended at court for hearings and /or conferences and the personal impact of this upon them and their family.

Many of the non-Indigenous participants also participated in interviews around their experiences of family law litigation as well. In every instance the contact was initiated by the non-Indigenous participant seemingly out of a need to de-brief and/or to vent the frustration and anger they continued to carry as a result of their involvement in family law litigation.

Contact was also made by litigants who had ongoing proceedings in the family courts. This group of litigants - both Indigenous and non-Indigenous - had either been indirectly informed of the research by others or were past litigants returning for a further round of litigation. In many of these instances callers were seeking information about court processes or were intent on venting their negativity concerning the family law system.

In most instances interviews with participants averaged about 20 minutes. Of the Indigenous group, eight participants were not interviewed as telephone contact was unable to be made after the questionnaires had been returned.

Focus groups

Six focus groups were held in some capital cities and regional centres - Townsville, Cairns, Brisbane, Adelaide, Melbourne and Parramatta. Those participating in these groups were mostly drawn from Aboriginal Legal Aid Service, Aboriginal Family Violence Prevention Legal Service, Aboriginal-controlled community-based agencies, legal aid services, Family Relationship Service providers, as well as family law practitioners and some court staff.

Attendance at these focus groups was variable with the largest group being Adelaide (n=22) and the smallest 'group’ being Townsville (n=1). Participants were informed of the purpose of the research and provided with an overview of Indigenous families and their participation in the family law system. This included discussion of issues relevant to access to justice and service provision. Participants were also provided with information about past and current court-based services for Indigenous litigants. Discussion and feedback from group members was encouraged. Discussion generally revolved around barriers confronting Indigenous families in accessing justice, the delivery of culturally appropriate services to Indigenous people, and changes to the current system that might facilitate better access to justice and improved outcomes for Indigenous families.

Discussion within the focus group was not recorded but notes were taken and comments made by participants duly noted. In general the focus groups provided an opportunity for consultation with stakeholders and an opportunity to hear a range of perspectives upon the functioning of the current family court system and what changes could be made to improve access to justice for Indigenous families.

Collation and Analysis of Data

Data obtained from questionnaires completed by the Indigenous, non-Indigenous and practitioner groups was coded and entered into Excel spreadsheets. The analysis of this data was undertaken jointly with the assistance of research staff from the Australian Institute of Family Studies.

The relatively small sample sizes involved in this study did not allow for the application of inferential statistics and hypotheses testing. The calculation of confidence intervals with such small sample sizes would have led to a heightened risk of Type I and Type II errors occurring in the analysis and interpretation of the data. This in turn would have raised significant issues regarding the reliability of any findings based on the use inferential statistics.

Hence, the data analysis is based on descriptive statistics that consist of a comparison of the groups on frequency of response, and the calculation of means and percentiles.

It should also be acknowledged that the sampling methods used in the current study to collect data are open to producing a significant level of sampling bias. As is often the case when participants are invited to respond to client satisfaction surveys, there is a strong tendency for those who have a complaint to be at the forefront of respondents, while those who are relatively satisfied do not tend to respond to such surveys. This is likely to be the case in the current sample, particularly with reference to the non-Indigenous group. The participants in this group were, for example, solicited 'cold’ without any of the encouragement and support that was provided to the Indigenous group in assisting them to complete and return the questionnaire. That is, the results are more likely to be skewed towards the reporting of negative experiences and views in both groups, but particularly the non-Indigenous group, than what might otherwise be the case in the general population of family law litigants.

Results

The results obtained in this study are reported under seven headings - description of the sample, pre-filing action, going to court, judicial determination, Indigenous cultural issues, family reports and practitioner perspectives.

1. Description of the sample

A comparison of the demographic characteristics of two groups is shown in Table 5.

TABLE 5: Demographic Characteristics of the Indigenous and Non-Indigenous Groups

  Indigenous group (n=36) Non-Indigenous group (n=54)
Gender (%) Male 46%
Female 54%
Male 43%
Female 57%
Median age (years) 38 years 46 years
Socio-economic status (Percentile)1 44 73
Mean number of subject children 1.7 1.9
Mean age of subject children 8 years 9 years
Children live with Self 38%
Partner 31%
Other* 31%
Self 39%
Partner 39%
Other* 22%

*Other indicates that the children were living with other family members, or siblings were split between parents, or were living in shared arrangements. It was not possible to determine from the data the frequency of shared care.

1 Socio-economic status was assessed using the ABS Socio-Economic Indicators for Areas (SEIFA) Index, in particular, the SEIFA Index of Relative Socio-Economic Advantage and Disadvantage. This index provides a rating of relative socio-economic status according to the location in which the individual lives taking into account 2006 Census statistics relating to such factors as income and level of education. See Australian Bureau of Statistics - Seifa entry page.

It is notable that there was a higher proportion of female respondents in both groups - a result that is consistent with what is generally known about survey response rates and gender (Moore and Tarnai, 2002). The median age of the Indigenous group was substantially younger than that of the non-Indigenous group. As a result, the children who were the subject of the dispute tended to be younger and fewer in number when compared to the non-Indigenous groups. Current parenting arrangements were relatively similar for both groups with almost 40 per cent in each group reporting that the subject children lived with them. A higher proportion of the non-Indigenous sample reported that the children lived with the other parent.

In comparing the two groups there also appears to be a significant difference in socio-economic status as calculated using the Australian Bureau of Statistics (ABS) Socio-Economic Indicators for Areas (SEIFA) Index. On the SEIFA Index of Relative Socio-Economic Advantage and Disadvantage participants were ranked according to the location in which they lived. The Index draws on data taken from the ABS 2006 such as employment, income and educational level, which is then used to rank suburbs according to the relative level of disadvantage and advantage. The use of the SEIFA Index indicated that the Indigenous participants were likely to be ranked lower on socio-economic status than the non-Indigenous group who on the 73rd percentile rated highly in terms of socio-economic status.

The litigation profile of the Indigenous and non-Indigenous groups are shown below in Table 6.

TABLE 6: Litigation profile of the Indigenous and Non-Indigenous Groups

  Indigenous Non-Indigenous
Applicant / Respondent Applicant 31%
Respondent 17%
Other* 51%
Applicant 44%
Respondent 33%
Other* 23%
Self-represented Yes 29%
No 54%
In part 17%
Yes 20% 
No 36%
In part 44%
Stage in litigation pathways Consent order < trial 21%
Consent order during trial 3%
Family report / Final Hearing 76%
Consent order < trial 6%
Consent order during trial 9%
Family report / Final Hearing 86%
Independent Children’s Lawyer (ICL) Yes = 36% Yes = 62%
Family report completed Yes = 21 (60%) Yes = 36 (67%)

*Other was recorded if the participant was not sure of their status, or had left the field blank.

The litigation profile of the groups appears substantially different. The non-Indigenous group was less likely to have reached agreement during the proceedings and was more likely to have gone on to a contested final hearing. There appears also to be a higher degree of complexity involved in the non-Indigenous matters. For example, in looking at the appointment of Independent Children’s Lawyers (ICLs) in each sample the non-Indigenous group had almost twice the proportion of ICL appointments (62 per cent) when compared to the Indigenous group (36 per cent). They also tended to have a slightly higher proportion of family reports completed than the Indigenous group. The higher level of ICL appointments and family reports in the non-Indigenous group, along with the tendency for more of these matters to proceed to final hearing, suggests that the non-Indigenous group was more likely to be dealing with more complex issues than was the case for the Indigenous group. It may also suggest a more litigious attitude on behalf of the non-Indigenous participants and a greater willingness to pursue a decision through the courts.

It is also notable that the non-Indigenous group was more likely to have represented themselves in court for all or part of the proceedings. Of the non-Indigenous group 64 per cent of participants reported that they had represented themselves in court for all or part of the proceedings. In the Indigenous group the proportion was only 46 per cent with the majority stating that at no time were they self-represented. Such a result also supports the view that the non-Indigenous group was more litigious and more determined to pursue their matters through the courts. Such a result may also be influenced by the availability of legal aid to the Indigenous group through Indigenous Legal Services which would lessen the likelihood of these participants attending court unrepresented. The noted difference in socio-economic status between the groups provides additional support for the view that the Indigenous group was more likely to be legally aided.

There was a higher proportion of applicants than respondents in both groups though in general the status of many of the participants was difficult to clearly determine. Those in the Indigenous group, for example, were more likely to be unsure of whether they had been the applicant or the respondent in proceedings, and in many questionnaires the field was left blank. Follow up interviews suggested that the participants were unsure of their status due to matters having been re-litigated or contravention orders being filed during or after the proceedings.

2. Pre-filing action

Participants were asked about what attempts had been made to resolve their dispute prior to the commencement of proceedings. Table 7 below compares the views and experiences of both groups in relation to the extent to which they participated in family dispute resolution and the level of satisfaction with pre-filing dispute resolution processes.

TABLE 7: Comparison of Indigenous and non-Indigenous perspectives on pre-filing dispute resolution processes

  Indigenous Non-Indigenous
What attempt was made to resolve the dispute prior to court? Family Relationship Centre 31%
Legal Aid Conference 34%
Lawyer negotiations 34%
No attempt 14%
Family Relationship Centre 50%
Legal Aid Conference 20%
Lawyer negotiations 44%
No attempt 22%
How satisfied were you with the services that you used? Very Satisfied 22%
Satisfied 19%
Neither 13%
Dissatisfied 16%
Very dissatisfied 31%
Very Satisfied 0%
Satisfied 18%
Neither 23%
Dissatisfied 18%
Very dissatisfied 41%
Why was it not possible to reach agreement prior to going to court? Non-attendance by other party 60%
Domestic violence issues 23%
Child protection issues 9%
Mental health issues 9%
Entrenched communication Issues 23%
Non-attendance by other party 31%
Domestic violence issues 23%
Child protection issues 26%
Mental health issues 26%
Entrenched communication Issues 77%

The results indicate that Indigenous subjects were less likely to have attended a Family Relationship Centre than non-Indigenous subjects and they were more likely to have attended a Legal Aid Conference as their primary attempt to resolve the dispute prior to going to court. The non-Indigenous group was far more dissatisfied with dispute resolution processes than the Indigenous group with a majority of the non-Indigenous group (59 per cent) expressing dissatisfaction with the services they had used. In contrast the Indigenous group was more evenly divided on the satisfaction scale with 41 per cent expressing satisfaction and 47 per cent expressing dissatisfaction. In the non-Indigenous group only 18 per cent expressed satisfaction while none of the group indicated they were 'very satisfied’ with the dispute resolution services they had used.

The reasons given for the failure of dispute resolution were also markedly different for the two groups. The Indigenous group cited non-attendance by the other party as the primary reason for failure to resolve the dispute prior to going to court. Sixty per cent of the group cited this as the reason why it was not possible to resolve the dispute. In contrast, a large majority of the non-Indigenous group (77 per cent) cited entrenched communication issues as the primary reason why the dispute could not be resolved. Child protection and mental health issues were also cited more commonly by the non-Indigenous group as factors that influenced dispute resolution outcomes.

These results tend to raise issues concerning the engagement of Indigenous litigants in dispute resolution processes, particularly given that it appears they are less likely to access services provided by Family Relationship Centres and that a primary reason for the failure to resolve disputes is cited as non-attendance by the other party at dispute resolution. On the available data domestic violence and possible exemption from attending dispute resolution does not appear to be a factor in this situation as there was no difference between the groups in the extent to which they described domestic violence as a factor influencing dispute resolution.

The results also raise some query as to the comparability of the two groups given the differing profiles that seem to exist. The non-Indigenous group was more polarised in their view of dispute resolution processes and was far more likely to cite entrenched communication issues, child protection and mental health as factors impacting upon dispute resolution. In considering the earlier data relating to the differing litigation profiles of the two groups, the data relating to dispute resolution adds to the perception of the non-Indigenous group as dealing with more complex issues and as possibly bearing a more generalised level of grievance.

3. Going to court

In making the decision to go to court, both groups cited family violence as a significant concern for them or the other party. This was cited as a factor in the decision to go to court by 61 per cent of the non-Indigenous group and by 54 per cent of the Indigenous group. Drug and substance abuse issues were more commonly cited by the Indigenous group as a concern (49 per cent) whereas non-Indigenous participants were more likely to cite mental health issues as more of a pressing concern (59 per cent).

Subjects in the Indigenous group rated family violence as the most important issue for them and/or the other party when ranking all of the issues involved in going to court. For the non-Indigenous group relocation was rated as the most important issue for them and/or the other party. Table 8 below shows the ranking of importance of the issues for both groups.

TABLE 8: Comparison of ratings of importance of the issues for Indigenous and non-Indigenous groups

  Indigenous Non-Indigenous
How important have the following issues been for you, or the other party, in the decision to go to court? Family Violence 91%
Culture 86%
Relocation 81%
Drugs / substance abuse 80%
Relocation 80%
Child support 75%
Child abuse 66%
Mental health 64%
Family violence 58%

The most notable difference between the groups when looking at the importance of the issues is the relative importance accorded to family violence as an issue. It appears to be a far more important issue for the Indigenous group than for the non-Indigenous group, although both groups cite it as a significant factor influencing the decision to go to court. Drug and substance abuse issues also figured far more prominently in the Indigenous group than the non-Indigenous group. This may also explain in part the high rating of family violence within the Indigenous group as violence in combination with drug and substance abuse is often associated with a heightened level of frequency and severity of violence.

Relocation was rated as the most important issue for the non-Indigenous group, but was also equally rated as an issue of importance for the Indigenous group. There was also a more even distribution of ratings of the various issues across the non-Indigenous group with child support, child abuse and mental health issues being rated highly within this group.

Not surprisingly, cultural issues were rated highly by the Indigenous group as an important issue. It is notable that 61 per cent of the Indigenous group rated this as an important issue for themselves but rated this as not an important issue for the other party (70 per cent). The result suggests that in the majority of disputes involving the Indigenous participants the other party was non-Indigenous - a finding consistent with the filing trends noted earlier in this paper in Table 4.

In attending court, a majority of participants in each group cited stress and frustration as the most common emotional response to attending court events such as hearings and conferences. A notable difference between the groups was in relation to the experience of disappointment with 77 per cent of the non-Indigenous group reporting high levels of disappointment compared to 55 per cent of the Indigenous group.

The experience of both groups in their contact with court personnel appears to have been fairly positive with both groups reporting high levels of satisfaction. Table 9 shows how the participants rated their experience of contact with court staff.

TABLE 9: Comparison of Indigenous and non-Indigenous views of contact with court staff

  Indigenous Non-Indigenous
In contact with court staff, either through counter or telephone inquiries, did you find staff helpful in providing information, assistance and/or referral? Very helpful 28%
Helpful 22%
Somewhat helpful 25%
Less than helpful 9%
Not at all helpful 16%
Very Helpful 12%
Helpful 27%
Somewhat helpful 40%
Less than helpful 13%
Not at all helpful 8%
I was treated with respect and sensitivity by court staff while attending court Strongly agree 29%
Agree 35%
Undecided 10%
Disagree 6%
Strongly disagree 19%
Strongly agree 11%
Agree 52%
Undecided 11%
Disagree 11%
Strongly disagree 15%

It is notable that a large majority in each group found court staff to be somewhat helpful or better. The non-Indigenous group was less forth-coming in acknowledging the helpfulness of court staff with only 12 per cent describing staff as 'very helpful’ compared to 28 per cent of the Indigenous group. A majority in each group also reported that they had been treated with respect and sensitivity by court staff when attending court - 64 per cent of Indigenous participants and 63 per cent of non-Indigenous participants.

The issue of agreement making in the course of litigating the dispute was also explored with participants. Nearly every participant reported at some stage having entered into either interim or final agreement upon some or all issues during the course of the proceedings. It was not possible to reliably determine from the data the extent to which agreements reached were final or interim agreements but it appears from the number of matters that proceeded on to final hearing that most of the responses provided relate to interim agreements reached while going to court. Table 10 shows the results obtained for each group in response to questions about agreement making during the proceedings.

TABLE 10: A comparison of the Indigenous and non-Indigenous groups on agreement making during proceedings

  Indigenous Non-Indigenous
How satisfied were you with the agreement that was made at the time you went court? Very satisfied 24%
Satisfied 26%
Neither 6%
Dissatisfied 6%
Very dissatisfied 36%
Very satisfied 21%
Satisfied 15%
Neither 9%
Dissatisfied 18%
Very dissatisfied 36%
How satisfied are you now with the agreement that was made? Very satisfied 21%
Satisfied 15%
Neither 9%
Dissatisfied 18%
Very dissatisfied 36%
Very satisfied 8%
Satisfied 6%
Neither 10%
Dissatisfied 21%
Very dissatisfied 54%
What factors contributed most to the reaching an agreement during the court case? Legal advice 34%
Lack of money 26%
Withdrawal of legal aid 17%
Family report 28%
Lack of money 26%
Just gave up 24%
Is the agreement you made still working? Yes = 30%
No = 70%
Yes = 46%
No = 54%

Satisfaction levels with the agreement made at the time of going to court differed between the groups, with 50 per cent of the Indigenous group expressing satisfaction with the agreement that had been made at the time of going to court. Participants in the non-Indigenous group expressed a lower level of satisfaction with only 36 per cent expressing satisfaction. However, the level of satisfaction had markedly declined for both groups over time with the non-Indigenous group now expressing a high level of dissatisfaction with the agreement at the time of completing the questionnaire. Of the non-Indigenous group 75 per cent expressed dissatisfaction with the agreement, with 54 per cent stating they were now 'very dissatisfied’ with the agreement.

Factors that appeared to promote agreement making were different for both groups although 'lack of money’ was cited by both groups as a contributing factor. The Indigenous group cited 'legal advice’ and the withdrawal of legal aid funding as being important contributors to reaching an agreement. This is consistent with the earlier results that suggest that participants in the Indigenous group were more likely to be legally aided. In the non-Indigenous group the main contributing factor was cited as the release of the family report that had been prepared by a family consultant. Participants in this group also cited 'just gave up’ as a reason for reaching an agreement and is consistent with the view of this group as having a higher level of grievance with the court system and as experiencing a higher level of disappointment with the outcome of proceedings.

In considering the sustainability of the agreements that had been reached, a majority in both groups reported that the agreement was no longer working. The proportion was higher in the Indigenous group at 70 per cent while in the non-Indigenous group 54 per cent reported that the agreement was no longer working. A majority in both groups attributed the breakdown of the agreement to non-compliance by one or both parties. In the Indigenous group (n=23) 78 per cent stated that non-compliance by one or both parties had occurred while in the non-Indigenous group (n=26) 85 per cent reported that the agreement was no longer complied with by one or both parties. The remainder of each group reported that the agreement was no longer working as it had been changed by informal agreement to better suit the circumstances of the parties involved.

Caution needs to be exercised in interpreting the results concerning the sustainability of agreements reached during proceedings. The data does not differentiate between interim and final agreements. Furthermore, the reasons for any agreement 'not working’ are often related to several factors of which non-compliance by either party is simply one. There are other valid reasons why an agreement might not be complied with such as changing circumstance and practical issues that arise after the agreement has been made.

4. Judicial determination

The results indicate that there is a significant difference in the extent to which the participants in each group achieved an outcome that was in their favour. The results also highlight very different perspectives on the process and manner in which the Court dealt with the issues in determining the children’s best interests. The results are summarised in Table 11.

TABLE 11: Comparison of Indigenous and non-Indigenous perspectives on judicial decision making

  Indigenous Non-Indigenous
The decision made by the Court mostly supported my case Strongly agree/Agree 48%
Undecided 12%
Strongly agree/Disagree 39%
Strongly agree/Agree 36%
Undecided 12%
Strongly agree/Disagree 51%
The final decision made by the Court was in my children’s best interests Strongly agree/Agree 48%
Undecided 12%
Strongly agree/Disagree 39%
Strongly agree/Agree 32%
Undecided 9%
Strongly agree/Disagree 59%
I was satisfied with how my case was handled by the Court even if I might disagree with the final decision Strongly agree / Agree 54%
Undecided 9%
Strongly agree / Disagree 36%
Strongly agree / Agree 32%
Undecided 8%
Strongly agree / Disagree 58%
I was satisfied that the court process was fair and unbiased Strongly agree / Agree 38%
Undecided 19%
Strongly agree / Disagree 42%
Strongly agree / Agree 22%
Undecided 16%
Strongly agree / Disagree 63%
I was able to have a fair say about what would be best for my children Strongly agree / Agree 45%
Undecided 6%
Strongly agree / Disagree 48%
Strongly agree / Agree 28%
Undecided 16%
Strongly agree / Disagree 57%
I believe the Court had all the information it required to make a decision that would be in my children’s best interests Strongly agree / Agree 48%
Undecided 9%
Strongly agree / Disagree 42%
Strongly agree / Agree 57%
Undecided 4%
Strongly agree / Disagree 39%

The results demonstrate a significantly higher level of negativity on the part of the non-Indigenous group when responding to statements about the Court’s management of their case and the determination of the children’s best interest. The results clearly show that the non-Indigenous group was less likely to have had a favourable outcome from a judicial decision than the Indigenous group. Over half of the non-Indigenous group (51 per cent) reported that the Court’s decision did not favour their case while in the Indigenous group only 39 per cent were of a similar view. In the Indigenous group 33 per cent 'strongly’ agreed that the Court’s decision favoured their case while in the non-Indigenous group only 16 per cent reported strong agreement.

A similar result was obtained in relation to the groups’ views upon whether the Court’s decision was in the children’s best interests. Fifty-nine per cent of the non-Indigenous participants either strongly disagreed or disagreed with the statement that the decision was in the children’s best interests. In comparison only 39 per cent of the Indigenous group were of a similar view with 48 per cent of the group stating that they either strongly agreed (42 per cent) or agreed (six per cent) with the statement that the decision was in the children’s best interests.

This pattern of responding was also apparent in the level of agreement with the statement regarding the Court’s handling of the participant’s case. In considering the Court’s handling of their case, a majority of the non-Indigenous group (58 per cent) expressed dissatisfaction with the Court’s handling of their case. In comparison only 36 per cent of the Indigenous group was of a similar view with a majority of the Indigenous group (54 per cent) expressing satisfaction with the manner in which their case was managed by the Court even though they might disagree with the outcome.

The non-Indigenous group was far more likely to view the court process as unfair and biased when compared to the Indigenous group. Sixty-three per cent of the non-Indigenous participants strongly disagreed or disagreed with the statement that the court process was fair and unbiased. In comparison only 42 per cent of the Indigenous participants shared this view. Gender bias did not appear to be an issue in this pattern of responding as females were just as likely to report bias and unfairness as were males in both groups.

A majority of the non-Indigenous group (57 per cent) did not agree with the statement that they were able to have 'a fair say’ about what would be best for their children. Notably 16 per cent of this group was also undecided on this issue as well. In comparison 48 per cent of the Indigenous group shared this view and responded that they were not able to have a fair say about their children’s best interests. This finding may to some extent account for the perception of unfairness and bias in the court process, particularly if participants feel that they have not had 'a voice’ in expressing their views upon the children’s best interests.

Both groups tended to agree that the Court had 'all the information it required’ to make a decision that would be in the children’s best interests. Somewhat surprisingly, 57 per cent of the non-Indigenous group reported that the Court had all of the information it required to make a decision. Forty-eight per cent of the Indigenous group also shared this view. For the non-Indigenous group, especially given that they report less favourable outcomes for their case, the belief that the Court had the information it required and still made a decision contrary to their views, adds even more to their disappointment with court processes and adds to the perception of bias and unfairness.

It is also notable that a majority in both groups disagreed with the statement that the orders made by the Court were working well. The non-Indigenous group was more likely to hold this view with 64 per cent stating that the orders made by the Court were not working well, while 53 per cent of the Indigenous group shared this view.

5. Indigenous cultural issues

Table 12 below provides a summary of the views of the Indigenous group in relation to the Court’s handling of Indigenous cultural issues. The results generally suggest that from an Indigenous perspective the courts have not adequately addressed the issues relating to the cultural back ground of Indigenous children.

TABLE 12: Indigenous views of the courts handling of Indigenous cultural issues

AGREE / DISAGREE Indigenous
The cultural needs of my children, as Aboriginal and/or Torres Strait Islander children, were properly considered by the Court Strongly agree / Agree 38%
Undecided 13%
Strongly agree / Disagree 53%
The Court was given enough information about Aboriginal and/or Torres Strait Islander cultural issues to be able to make a decision about what would be best for my children Strongly agree / Agree 35%
Undecided 19%
Strongly agree / Disagree 47%
I am confident that my child’s right to participate in Aboriginal and/or Torres Strait Islander culture has been preserved as a result of the decision made by the Court Strongly agree / Agree 38%
Undecided 19%
Strongly agree / Disagree 42%
I believe my lawyer and I effectively conveyed to the Court the importance of considering Aboriginality and its importance for the children as they grow up Strongly agree / Agree 38%
Undecided 25%
Strongly agree / Disagree 38%
The Court displayed respect and understanding in response to my concerns about Aboriginal cultural and its importance for the children Strongly agree / Agree 29%
Undecided 25%
Strongly agree / Disagree 47%

A majority of the Indigenous participants (53 per cent) indicated that the Court had not properly considered the cultural needs of Indigenous children. Thirty-three per cent 'strongly’ disagreed with the statement that the children’s cultural needs had been properly considered by the Court. Forty-seven per cent did not agree with the statement that the Court had 'enough information’ about Indigenous cultural issues to be able to make a decision about the children’s best interests.

The Indigenous group was almost equally divided on the statement that the decision made by the Court was likely to preserve the children’s right to participate in Indigenous culture with 42 per cent disagreeing with the statement and 38 per cent in agreement with the statement. Similarly the group was equally split in their assessment of the statement that they and their lawyer had effectively conveyed to the Court the importance of considering the Indigenous status of the children.

A result that is of particular concern is that less than 30 per cent of the Indigenous group believed that the Court displayed respect and understanding in response to their concerns about culture and its importance for children. Forty-seven per cent of participants disagreed with the statement that the Court had displayed respect and understanding regarding the importance cultural issues.

These comments were also echoed in interview with Indigenous participants who in many instances felt that the Court was sceptical about their views on the importance and relevance of cultural issues. Several of the Indigenous participants reported feeling that their identity as Aboriginal people had been challenged in court, sometimes with the unstated assertion that Indigenous culture was somehow being utilised for strategic purposes.

6. Family reports

A majority of the participants in the Indigenous group were critical of the family report writer on all aspects of the family report, but particularly the report writer’s ability to deal with Indigenous cultural issues. Table 13 below summarises the views of the Indigenous group upon the assessment of the cultural issues in family reports.

TABLE 13: Indigenous perspective regarding the assessment of Indigenous cultural issues in family reports

AGREE / DISAGREE Indigenous (n=21)
The family report writer assessed the cultural issues relevant to what would be best for the children Strongly agree / Agree 28%
Undecided 18%
Strongly agree / Disagree 54%
The family report writer displayed a reasonable understanding of the cultural issues involved in my case Strongly agree / Agree 23%
Undecided 23%
Strongly agree / Disagree 54%
The family report writer displayed a reasonable level of cultural sensitivity in their contact with me and my family Strongly agree / Agree 27%
Undecided 18%
Strongly agree / Disagree 54%
I was satisfied that the family report writer did their best to understand and report upon the cultural issues that affected my children Strongly agree / Agree 23%
Undecided 18%
Strongly agree / Disagree 59%

More than half of the Indigenous group (57 per cent) disagreed with the statement that the family report writer had assessed the cultural issues relevant to the children’s best interests. A majority of the Indigenous group (55 per cent) also stated that the report writer did not have a reasonable understanding of the cultural issues involved. This criticism of the family report was consistent across all statements relating to family reports. A majority of the Indigenous group (54 per cent) also stated that the report writer did not display a reasonable level of cultural sensitivity in their contact with them and their family. Of particular concern, a majority of the Indigenous group (59 per cent) did not believe that the report writer had done their best to understand and report upon the cultural issues affecting the children.

The non-Indigenous group was also highly critical of family reports. Fifty per cent of the non-Indigenous participants disagreed with the statement that the family report writer had assessed the issues relevant to what would be best for the children. The non-Indigenous group also tended to be even less likely to agree with the recommendations of the family report writer with 59 per cent of the non-Indigenous group stating that they did not agree with the recommendations made by the report writer.

Table 14 below shows the comparison across groups of the extent to which they agreed with the recommendations of the report writer and the extent to which the believed the Independent Children’s Lawyer was effective in representing the best interests of the children.

TABLE 14: Indigenous perspective regarding family report recommendations and the role of the Independent Children’s Lawyer

Agree / Disagree Indigenous Non-Indigenous
I did not agree with the recommendations made by the family report writer Strongly agree / Agree 29%
Undecided 19%
Strongly agree / Disagree 53%
Strongly agree / Agree 22%
Undecided 19%
Strongly agree / Disagree 59%
The ICL was effective in representing the best interests of the children Strongly agree / Agree 42%
Undecided 24%
Strongly agree / Disagree 35%
Strongly agree / Agree 36%
Undecided 6%
Strongly agree / Disagree 58%

Given that a majority in both groups did not agree with the recommendations of the family report writer, it is not surprising that the participants are critical of the family report writer. The results in Table 14 also add to the picture of the non-Indigenous group as being particularly aggrieved when compared to the Indigenous group - they had less favourable outcomes from judicial decisions, they disagreed more strongly with the recommendations of the report writer, and they were far less likely to view the Independent Children’s Lawyer as having been effective in promoting the children’s best interests.

7. Practitioner perspectives

The views of family law practitioners who had represented Indigenous clients tended to provide a more balanced and possibly objective view of the issues relating to Indigenous people’s experience of family law litigation. In each instance practitioners were asked to focus upon a case involving an Indigenous client who they had represented in court. Table 15 provides a summary of the practitioner perspectives upon pre-filing action.

  1. Pre-filing action

Practitioners were asked a series of questions that mirrored the questions that had been put to the Indigenous group. The results are shown in Table 15 below.

TABLE 15: Family law practitioner perspectives regarding pre-filing action

  Family law practitioners (n=30)
What attempt was made to resolve the dispute before going to court? No attempt made 33%
Legal Aid Conference 27%
Negotiation - Lawyers 27%
Family Relationship Centre 17%
Exemption due to family violence 17%
Why was it not possible to reach agreement before going to court? Family Violence Issues 37%
Entrenched communication issues 37%
Relocation issues 37%
Child Protection issues 30%
Was an agreement reached between the parties after the commencement of court proceedings? Yes = 47%
No = 53%
If an agreement was reached post-filing what were the main factors that led your client to reach an agreement? Negotiation between Lawyers 27%
Release of family report 23%
Stress of proceedings 23%

It is a concern that in 33 per cent of the matters cited by practitioners, no formal attempt had been made to resolve the matter prior to the commencement of proceedings. It is noted that 17 per cent of the matters were exempt from attendance at dispute resolution due to family violence issues. However, this represents only half of those matters where no attempt was made at dispute resolution. It is also notable that only 17 per cent of these matters had any involvement with Family Relationship Centres and that the first attempt at dispute resolution was more likely to be a Legal Aid Conference.

The results raise some concern as to the accessibility and availability of dispute resolution services for Indigenous people prior to going to court. When considered in light of the relatively lower uptake of dispute resolution services by way of Family Relationship Centres (as reported earlier by Indigenous litigants - see Table 7) the results suggest that the accessibility of dispute resolution services may be an issue for Indigenous families.

Practitioners also described domestic violence issues, relocation issues and entrenched communication issues as the most likely reasons for failure to reach agreement at dispute resolution.

In attending court, the practitioners described their clients as experiencing very high levels of stress (90 per cent) and frustration (75 per cent) - levels much higher than reported by the Indigenous participants themselves.

  1. Judicial determination

Practitioners expressed higher levels of satisfaction and confidence with the Court’s handling of their cases than that expressed by Indigenous litigants. On every statement regarding court processes and outcomes, the practitioners rated the Court more highly than the Indigenous litigant group. The results are shown below in Table 16. The figures shown in brackets are the comparable results obtained for Indigenous litigants in responding from their personal perspective to this statement.

TABLE 16: Family law practitioner perspectives on judicial decision making in matters involving Indigenous clients

Agree / Disagree Family Law Practitioner
The decision made by the Court mostly supported my client’s case Strongly agree / Agree 58% (48%)
Undecided 15% (12%)
Strongly disagree/ Disagree 27% (39%)
The final decision made by the Court was in the children’s best interests Strongly agree / Agree 62% (48%)
Undecided 17% (12%)
Strongly disagree/ Disagree 21% (39%)
I was satisfied with how my client’s case was handled by the Court even if it was not the desired outcome for my client Strongly agree / Agree 65% (54%)
Undecided 15% (19%)
Strongly disagree/ Disagree 19% (36%)
My client was satisfied that the Court process was fair and unbiased Strongly agree / Agree 50% (38%)
Undecided 21% (19%)
Strongly disagree/ Disagree 29% (42%)
My client was able to have a fair say about what would be best for their children Strongly agree / Agree 73% (45%)
Undecided 4% (6%)
Strongly disagree/ Disagree 23% (48%)
I believe the Court had all the information it required to make a decision on the best interests of my client’s children Strongly agree / Agree 58% (48%)
Undecided 13% (9%)
Strongly disagree/ Disagree 29% (42%)
My client clearly understood the reasons given by the Court in making a decision Strongly agree / Agree 65% (50%)
Undecided 17% (9%)
Strongly disagree/ Disagree 17% (40%)

A majority of practitioners agreed that the decision made by the Court was in the children’s best interests (63 per cent) and were satisfied with the way in which their client’s case was handled by the Court (65 per cent). A large majority of practitioners (73 per cent) agreed that their client had a fair say about what would be best for the children and 65 per cent reported that their client clearly understood the reasons given by the Court for its decision (65 per cent). A majority of practitioners (67 per cent) also stated that the Court was given enough information to understand the importance of cultural issues from their client’s perspective.

It is notable that only half of the practitioners reported that their client was satisfied that the Court process was fair and unbiased. The results suggest a tendency for Indigenous litigants to perceive bias and unfairness in the Court’s handling of their case. Such a tendency is not surprising given the history of Indigenous people’s involvement with the Australian legal system.

  1. Indigenous cultural issues

Practitioners were generally less satisfied with the Court’s handling of Indigenous cultural issues than they were with the overall handling of their client’s case. Only 46 per cent of practitioners reported that the cultural needs of the children had been properly considered by the Court. At the same time practitioners reported that the Court had been given 'enough information’ to understand the importance of cultural issues for the Indigenous litigant. The results are shown in Table 17 below.

TABLE 17: Family law practitioner perspectives on the Court’s handling of Indigenous cultural issues.

Agree / Disagree Family Law Practitioner
The cultural needs of my client’s children were properly considered by the Court Strongly agree / Agree 46%
Undecided 33%
Strongly disagree/ Disagree 21%
I believe the Court was given enough information to understand the importance of cultural issues for my client Strongly agree / Agree 67%
Undecided 17%
Strongly disagree/ Disagree 16%
I am confident that my client’s children’s right to participate in Aboriginal and /or Torres Strait Islander culture has been preserved as a result of the decision made by the Court Strongly agree / Agree 56%
Undecided 32%
Strongly disagree/ Disagree 12%

Fifty-six per cent of practitioners viewed the Court’s decision as preserving the Indigenous child’s right to participate in their culture with others. It is noted that agreement with this statement was not strong with only 19 per cent strongly agreeing with the statement while a third of practitioners remained undecided on this question.

  1. Family reports

Practitioners tended to have a negative view of family reports in these cases and were critical of report writers when it came to the assessment of cultural issues. Only 37 per cent agreed that the report writer had effectively assessed the cultural issues relevant to what would be best for the children. Not one single practitioner 'strongly’ agreed with the statement, while the majority (53 per cent) believed the report writer had not effectively assessed the cultural issues involved. The results are shown below in Table 18.

TABLE 18: Family law practitioner perspectives regarding the assessment of Indigenous cultural issues in family reports

Agree / Disagree Family Law Practitioner
The family report writer effectively assessed the cultural issues relevant to what would be best for the children Strongly agree / Agree 37%
Undecided 11%
Strongly disagree/ Disagree 53%
The family report writer displayed at least an adequate level of expertise in their evaluation of the cultural issues involved in my client’s case Strongly agree / Agree 53%
Undecided 16%
Strongly disagree/ Disagree 32%
The family report writer had sufficient information available to them to form an opinion upon the relevance and importance of cultural issues in this case Strongly agree / Agree 50%
Undecided 20%
Strongly disagree/ Disagree 30%

The views expressed by practitioners tended to reflect the views of Indigenous litigants who also expressed concern about the assessment of cultural issues in family reports. This was a common theme for both groups in reporting upon their experiences of the courts’ decision making processes.

Discussion

This study (for the first time) provides data bearing directly upon the views and experiences of Indigenous litigants who have been involved in family law proceedings. The results of this study provide some insight into the nature of Indigenous matters coming before the courts and in particular, the experiences of Indigenous people in relation to judicial decision making and the courts’ consideration of Indigenous cultural issues. Further significant issues arising from this research have been the experience of Indigenous people in attending family dispute resolution and their participation in the preparation of family reports as prepared by family consultants. The extent to which these perspectives are representative of the broader population of Indigenous litigants is difficult to tell due to the uniqueness of the experience of litigants involved in court proceedings and the relatively small number of participants involved in this study.

It has not been possible in this study to directly compare the experiences of Indigenous and non-Indigenous litigants as initially proposed. This was due to differences in the characteristics of the two groups as well as differences in sampling methods that involved a differing level of engagement with each group. The most notable differences between the groups were evident in differences in socio-economic status and their litigation profiles. Socio-economic status in many instances impacts on the eligibility of litigants to access legal aid. It appears likely that the Indigenous group has been more able to gain legal representation as evidenced by differences in the extent to which litigants were self-represented with more than half the Indigenous group reporting that they were legally represented throughout proceedings while almost two-thirds of the non-Indigenous group reported that they were self-represented in all or part of the proceedings. The availability of legal representation is likely to have a significant impact on the individual’s experience of the litigation process, including heightened levels of stress, confusion regarding procedural matters, less capacity to negotiate agreements, and possibly differing outcomes.

The litigation profile of the non-Indigenous group was also markedly different to that of the Indigenous group. It appeared, for example, from the disproportionate number of Independent Children’s Lawyers involved in the non-Indigenous matters (almost twice the number) that these matters were likely to be more complex cases. It was also clearly evident that the non-Indigenous group was less likely to have achieved a favourable outcome in their case and that they bore a higher level of grievance regarding the process and outcome of court proceedings. These observed differences are most unlikely to be related to cultural factors and are more likely to be an artefact of the sampling methods employed in the study.

In many ways this study has highlighted the difficulty of engaging Indigenous people in research, particularly research of this nature involving survey methods and interviews about sensitive, court-related matters. The three per cent response rate for the mail-out to Indigenous clients is an extremely poor rate of return, but one that is not unexpected given the instability of living arrangements for most people during the course of family breakdown and resultant family law proceedings. When this is combined with the higher level of mobility of Indigenous people and the noted reticence of Indigenous people to voluntarily participate in research, the poor response rate is understandable.

In addressing the difficulty of recruiting Indigenous litigants to participate in this study, it was necessary to adopt a more proactive approach to engaging with Indigenous litigants and encouraging and supporting their participation in this research. This involved direct contact with potential Indigenous participants, including discussion with them about the research and encouragement and support for their ongoing participation. Without this approach it would not have been possible to recruit and retain a sufficient number of Indigenous participants to make this research viable. This process of engagement - that is perhaps best characterised as a 'warm’ versus 'cold’ engagement with participants - was not replicated with the non-Indigenous participants. The overall response rate of non-Indigenous litigants to the mail-out was about 10 per cent and due to a far higher number of potential participants random selection and mail-outs could be repeated as required to obtain a reasonable sized sample of former non-Indigenous litigants.

As a result of these differing sampling methods, the two groups cannot be reliably compared with one another due to some significant differences in their composition that go beyond the fundamental difference of Indigenous status. There are however some comparisons that can be made between the groups on some factors of interest in this study, but at all times it is important to be mindful of issues relating to the different composition of the groups.

The difficulty of recruiting Indigenous litigants in this study has also highlighted issues associated with the gathering and recording of data upon Indigenous people’s usage of the Family Law Courts. It became apparent during the study that the courts’ Casetrack system is not a reliable source of data regarding the extent to which Indigenous people use the courts. There are a number of reasons for this that include practitioners omitting to record Indigenous status when completing forms and court staff not inquiring about Indigenous status at the time of accepting documents for filing. There is also evidence to suggest that even when Indigenous status is known to court staff, Casetrack records are not updated by recording Indigenous status. For example, manual checks of Casetrack records in matters that were positively known to be Indigenous cases indicated that almost half of the matters examined were not recorded in Casetrack as Indigenous cases.

Hence, at present there is no reliable means of assessing the extent to which Indigenous people resort to litigation in the Family Law Courts. It is most likely that the data currently available under-represents the true extent of Indigenous usage of the family court system. This view has some support from a recent survey of court users that found of the 1300 people surveyed whilst attending court, three per cent identified as Indigenous.

A review of the existing data on Indigenous people’s usage of the courts suggests that in recent years there has been a marked change in filing trends (see Figure 1). This trend occurring in 2008-09 shows a pronounced decline in the number of Indigenous applicants seeking final orders in 2008-09 after what appears to be a four year period of relative stability in applications filed. At the same time there has been an increase in Indigenous people as respondents and a steady increase in the number of matters in which both parties are Indigenous.

The reason for this change in filing trends is difficult to gauge and it is unlikely to be attributable to any one factor alone. One possible factor is the cessation of the Court’s Indigenous Family Liaison Officer (IFLO) during this period. The role of these Indigenous staff members was to assist Indigenous people to access court services and to provide information and education relevant to the needs of Indigenous families. This included referral to legal agencies, as well as advice and support for individual’s dealing with family law issues, including information about going to court. Although these Indigenous officers were few in number and were based in the Northern Territory and far North Queensland, they had a national profile and were often the first point of referral for court staff (and others) working in other locations when dealing with Indigenous families. They also played a highly significant role in dispute resolution in the locations in which they were employed.

A further possible factor underlying the observed change in filing patterns is the expansion and consolidation of the work undertaken by Family Relationship Centres (FRC) as the first point of contact for the public in dealing with family law issues. It is possible, for example, that the appointment of Indigenous advisors in FRC locations across the country may have provided Indigenous families with improved access to dispute resolution thereby leading to a decline in those seeking to litigate their disputes in the family courts. An alternative explanation is that access to the courts has declined with the cessation of the Indigenous Family Liaison Officer program and that this is associated with a loss of confidence in the family courts on behalf of Indigenous people. This is an area of interest that requires further investigation in examining issues of access to justice in this area.

There appears to be a lack of reliable evidence bearing upon the role played by FRCs and Indigenous advisors in assisting Indigenous people to resolve their disputes prior to commencing proceedings in court. Information provided by Family Relationship Services Australia (FRSA) indicates that 1.8 per cent of clients accessing dispute resolution were Indigenous in 2008-09. According to FRSA this figure may under-represent the actual number of Indigenous matters that go to dispute resolution due to Indigenous matters being more likely to be 'unregistered’ and as such not recorded in national data.

A further change in Indigenous filing patterns appears to be an increase in matters where both parties are Indigenous. The reasons for this change are even less clear and caution needs to be exercised in considering this change due to the small numbers involved. A variety of factors may be involved in such a change that include not only the availability of culturally appropriate dispute resolution services, but other factors such as the availability of legal aid funding, the availability of support services for Indigenous families such as Aboriginal Family Violence Prevention Legal Services, and Federal Magistrate Court circuits to regional locations.

These apparent changes in filing trends draw attention to the accessibility of dispute resolution services that are available to Indigenous people prior to the commencement of court proceedings. The results of the current study suggest that Indigenous litigants have not been able to make proper use of pre-filing dispute resolution services. For example, Indigenous litigants were far less likely to have accessed dispute resolution via a FRC when compared to non-Indigenous litigants. Only 31 per cent of the Indigenous group reported having attended dispute resolution via a FRC compared to 50 per cent of the non-Indigenous group. The contrast is even more stark when it is noted that the non-Indigenous matters tended to be more complex cases. It is also noted that possible exclusion due to domestic violence issues is not likely to be a factor here as both groups equally cite domestic violence as being a factor in the failure to reach agreement in dispute resolution.

The results also indicated that Indigenous matters were more likely to proceed to a legal aid conference as the first dispute resolution event when compared to non-Indigenous matters - seemingly by-passing family dispute resolution as provided by FRCs. Thirty-four per cent of the Indigenous litigants cited attendance at a legal aid conference as the first dispute resolution event while only 20 per cent of the non-Indigenous matters attended legal aid conferences. This situation was also reflected in the information provided by family law practitioners who also cited attendance at a legal aid conference as more likely to have occurred than attendance at dispute resolution at a FRC.

Non-attendance at dispute resolution also appears to be a significant factor involved in the failure of dispute resolution in Indigenous matters at the pre-filing stage. For example, non-attendance at dispute resolution by the other party was cited by Indigenous litigants at twice the rate of non-Indigenous litigants for the failure to reach agreement prior to the commencement of proceedings. It is also notable that family law practitioners reported that in a third of the cases involving Indigenous litigants, no attempt was made at dispute resolution prior to the commencement of proceedings with only half of these matters being excluded from attendance due to family violence. Together these results raise concern regarding the capacity of service providers to engage with Indigenous people at the pre-filing stage and to provide accessible and appropriate dispute resolution services. In view of the fundamental importance of early intervention in resolving family disputes, the issue of Indigenous peoples’ access to family dispute resolution services is a subject that requires further careful investigation.

Going to Court: Indigenous Perspectives

The decision to commence court proceedings in many of the Indigenous cases was prompted by concern over issues of family violence. Amongst the Indigenous litigants this was cited as the most important issues for them, or the other party, in making the decision to go to court. In 91 per cent of the Indigenous matters, family violence was cited as a factor in this decision, whereas in the non-Indigenous group it was cited as a factor in 58 per cent of the cases. Family violence also featured prominently in family law practitioners’ descriptions of factors that prevented agreement being reached at the pre-filing stage. Thirty-seven per cent of practitioners cited family violence as a factor that worked against the resolution of the dispute prior to the matter coming to court. These results suggest that family violence is perhaps a more prevalent issue in Indigenous matters when compared to non-Indigenous matters. Such a finding is not inconsistent with what is known about the prevalence of family violence in the broader Indigenous community.

Other issues that featured prominently in Indigenous participants’ decisions to go to court were cultural issues and drugs/substance abuse. These were cited by 86 per cent and 80 per cent, respectively, of the Indigenous litigants as matters that featured prominently in the decision to go to court. In light of the fact that about 80 per cent of the Indigenous litigants were likely to have been involved in a dispute with a non-Indigenous party it is not surprising that Indigenous cultural issues should be raised by a large majority as a significant issue.

Drugs/substance abuse also figured prominently among the Indigenous litigant’s account of factors that were involved in the decision to go to court. That is, 80 per cent of the Indigenous litigants cited this as a factor influencing the decision to go to court, while the non-Indigenous litigants cited this as a factor in 38 per cent of cases. Alcohol was also cited more commonly among the Indigenous litigants as a factor for themselves and/or the other party in making the decision to go to court. Alcohol abuse was however not rated as a major contributing factor in the decision to go to court but was rated by 59 per cent of the Indigenous litigants and 32 per cent of the non-Indigenous litigants as a contributing factor.

The actual experience of going to court was described by both groups in similar terms - that is, stressful and frustrating. The non-Indigenous group also expressed a high level of disappointment that was consistent with the report of the majority that judicial decisions did not favour their case. It was also notable that the family law practitioners reported higher levels of stress and frustration on the part of the Indigenous clients they had represented than was actually reported by the Indigenous participants in this study. Such a result is likely to be associated with the differing characteristics of the cases in each sample with the cases referred to by practitioners as possibly being more difficult and complex cases.

The groups also reported in a similar manner upon their experiences of dealing with court staff with a majority in each group expressing satisfaction with the manner in which they were treated by court staff. That is, in contact with court staff either at the counter or by telephone a majority in each group found staff to be somewhat helpful or better. A majority in each group also agreed that court staff had treated them with respect and sensitivity when they had attended court.

Information was also sought from both groups regarding the making of agreements during court proceedings. The level of satisfaction with the agreement at the time of making the agreement and the current level of satisfaction were assessed. A difficulty though with this was that the questions posed did not distinguish between interim and final agreements and that this tends to confound the interpretation of the results in this area. Hence, some caution needs to be exercised in interpreting these results.

It was found that a majority in the non-Indigenous group (56 per cent) expressed dissatisfaction with agreements that were made at the time of going to court while half of the Indigenous group expressed satisfaction with the agreements that were made at that time. For both groups, the level of dissatisfaction had increased markedly over time with 75 per cent of the non-Indigenous and 54 per cent of the Indigenous group expressing dissatisfaction with the current working of the agreement.

In examining the sustainability of the agreements reached, participants were asked whether the agreement was still working and if not, why not. Of the Indigenous group 70 per cent reported that the agreement was no longer working with responses equally divided between the agreement having been changed due to a further informal agreement being made, or due to non-compliance by one or both parties. In comparison, 56 per cent of the non-Indigenous group reported that the agreement was no longer working with 85 per cent reporting that this was due to non-compliance by themselves or the other party.

In reaching agreement the Indigenous participants cited legal advice as contributing most to the reaching of an agreement. Other factors cited were the withdrawal of legal aid funding and lack of money as contributing to the agreement. The non-Indigenous group referred to the recommendations of the family report writer as the factor that contributed most to an agreement being met. Lack of money, 'just gave up’ and psychological distress were other factors that contributed to an agreement being reached. The differences between the groups once again tend to reflect the differing litigation profiles of the groups with the Indigenous group possibly having better access to legal aid and the non-Indigenous group more likely to be self-represented, or meeting their own legal costs, but also more likely to be facing an adverse outcome from the proceedings, particularly as foreshadowed by the recommendations of the family report writer.

The subject of agreement making during court proceedings is one that warrants further study. While noting the limitations inherent in the current study’s investigation of this area, the possibility appears to exist that agreements tend to be made under a degree of duress in the heat of litigation, and that such agreements may not be sustainable over time with significant issues arising with compliance. In view of the fact that the vast majority of litigated matters do not go to final hearing, but are resolved by an agreement between the parties, the factors that contribute to agreement, the motives of the parties in reaching agreement, and the sustainability of such agreements are highly significant factors that require further investigation in light of the issues that have been raised in this research.

Judicial Decision Making: Indigenous Perspectives

The Indigenous participants provided a fairly balanced account of their experiences of the courts’ decision making processes. On most statements regarding decision making participants’ responses were almost equally spread along the continuum of agreement /disagreement. This was not the case in the non-Indigenous group who expressed a far higher level of negativity towards the courts’ decision making processes. As noted earlier, the groups are not directly comparable in this area due to the differing litigation profiles and other differences that are likely to confound the interpretation of any comparisons that might be drawn.

It is notable that a majority of the Indigenous group (54 per cent) were satisfied with how their case was handled by the Court even if they disagreed with the final decision made by the Court. Only 36 per cent of the sampled expressed dissatisfaction with the courts handling of their case while nine per cent remained undecided on this issue. In many ways such a result demonstrates some degree of confidence in judicial decision making on the part of the Indigenous group. This finding is also supported by the fact that 48 per cent of the Indigenous group agreed that the Court’s final decision was in the best interests of the children. This finding should however also be considered in light of the fact that 48 per cent of the Indigenous litigants reported that the Court’s final decision favoured their case.

An area of concern for Indigenous litigants though appeared to be that of fairness and bias in court processes. Forty-two per cent of the Indigenous litigants did not believe that the court process was fair and unbiased. Nineteen per cent of the group was undecided on this issue while only 38 per cent agreed with the statement that the process was fair and unbiased. The result is somewhat at odds with the level of satisfaction expressed by the Indigenous litigants about the Court’s overall handling of their case. In relation to the issue of fairness and bias it is notable that the practitioners group also reported that their client did not necessarily view the process as fair and unbiased. Amongst practitioner only half of the group reported that their client perceived the process to be fair and unbiased, while 29 per cent reported that their client’s experience was one of unfairness and bias, with 21 per cent of practitioners undecided on this issue.

The Indigenous litigants also generally believed that they had not been able to have a fair say about what would be best for the children. Only 45 per cent of the Indigenous group agreed with this statement. Forty-eight per cent expressed the view that they had not been able to have a fair say regarding what they believed would be best for their children.

These results are somewhat concerning as the principle of fair and impartial decision making is fundamental in maintaining community confidence in the judicial system. Although Indigenous litigants generally expressed a fair degree of satisfaction with the courts’ processes it appears that despite this they also have a tendency to perceive bias and unfairness as embedded in the courts’ processes. As noted earlier this is perhaps not surprising given the historical experience of Indigenous people in dealing with the Australian legal system.

A further concern arising from the information provided by Indigenous litigants was that of the current functioning of the orders made by the Court. That is, a majority of the Indigenous group (53 per cent) reported that the orders made by the Court were not 'working well’. It was not possible to clearly ascertain the reasons for this, though given that these matters were determined by the courts in the previous three years it suggests that there are likely to be problems associated with the implementation and sustainability of orders made by the courts over time. The non-Indigenous group also strongly indicated that the court orders were not working well with 64 per cent stating that the orders were not working well.

There were two other areas that Indigenous litigants also reported unfavourably upon - the Court’s consideration of Indigenous cultural issues and the assessment of cultural issues in family reports. For example, a majority of the Indigenous litigants (53 per cent) did not believe the cultural needs of the children had been properly considered by the Court. Almost half the Indigenous group (47 per cent) did not believe that the Court had enough information about Indigenous cultural issues to be able to make a proper decision. Of particular concern was the finding that less than 30 per cent of the Indigenous litigants believed that the Court displayed respect and understanding in response to their concerns about culture and its importance for Indigenous children. This perspective upon the courts’ consideration of cultural issues was also shared to some extent by family law practitioners of whom less than half (46 per cent) were of the opinion that the Court had given due consideration to the cultural needs of the Indigenous children.

The views expressed by litigants and practitioners regarding the courts’ deliberation upon Indigenous cultural issues is of particular concern given the emphasis the Family Law Act places upon the requirement of judicial officers to consider (amongst other things) the cultural needs of all Indigenous children when determining a child’s best interests. Comments provided by Indigenous litigants in interview revealed that many believed the concern they expressed about the importance of cultural issues was ignored, or at worst viewed as a disingenuous attempt to gain a strategic advantage over the non-Indigenous other party. Several litigants expressed anger and distress at having their Aboriginal identity questioned and challenged during court proceedings.

The other area of concerns for Indigenous litigants was the assessment of Indigenous cultural issues by family report writers. More than half of the Indigenous group (57 per cent) disagreed with the statement that the family report writer had assessed the cultural issues relevant to the children’s best interests. A majority of the Indigenous group (55 per cent) stated that the report writer did not have a reasonable understanding of the cultural issues involved. A majority of the Indigenous group (54 per cent) stated that the report writer did not display a reasonable level of cultural sensitivity in their contact with them and their family. Of particular concern was the finding that 59 per cent of the Indigenous group did not believe that the report writer had done their best to understand and report upon the cultural issues affecting children. Collectively these comments reflect poorly on the capacity of report writers to engage with Indigenous litigants and their ability to provide a reliable evaluation of the Indigenous cultural issues bearing upon the best interests of the child.

The concern of Indigenous litigants in relation to family reports was also echoed in the comments provided by family law practitioners. Fifty-three per cent of the practitioners reported that the family report writer did not effectively assess the cultural issues relevant to what would be best for the children. Although 53 per cent of practitioners also agreed that the report writer had displayed 'at least an adequate’ level of expertise in dealing with Indigenous cultural issues it was generally considered that this expertise did not translate into the provision of a thorough or reliable assessment of the Indigenous cultural issues involved in the case.

The comments provided by practitioners on cultural issues and family reports stand in stark contrast to their reports upon most other aspects of the court process and judicial decision making. In general the views of family law practitioners are mostly positive with a relatively high proportion of practitioners displaying satisfaction and confidence in the way the Court has dealt with their cases. These two areas - the consideration of cultural issues and family reports - are the exceptions with practitioners expressing strong concern about the courts’ capacity to give due consideration to cultural issues in matters involving Indigenous families.

The concerns expressed by Indigenous litigants and family law practitioners suggest that decision making in relation to Indigenous children may be taking place in circumstances where the Court has not been able to obtain a reliable or accurate assessment of the cultural issues impacting upon the best interests of Indigenous children. When considered in light of the marked influence that family reports have upon judicial decision making, as well as negotiations upon terms of settlement, it is possible that a disservice may be done to Indigenous litigants in the Court’s attempt to achieve a just outcome in such matters.

Limitations of the Research and Future Directions

The research described herein represents the first systematic attempt to examine the views and experiences of Indigenous litigants in the family law proceedings. It has been undertaken with a view to studying Indigenous people’s access to justice in the family court system. It must be acknowledged though that there are limitations in this research and its methodology that need to be considered in interpreting the significance of the findings. The original intent of comparing and contrasting the experience of Indigenous and non-Indigenous litigants has not been realised to any significant degree. The application of differing sampling methods and the inability to control specific variable such as the complexity of cases, socio-economic class, and differential litigation outcomes have meant that comparison across the two groups has largely been impossible. As such any comparisons that may have been drawn need to be treated with some caution.

It is also acknowledged that the sample size of the Indigenous group is relatively small and that the findings of this study might not be representative of the experiences and views of the broader population of Indigenous litigants. The study in many ways has highlighted the difficulty of conducting research in this area with Indigenous litigants.

With hindsight the retrospective examination of the perspectives of former Indigenous litigants has not been the most effective or reliable means of gathering data. That is, it has proven difficult to locate and recruit participants using Casetrack data and the absence of detail in litigant’s recollection of past events also influences the quality of the data obtained. An alternative approach to this would be to actively recruit participants during the litigation process and to conduct exit and follow-up interviews at six and 12 month intervals once the case has been finalised. Such a strategy would require a far greater commitment of time and resources than has been possible in the present study but would effectively recruit a larger number of participants who would perhaps be more representative of the broader population of Indigenous litigants. The data obtained would be of a better quality and allow for more active exploration of issues and views as the study progressed.

The current study has identified a number of areas that warrant further investigation and research. These include the accessibility and effectiveness of family dispute resolution services for Indigenous people prior to the commencement of court proceedings. The findings of the current study suggest that at the moment there may be significant issues about accessibility and effectiveness of service delivery in this area.

A further area of investigation is that of judicial perspectives upon Indigenous cultural issues and how these perspectives are applied in determining a child’s best interests. The concerns raised by Indigenous litigants and practitioners suggest that this is an area that needs to be further addressed due to concerns about the Court’s ability to effectively deal with issues relating to the cultural needs of Indigenous children. A similar investigation could also be conducted into the views and practices of family report writers in preparing family reports in such matters.

Another area of study suggested by the current research is the sustainability and viability of orders made by the Court over time. In light of the financial and emotional costs of going to court and the substantial investment of resources in this area it is important to understand the outcome of court proceedings and the extent to which judicial determinations actually promote the best interests of children and/or assist families to manage their parenting responsibilities into the future. Given the number of matters in this study that expressed concern about the working of court orders, and issues around compliance with agreements reached in court, this would seem to be an area that warrants further investigation.

The Way Forward

The aim of this study has been to investigate the views and experience of Indigenous litigants in the family court system and, in particular, to examine issues of access to justice in this area. The data upon which this study is based is a mix of questionnaires, interviews and consultation with stakeholders in this area. The following comments based upon this data are provided with the intent of identifying the way forward to improving access to justice for Indigenous families.

Early Intervention and Family Dispute Resolution

Litigation within the family court system should be the option of last resort in dealing with family law issues. Acceptance of this statement clearly focuses attention upon early intervention and family support services, particularly family dispute resolution services. An evaluation of Indigenous peoples’ experiences of family dispute resolution is a task that has been beyond the scope of the current study. However, the data that has been obtained in relation to pre-filing dispute resolution suggests that Indigenous people’s access to such services may be problematic.

The data obtained in this study suggests that Indigenous litigants tend not to utilise the services of family dispute resolution services as provided by FRCs. The experiences of those who have used pre-filing dispute resolution services (including legal aid conferencing) tends to be somewhat negative with more Indigenous litigants expressing dissatisfaction with such services than actual satisfaction. This may in part be related to the fact that such services have not been able to assist these litigants in resolving their disputes. Information is generally lacking regarding the extent to which the reported level of dissatisfaction is attributable to poor service provision, or poor outcomes, or a combination of both.

The under utilisation of family dispute resolution services by Indigenous people is a significant concern that has been noted previously in a number of reports. The report of the National Alternative Dispute Resolution Advisory Council (2006) notes ~

'Evaluations of mainstream dispute resolution services have shown that Indigenous people avoid such services, especially where they do not engage Indigenous professional or liaison staff.x

The NADRAC report of 2006 which focused upon Indigenous dispute resolution and conflict management was prepared prior to the national roll-out of FRCs and the emphasis upon community-based family dispute resolution services as the first line of defence in dealing with family law disputes.

To date there has been no evaluation of the extent to which Indigenous families access such services, or whether such services are effective in responding to the needs of these families. There is, however, evidence to suggest that these services continue to be under-utilised. For example, the recent submission provided by Family Relationship Services Australia (FRSA) to the Family Law Council on Indigenous access to the family law system provides the following information ~

'Family Dispute Resolution (FDR) has a relatively low rate of usage by people who identify as Aboriginal or Torres Strait Islander (1.8 per cent). A possible explanation for this is that many families and communities in which Aboriginal or Torres Strait Islander culture is strong there are traditional dispute resolution processes managed by community leaders or elders.’xi

The latter comment is not supported in the report by reference to any evidence but stands as a general statement based on supposition. It must also be considered in the light of the findings of the NADRAC report of 2006 that noted the following ~

'European colonization has meant the imposition of a new and alien set of laws and systems, the dislocation of people, the consequent breakdown of social structures, and the introduction of a set of previously unknown issues. Key people who are able to resolve a dispute may be absent or incapacitated and traditional structures may not be well equipped to deal with western problems, such as alcohol abuse. Weakened traditional processes are being confronted by new problems outside past experience.’xii

An equally (if not more) plausible explanation for the lack of utilisation of dispute resolution services is that such services are not accessible or culturally appropriate in responding to the needs of Indigenous people. These services are in most instances provided by non-Indigenous agencies, many of which are faith-based and many of which do not employ Indigenous staff, particularly Indigenous dispute resolution practitioners. The FRSA submission to the Family Law Council also mentions ~

'A critical undersupply of suitably qualified Indigenous practitioners - for example, FRCs report difficulty in recruiting Indigenous liaison workers with some positions vacant for extended periods of time.’xiii

In considering possible improvements that might address issues associated with Indigenous access to family dispute resolution services it is perhaps useful to re-examine the recommendations of the 2006 NADRAC report. In relation to FRCs the report recommended ~

2.1 That Indigenous organisations should be encouraged to seek contracts to operate the proposed Family Relationship Centres, particularly where they provide services to Indigenous communities.

2.2 That, for each area of service, an appropriate number of employees in Family Relationship Centres have a demonstrated capacity to provide culturally appropriate services to Indigenous people.

2.3 That Indigenous advisers implement the Indigenous outreach services proposed as part of the system of Family Relationship Centres.

2.4 That the resources to fund the outreach work of the Indigenous advisers match the need for face-to-face assistance in regional and remote communities, including networking and support services.xiv

It remains unclear whether these recommendations have been implemented to any significant extent, or whether they have had any influence in shaping policy and practice in this area. It is clear though that these recommendations are founded on a belief that there should be more input from Indigenous communities and people into service delivery than appears to have been the case so far. The recommendations also appear to envision a far more active role for Indigenous advisors, with resource provision commensurate with the task of providing outreach services. This also appears to have not been the case to date.

The point to be made here is that there is currently little information available that can be reliably used to assess the issues associated with Indigenous people’s access to family dispute resolution services. There has been no evaluation of the impact of giving responsibility for Indigenous family dispute resolution to non-Indigenous community-based agencies, or the extent to which such agencies have been able to provide culturally-appropriate and/or effective services to Indigenous families. In light of the lack of data in this area, it is not possible to conclude one way or the other that Indigenous people are able to access effective family dispute resolution services. Given the importance of such services in reducing the prospect of Indigenous people becoming involved in family law litigation, and the crucial role these services play in the family law system, it is of the utmost importance that such services are demonstrably effective in providing dispute resolution services.

Due to the limited scope of the current study it is not possible to offer a reliable view of the effectiveness or appropriateness of family dispute resolution services that are currently available to Indigenous people. The study however does suggest that further investigation in this area is urgently required to ensure that family law litigation is actually the last resort for Indigenous families and that these families have every opportunity to access effective dispute resolution services.

Recommendations

Recommendation 1: Family Dispute Resolution Services

It is recommended that an evaluation be undertaken of the accessibility of family dispute resolution services to Aboriginal and Torres Strait Islander families, with a focus on the effectiveness and appropriateness of services as they are currently delivered to Indigenous families.

Information Systems and Data Quality

An understanding of Indigenous people’s access to the family court system requires information and recording systems that allow for the efficient identification and tracking of matters involving Indigenous litigants. The current study has identified problems with data quality in the courts’ Casetrack system that confounds the understanding of Indigenous people’s usage of the courts and the progress of these matters through court. The likelihood is that Indigenous people are under-represented in family court statistics derived from the Casetrack system.

There are a number of factors underlying the under-recording of Indigenous status. First, the identification of Indigenous status is an optional field on court forms and practitioners and paralegals completing such forms may choose not to identify their client as Indigenous, or may not be aware that the client is Indigenous. Second, court staff have historically been reluctant to ask clients who are filing documents about Indigenous status, often due to the negativity of non-Indigenous clients who resent being asked the question. Third, even when Indigenous status is known, Casetrack files are not always updated to reflect Indigenous status. It was found, for example, that when staff in two registries were asked to identify known Indigenous clients, only half of these were correctly identified as Indigenous in Casetrack. It was also found that several clients were incorrectly identified as Indigenous when they were not, seemingly due to their ethnic background.

It should be noted that the issue of identifying and recording Indigenous status is one that is common to the broader family law system. NADRAC (2006), for example, cited a number of problems in collecting data from Indigenous families including literacy issues, complexities arising from the number of people involved in disputes and a lack of experience on the part of Indigenous people in providing both quantitative and qualitative feedback data. NADRAC concluded that ~

'Policy makers and service providers should not be reliant on conventional evaluation and data collection methods and may need to develop new indicators and evaluation methods.’xv

This issue is also identified in the submission of Family Relationship Services Australia to the Family Law Council on Indigenous people’s access to the family law system. The submission notes significant issues in recording and evaluation of data and emphasises that ~

'More work needs to be done to better measure the inputs, outputs and outcomes of the services provided to Aboriginal and Torres Strait Islander families and communities.’xvi

In the context of the family court system there are a number of measures that can be taken to improve data quality and the identification and recording of Indigenous status. These include an enhancement of Casetrack to include in the 'ATSI’ field the marker 'unknown’ for those matters were Indigenous status is not indicated one way or the other in documents filed. A practice direction to all registrars and family consultants to enquire about Indigenous status, particularly if Indigenous status has been entered as 'unknown would also assist in positively identifying such matters. The expectation attached to this would be that registrars and family consultants would update Casetrack files on having determined Indigenous status. By this means it would also be expected that by the time matters were finalised - either by judicial decision or consent orders - that Indigenous status would be clearly known and that no matter would pass through the court system with Indigenous status marked as 'unknown’.

A recent initiative undertaken by the courts to assess client satisfaction also holds the potential to provide very useful data on Indigenous people’s access to the courts. In this initiative a survey of court users was conducted in which people were interviewed while on court premises. As previously noted three per cent of those surveyed at the time were Indigenous. As part of any such future survey an inquiry as to the willingness of these Indigenous clients to be re-interviewed in say six months would offer the potential to gather a more accurate and detailed understanding of Indigenous people’s usage of the courts. Such an approach would clearly need to provide firm assurances to Indigenous clients about privacy and confidentiality and allay any concerns that information provided might form part of the court record.

A further approach to gaining a better understanding of Indigenous people’s experience of, and usage of the court system would be to conduct 'exit interviews’ in all Indigenous matters at say three months, six months and 12 months after these matters have been finalised. Such a strategy is likely to provide a more comprehensive understanding of Indigenous views and experiences than the current study has been able to provide. It also holds the potential to provide a much larger sample of participants than it has been possible to obtain through a retrospective search of Casetrack records.

In the absence of such studies it is not possible to conclude one way or the other that Indigenous people have fair and reasonable access to the family court system in seeking a decision from the Court. There is, however, a long-standing, widespread acknowledgement across all sectors of the legal system that cultural factors and socio-economic disadvantage are barriers to accessing justice within the Australian legal system and that these are barriers that confront Indigenous people across all jurisdictions. In light of this it is important for the family courts to continue to evaluate service delivery and to undertake a process of continuous improvement if the Australian community, and Aboriginal and Torres Strait Islander people in particular, are to have confidence in the ability of the courts to deliver just and fair outcomes.

Recommendation 2: Information Systems and Data Collection

It is recommended -

2.1 That the Casetrack system be enhanced to allow for the recording of Indigenous status as 'unknown’ and that it be mandatory for the field of Indigenous status to be completed in entering data into Casetrack.

2.2 That all family consultants and registrars be directed to inquire into the Indigenous status of all clients on the first occasion of contact when Indigenous status is marked 'unknown’ in Casetrack and that they then be responsible for amending the Casetrack record.

2.3 That the Family Law Courts consider conducting court user surveys every two years and that the survey be enhanced to promote and facilitate follow-up with Indigenous clients as part of an ongoing process of continuous improvement directed to facilitating access to justice for Indigenous families.

A Coordinated Registry-Based Team Approach

A common theme that emerged from discussion with focus group participants and family law practitioners was the need to acknowledge that Indigenous families often require a level of assistance and support beyond that which was required of non-Indigenous litigants. This was viewed by many as an essential part of ensuring that court services were accessible and that proceedings were fair and responsive to the needs of Indigenous families. The historical experience of Indigenous people in dealing with the legal system, the well-known barriers they confront in seeking access to justice and chronic levels of socio-economic disadvantage were cited by many to suggest that such cases be specially managed by the Court.

In discussion of this proposal it was widely suggested that Indigenous matters should be managed by a specialised team of court staff in each registry comprising judges/magistrates, registrars, family consultants and client service officers who have the skills, knowledge, training and commitment to working with Indigenous families. It was commonly noted in discussion with practitioners that the quality of the Court’s management of Indigenous cases, and its level of responsiveness to the specific needs of Indigenous families, was highly variable and largely dependent upon the specific qualities of the judge or magistrate or family consultant who happened (by chance) to be involved in the case.

The proposal generated from this discussion calls for the identification and nomination of staff in each registry who have the interest and commitment to working with Indigenous families and communities. These staff would form registry-based teams that would be responsible for liaison with Indigenous litigants and the management of their cases as they proceeded through court from the time of filing of documents to the determination of these cases. This would allow for specifically targeted training to be provided to members of these teams and for members to be given the opportunity to undertake community liaison and engagement with their local Indigenous community. Ideally, this would improve the level of expertise available within the courts in responding to the needs of Indigenous families and forge closer links between the courts and local Indigenous communities. This would in turn promote a degree of confidence amongst Indigenous people that the courts were able to effectively address their issues and provide culturally appropriate services.

In the past efforts to address the needs of Indigenous families on the part of the family courts have assumed that all staff should be able and willing to work in a culturally appropriate and sensitive manner in matters involving Indigenous people. While in principle this should be the case, in practice it has often led to staff being under-equipped in dealing with the issues that Indigenous people bring to the courts. It should also be recognised that due to the diversity of the court’s staff - including personal attitudes, cultural background and/or past experiences - that all court staff are not equally suited by attitude or temperament to the role of working with Indigenous people and communities.

The formation of registry-based teams holds the promise of bringing together individuals who have the interest, commitment and personal attributes to be able to work in what can be a challenging and complex area of work. It is a proposal that would effectively deal with the concerns that have been expressed by participants in this study regarding the variable quality of family reports and the assessment of Indigenous cultural issues.

At the moment there appears to be little consideration given in the allocation of family reports to having reports prepared by family consultants who have demonstrable expertise in working with Indigenous families when such reports are required. According to the current proposal such reports would be routinely allocated to family consultants who have had training in working with Indigenous families and in the assessment of Indigenous cultural issues. The expertise of these consultants would be enhanced and developed over time through the provision of relevant professional development opportunities.

A further consideration relating to this proposal is the acknowledgement that most Indigenous cases involve a non-Indigenous party and that this party may form an impression that the Court is biased towards the Indigenous party as a result of the matter being viewed as one that needs special management. The non-Indigenous party could argue, for example, that the children are 'half-white’ and that the issue of the children’s indigenous culture is not an important or significant issue and that as such the matter should be dealt with like any other matter coming before the courts. This is an issue that a registrar would need to consider in determining how the matter proceeds through court and whether the matter should be one that requires special management. It is the type of issue that registrars would need some training and guidance upon in weighing up the competing submissions that might be put forward by the parties.

In reference to this issue it is also perhaps pertinent to consider that even if a matter is deemed to be one that requires special management that the matter will, in the vast majority of cases, be managed, assessed and determined by non-Indigenous people. From the perspective of the Indigenous litigant this might not be seen as particularly 'special’ but just a reminder that their matter is still going to be decided by a mainstream legal system that is dominated by non-Indigenous Anglo-Australian perspectives at all levels.

As noted this proposal has strong support amongst practitioners and agency representatives, and Indigenous litigants and is one that warrants further investigation as a means of promoting access to justice for Indigenous people. It is a proposal that can be implemented with relative ease and one that does not require significant additional resources beyond those that might be invested in training and professional development.

Recommendation 3: A Coordinated Registry-Based Team Approach to Managing and Determining Indigenous Cases

It is recommended that the courts adopt a coordinated, registry-based team approach to managing and determining Indigenous cases using judges, magistrates, registrars, family consultants and client service officers who through ongoing professional development are encouraged and supported in developing expertise in working with Indigenous families

Judicial Education and Training

A highly important factor in promoting access to justice for Indigenous people is a judiciary that is culturally competent, particularly in its understanding of Aboriginal and Torres Strait Islander families, child-rearing practices and kinship and the central place that cultural identity and affiliation plays in the life of Indigenous people. The findings of the current study tended to suggest that Indigenous litigants do not perceive judicial officers as impartial or unbiased. These litigants also tended to view judicial officers as lacking to some extent an understanding of their concerns about Aboriginal culture and its importance for their children.

In light of these findings it is important for judicial officers to have an understanding of cultural issues relevant to the determination of the best interests of Aboriginal children and particularly an understanding of how to interpret and apply the specific provisions of the Family Law Act relating to the cultural needs of Indigenous children. One Indigenous litigant, for example, noted that her appreciation of the court process would have been markedly improved by a simple statement of recognition from the presiding judge at the commencement of proceedings that the subject children were in fact Aboriginal. For this litigant, and probably many others, such a statement pays due respect to the issue of Aboriginality and openly identifies the child’s Indigenous culture as one factor (amongst others) that is a consideration for the Court in determining the child’s best interests.

Judicial education is an important means of ensuring that judges and magistrates are properly equipped to deal with the diverse range of people and issues that are encountered in court on a day to day basis. In the considering the needs of Indigenous families the completion of such training serves to promote confidence in the judicial system within the Indigenous community, and provides some assurance to litigants, practitioners and others that the courts are able to effectively dealing with matters concerning Indigenous children and their needs and interests.

In considering the way forward it is preferable that training be provided to a limited number of nominated judges and magistrates in each registry who would then regularly manage and determine Indigenous cases allocated to them through the docket system that is utilised in the Family Law Courts. Such a targeted approach to training holds the promise of ensuring that training is relevant, personalised and effective and minimises the costs that would otherwise be involved in providing more generalised training to all judges and magistrates.

The provision of cultural competency training to a pool of nominated judges and magistrates is consistent with the recommended registry-based team approach to managing and determining Indigenous cases that is described previously in this section. In the event that for whatever reason this team approach is not implemented, then cultural competency training should still be provided to nominated judges and magistrates with the expectation that these individuals will be routinely allocated Indigenous matters due to their experience and training in dealing with such cases.

Recommendation 4: Judicial Education and Training

It is recommended that a limited number of judicial officers be nominated in each registry to undertake Indigenous cultural competency training with the expectation that these officers will be routinely allocated Indigenous cases in the future

Training for Family Consultants

A consistent finding to emerge from the current study has been the concern held by litigants and practitioners in relation to the quality of family reports, particularly the assessment of Indigenous cultural issues. Family reports have a highly influential part to play in the courts’ decision making processes. They often have a strong influence on the views of judges and magistrates and are often instrumental in shaping judicial thinking and the determination of cases. They also have a highly influential role in the resolution of matters and are used to facilitate negotiation and settlement, and in many instances they determine whether legal aid will be provided for a matter to proceed to trial. In light of this it is of the utmost importance that family reports be of the highest professional standard and that all of the relevant issues be duly considered and assessed. It appears though that from the reports of Indigenous litigants and practitioners that family consultants are possibly not well equipped to undertake a comprehensive assessment of cultural issues as they relate to the best interests of Indigenous children.

The current study does not differentiate between court-based family consultants and external Regulation 7 family consultants, so unfortunately it has not been possible to clearly identify whether this skill/knowledge deficit pertains to one group, or the other, or both. It is evident though that in allocating a family report to a family consultant it is essential that every effort be made in matters involving Indigenous children to ensure that the family consultant genuinely has the necessary expertise to be able to undertake such an assessment.

One means of addressing this skill/knowledge deficit is to provide training to all family consultants (both court-based and external) on working with Indigenous families and the assessment of Indigenous cultural issues. However, as noted above in relation to judicial education, it is likely to be more effective and more affordable to nominate and target a limited number of family consultants in each registry and to ensure that after the completion of training family reports involving Indigenous matters are routinely allocated to these individuals. As also noted above it would be preferable for these family consultants to work with other trained staff - including judicial officers and client service officers - as part of a coordinated registry-based team approach to working with Indigenous families.

Recommendation 5: Training and Professional Development of Family Consultants

It is recommended that a limited number of family consultants be nominated in each registry to undertake Indigenous cultural competency training with the expectation that these consultants will be routinely allocated Indigenous cases in the future.

Court Support for Indigenous Families

A common theme that emerged from discussion with Indigenous litigants, practitioners and focus group participants was the absence of appropriate support for Indigenous families in negotiating the 'maze’ of litigation through the Courts. Many participants mentioned the role previously played by the Court’s Indigenous Family Liaison Officers in supporting not only Indigenous litigants and their families, but also court staff in providing a service to Indigenous people. Not surprisingly many called for the restoration of these positions within the Court as a means of addressing this perceived gap in service delivery. Support for this position is also to be found in the NADRAC 2006 report that recommends ~

'That the number of Indigenous family consultants in the Family Court of Australia be sufficient to provide adequate support for those cases which proceed to court.’xvii

There is ample evidence to support the success of this program during the period of its operation from 1996-2008. However, the overall environment in which this program operated has changed significantly since 2008 and the program itself was not without its difficulties, nor immune to criticism from the Indigenous community.

The primary role of Indigenous Family Liaison Officers was to assist in providing voluntary mediation and community education to Indigenous clients and communities. These roles, however, no longer fall within the province of the Family Law Courts and dispute resolution is now provided at a community level through FRCs and community education is undertaken through Indigenous advisors, as well as some legal aid agencies. Hence, the role previously played by Indigenous liaison officers in the family courts has been subsumed by others as a result of the decision made by government to transfer responsibility for these services to community based agencies.

As noted above, however, in the 2006 NADRAC report there is still a need to provide adequate support for Indigenous cases that proceed to court. NADRAC recommended that the Family Court of Australia retain a sufficient number of its Indigenous liaison officers to provide this support to Indigenous clients. In considering this recommendation it is necessary to bear in mind that matters involving Indigenous litigants represent a small percentage of matters coming before the courts and are distributed over a very large geographical area. Indigenous clients are also a very diverse group of litigants and their needs for court support are highly variable.

A proposal to employ Indigenous liaison officers, for example, in the Darwin registry of the Courts it is unlikely to be effective in meeting the needs of Indigenous litigants in other locations in a timely, efficient or affordable manner. The number of Indigenous matters proceeding to court in the Northern Territory is insufficient to warrant the employment of a full-time Indigenous liaison officer in this location. The appointment of one Indigenous liaison officer in a court registry is not a sustainable model of service delivery due to their need for the close support that is provided by an Indigenous co-worker. The success of the original program in part rested on the practice of using a male and female liaison officer working together as a gender-balanced team.

It has also been demonstrated from past experience that it is extremely difficult to retain casual and/or part-time Indigenous liaison officers as they frequently move on to full-time employment with other agencies when positions become available. Part-time or casual employees are also often not available at times when their assistance is required by either the Court or Indigenous clients. This, however, is the current model adopted by the Courts, though it appears that casual or part-time liaison officers are rarely engaged to provide court support to Indigenous clients. The exception to this is perhaps Townsville registry that occasionally engages the services of a former Indigenous Family Liaison Officer to assist in working with Indigenous families.

A common criticism of the Court’s former Indigenous liaison officer program was the fact that court support was not available from locally-based Indigenous liaison officers. In one case an Indigenous liaison officer from the Northern Territory was strongly criticised by Indigenous clients for their involvement in a matter concerning Aboriginal families in Victoria, arguing that such support needed to be provided by members of their own community. The need for locally-based court support was raised on many occasions during the life of the Indigenous liaison officer program but was an issue that was never adequately addressed. The repeated call to employ Indigenous Family Liaison Officers at a local level in all registries of the Court has been, and continues to be, a proposal that is extremely difficult to justify in terms of the volume of the workload and the costs involved.

In considering how court support can be best provided to Indigenous litigants a fundamental principle is that court support needs to be provided at a local level by respected local Indigenous community members. It is also essential to acknowledge that an effective employee support structure is required for liaison officers to promote the sustainable employment of liaison officers. These requirements are most likely to be achieved through a program in which Indigenous liaison officers are employed within local Indigenous agencies and have access to the support and facilities that such agencies are able to provide. Although these officers would be based in Indigenous community agencies, their primary responsibility would be to work with Indigenous families involved in family court proceedings and to assist these families and court staff in working with these families.

It would be preferable that these court liaison positions be full-time positions but provide for liaison officers to undertake other work in their sponsoring agency consistent with the core business of that agency. However, the first and foremost obligation of these liaison officers would be to provide court support to Indigenous families and the Family Law Courts. These duties would take precedence over any other duties performed for the sponsoring agency.

In practice, and by way of example, an Indigenous agency such as an Aboriginal Family Violence Prevention Legal Service, could apply to the Commonwealth Government for funding to employ an Aboriginal Family Court Liaison Officer. This position could be established in the agency as two half-time positions that could be merged with an existing position to allow two full-time employees (preferably a male and female) to provide court support to Indigenous litigants in family law proceedings. When not engaged in the work of the family courts, these officers would participate in the day to day work of their agency such as client service duties and community education. These positions would work closely with the registry-based teams described earlier in this section, and would provide close support to family consultants, registrars and client service officers in their dealings with Indigenous families. They would play a role in community education and liaison on behalf of the courts and would be promoted as the first point of contact for Indigenous people accessing the family law system in locations where Indigenous advisors are not available.

Although it would be preferable for these positions to be based in local Indigenous agencies, non-Indigenous agencies with a demonstrated history of working with Indigenous communities and employing Indigenous staff might also be considered as eligible to apply for funding for these positions.

The benefits of such a program are noted as follows:

  • it operates at a local registry level and promotes accessibility
  • it meets the needs of the family courts for timely access to Indigenous liaison officers
  • it closes the existing gap in the provision of effective and timely court support for Indigenous litigants
  • it complements the proposal for court-based teams specialised in working with Indigenous families
  • it provides effective, culturally-appropriate employee support for Indigenous staff
  • it provides an effective link between the courts and the Indigenous community and promotes community confidence through education and liaison; and
  • it builds capacity in Indigenous agencies to work within the domain of family law.

For these reasons it is recommended that the viability of such a program be further explored in consultation involving government and non-government agencies, the Courts, and the Indigenous community and their representative bodies.

Recommendation 6: The Development and Establishment of Court Support for Indigenous Families

It is recommended that the Commonwealth Attorney-General’s Department investigate through consultation with all relevant stakeholders the establishment and funding of a viable and sustainable program of court support for Indigenous families involved in family law litigation.

Conclusion

The research described herein is the first systematic attempt to assess the views and experiences of Indigenous litigants involved in family law proceedings. It has been undertaken with a view to examining issues relating to Indigenous people’s access to justice in the area of family law and to consider means by which access might be improved.

The undertaking of this research has encountered a number of methodological and conceptual problems that in some instances confound the interpretation of the results and invoke caution in the interpretation of the findings. However, the findings of this study suggest that there are some significant areas of the family court system, and the broader family law system, where difficulties are very likely to be encountered by Indigenous people.

In some ways the findings of this research raise more questions than they actually answer and in doing so it highlights the need for ongoing investigation and evaluation of a number of specific matters. This includes issues associated with Indigenous people’s access to family dispute resolution services, the nature of agreements reached in court and the sustainability of court orders, as well as the ongoing monitoring and evaluation of the experiences and views of Indigenous litigants as part of a process of continuous improvement in service delivery.

Bibliography

Coffin, J., Ngaypa Muwarr: Stories from Aboriginal Health Workers involved in Sexual health Work, Department of Health, WA, 2002

Cuneen, C., and Schwartz, M., Civil and Family Law Needs of Indigenous People in NSW, UNSW Law Journal, Volume 32(3), 2009, p744

Family Relationship Services Australia, Submission to the Family Law Council: The Delivery of Family and Relationship Services to families from Aboriginal and Torres Strait Islander heritage and their communities, June 2011

Federal Civil Justice System Strategy Paper, Australian Government, Attorney General's Department, December 2003, AGPS

Moore , D.L., and Tarnai, J. (2002) Evaluating non-response error in mail surveys. In Groves , R.M., Dillman, D.A., Eltinge, J.L., and Little, R.J.A., (eds) Survey Non-Response, John Wiley and Sons, New York , pp197-211

Nicholson, A., Ethnicity, Aboriginality and Family Law, 9th Sir Leo Cussen Memorial Lecture, November 1995

Report of the Family Law Pathways Advisory Group, Out of the Maze: Pathways to the future for families experiencing separation, July 2001, AGPS

The National Alternative Dispute Resolution Advisory Council (NADRAC), Indigenous Dispute Resolution and Conflict Management, January 2006, AGPS

The Senate Legal and Constitutional Affairs Reference Committee, Access to Justice, December 2009, AGPS

www.peoplepulse.com.au/Survey-Response-Rates.htm

APPENDIX 1 - List of recommendations

Recommendation 1: Family dispute resolution services

It is recommended that an evaluation be undertaken of the accessibility of family dispute resolution services to Aboriginal and Torres Strait Islander families, with a focus on the effectiveness and appropriateness of services as they are currently delivered to Indigenous families.

Recommendation 2: Information systems and data collection

It is recommended ~

2.1 That the courts' Casetrack system be enhanced to allow for the recording of Indigenous status as 'unknown' and that it be mandatory for the field of Indigenous status to be completed in entering data into Casetrack.

2.2 That all family consultants and registrars be directed to inquire into the Indigenous status of all clients on the first occasion of contact when Indigenous status is marked 'unknown' in Casetrack, and that they then be responsible for amending the Casetrack record accordingly.

2.3 That the Family Law Courts consider conducting court user surveys every two years, and that the survey be enhanced to promote and facilitate follow-up with Indigenous clients as part of an ongoing process of continuous improvement directed to facilitating.

Recommendation 3: A coordinated registry-based team approach to managing and determining Indigenous cases

It is recommended that the courts adopt a coordinated, registry-based team approach to managing and determining Indigenous cases using judges, magistrates, registrars, family consultants and client service officers who through ongoing professional development are encouraged and supported in developing expertise in working with Indigenous families.

Recommendation 4: Judicial education and training

It is recommended that a limited number of judicial officers be nominated in each registry to undertake Indigenous cultural competency training with the expectation that these officers will be routinely allocated Indigenous cases in the future.

Recommendation 5: Training and professional development of family consultants

It is recommended that a limited number of family consultants be nominated in each registry to undertake Indigenous cultural competency training with the expectation that these consultants will be routinely allocated Indigenous cases in the future.

Recommendation 6: The development and establishment of court support for Indigenous families

It is recommended that the Commonwealth Attorney-General's Department investigate through consultation with all relevant stakeholders the establishment and funding of a viable and sustainable program of court support for Indigenous families involved in family law litigation.

APPENDIX 2 - Indigenous litigant comments

Question 42:Are there any changes the Court could make to improve its services for Aboriginal and/or Torres Strait Islander families when they are going to court?

  • Make the system and processes easier to understand
  • Have an Aboriginal andTorres StraitIslandliaison officer available
  • Try in some way not to make the whole court situation as daunting and fearful as was my experience
  • Try and resolve issues sooner rather than latter, there is nothing worse than a long drawn out battle
  • Have a Nunga person at all times attending court.
  • No, they steal our kids away like the stolen generation, if you can’t see that you’re blind because it’s been happening for years and is still going. The family court and I will say it again its run by women. The judge is a woman, the lawyers are women and the court pointed writer is a woman. Say no more if you can’t see it you are blind. To respect indigenous men who have been then Aboriginal law should have a male lawyer to make it fairer.
  • How about the judge. I got yelled at for not being in the child’s life when I didn’t know if the child was mine or where the child was living. The judge accused me of the sexual abuse to only be corrected by another member of the court. I got yelled at and treated with less rights than an illegal immigrant fromFijiwho works as an illegal prostitute and a con artist thief. The court can’t even enforce the mother to stick to the agreement.
  • Writing as a proud indigenous father I’d like the court to actually listen to both parties, because going through family law proceedings is damaging, because of what the other or anyone at that has lied to make them feel good e.g. Incriminate, lie, and their solicitors die to make it happen, is not fair for anyone who goes through the family law proceedings.
  • Yes! Not believe people who claim to be indigenous without proof and learn more about our culture and how much it means to us!!!!!
  • Should be aboriginal court mentor liaison advisors to assist and help you through the process. Especially when it’s the first time in the situation as a Grandparent not transparent enough clarity on communication or trust. Family Consultant Interviewers, I question their positions as bias not transparent, no clarity. Getting it wrong arrogant and shallow. Academic no real understanding of aboriginal people, culture and connection to country. Need a panel like aboriginal court process.
  • Not have racist people doing the family reports …
  • In my case, the court focused more on the best person to take care of the child they didn’t focus too much on the cultural side of things, where as I feel that the courts could focus more on the child’s culture, I feel in some cases it would be hard when some children have a few different cultures where as in my grand child’s case.
  • Have an independent indigenous advocate available in the courts to assist in the processes. It would be great support.
  • I believe the court came to the correct decision in my case and I am very satisfied with the outcome.
  • I think if they had more staff that had an understanding of cultural differences.
  • Yes, people need information that is given in SIMPLE terms, so we can understand what is happening or can happen. No legal jargon. More ATSI court attendants.
  • I was not even asked any questions relating to cultural issues.
  • I guess because I am what you would call a 'fair skinned black fella’, it would be nice tohave support without having to prove or point out that I am indigenous. No real support or acknowledgment was made which made my experience somewhat more stressful. Family report was already decided and I felt going to see the same person twice for the same outcome was a poor effort. Nothing changed even though I had evidence of my son’s abuse. Doctors, police etc. palmed it off as a 'Family Court issue’ and sent him right back.
  • Fairness towards males and cultural background of people.
  • Hear direct from clients, what they think in their own words and never take the statement direct from the other party with the other one’s attending court.
  • Respect aboriginal families
  • Understanding
  • More information
  • More support
  • Financial support
  • Children’s rights!
  • And I just hope the whole thing of Family Law Courts change for all the Aboriginal and Torres Strait Islander families!!!
  • I was very satisfied with the court’s response to cultural issues relating to my case. The Court’s need to understand that in indigenous culture female (and male) children remain in the care of their mothers or grandmothers when the parents separate. The reason being for safety, nurturing and other maternal qualities that children require to fully develop into a confident secure adult. It is the mother’s place, position and role to raise children. Men are not part of this, particularly with female children, up until a certain age.
  • Make it a level playing field for all. Don’t believe everything that is said without evidence.
  • The hardest part about going to court was going without a solicitor because other party hadAboriginal Legal Service so I couldn’t be represented. So therefore no one would listen to my say.
  • There are always ways to improve. Never stop

Question 43: If you knew someone who was in a situation similar to yours - that is, having a major fight with someone about children following divorce or family breakdown - what advice would you give to them?

  • It would depend on whether or not if they were good parents or not. If they where I would tell them to see legal aid as soon as possible for legal help.
  • To use the same procedures as our family did. Because, it was useful.
  • Seek legal advice before you leave so you know your options
  • Try to have some legal representation in place prior to 1st hearing. Legal Aide is not available automatically just because your aboriginal
  • Beware of your options don't believe that just because the other parties lawyer says so that that is the way it is
  • Ask lots of questions so you are aware of all your rights
  • Have everything put in the consent orders done to dates and times. My experience has been that my de-facto said he would be flexible with visitation, not the case.
  • Don't give up because the white man made the laws to suit the white man.
  • I've always said the law made from the white man for the white man only!!!
  • Fight but you will lose, just fight to show your kids that you have them by fighting and that the court is not on your side because it's run by woman and he will hear that story over and over so I say it again are you blind?
  • Get a good a lawyer and hang in there. The legal representation I had in my case weren't interested in helping me. Every time I had a court date I had different representation. I felt it was difficult to explain myself to anybody. One court date my solicitor from Legal Aid didn't turn up with any paper work and we had to adjourn for a later date at which we were than mislead by the other legal team to getting another adjournment, they proceeded instead and Legal Aid had nothing prepared. It was very unorganized and stressful time of my life.
  • FORGET ABOUT IT!
  • Follow the process and be patient. The court is slow because of the number of cases
  • Make sure your affidavit covers everything you want to say. You can only go on what is in the affidavit and requested orders.
  • Be prepared to compromise even if just a little. A negotiated settlement with orders is cheaper, quicker and raises less tension between the parties (mostly).
  • There no consequence for the party that doesn't comply with court orders. Unless you have bucket loads of money to continually go back to court. The orders are not worth the paper they are written on.
  • The advice I would give them is that 'separation/ divorce may end the time together but it does not end the family, your kids happiness is what comes first'.
  • If they have children and the children stay over keep them and make the other party fight through court to see them as this way they will at least know the children and be able to keep them safe! I have not spent time with my sons in 4 years now and it rips my heart out.
  • Don't go! Family Law Courts in crisis is flawed, appalling and disturbing. No Trust. No confidence in the system on Legal Aid and money making courts.
  • Consultant interviewers bias/shallow, arrogant, incompetent and unprofessional academic attitudes. Need to seriously step up and improve especially when children are involved. Disturbing.
  • Legal Aid, Judge and Jury - It's all about the money. Before, you even get to court a process that stops you when people tell vicious lies in the consultant interview rooms. Disturbing, appalling situation overall. In general, you need to be a strong person. Focused and aware, know the court processes, judge when matters are out of your control; not happy!
  • Stick to it, don't give up.
  • Not take it to court. I found that with the Family Law Court it's what you own and how much money you have. The system is made by a white man for the white man!
  • Do it through the courts and mediation, don't use your children as weapons against the other party and make sure you understand what is being put in place before you agree to and sign anything. If unsure have someone go with you.
  • I would tell them to try and compromise with one another, try and work care arrangement between each other, before taking it to court. Then again if it's a situation where you just can't compromise, then make sure you get good support. Be strong, and do your home work because you might have a fight ahead of you which will cause a lot of stress, anger, confusion, frustration, fear and if things go your way. Relief, but communicate with the other party, it is really important, because its all for the child's best interest. Also get plenty of advice on this situation.
  • Seek legal advice.
  • Try to resolve the situation before going to court if at all possible. Very stressful. Mentally and emotionally draining. Nerves, anxiety, stress, depression
  • I would always recommend orders from the court be put into place before things get out of hand! But, if there was a Koori mediation organisation to mediate between the parties while orders were being processed, it would be much more help and less stressful.
  • Go and get Legal Aid advice and work out your best options. At least when the court makes a decision it is legal. No better way to do things.
  • To get as much information and support as possible due to the family law process can be hard to decipher.
  • Make them talk to you often.
  • Always talk to your legal representative. Make them explain the process to you in simple terms as the court doesn't.
  • Ask questions. Read all your letters. Get your legal representative to explain it to you. Never give up.
  • ATSI Legal Services should have more Family Law solicitors.
  • Join a support group if you can family counsellors.
  • The Family Law process takes so long to finalize- shorter periods between court hearings.
  • ATSI- cultural awareness training for non-indigenous people should be mandatory.
  • Apply to Family Court and seek legal advice to make a solid and stable plan for your child.
  • Continue to find the right solicitor, you are comfortable with - someone who is honest and supportive of you and who will actually does their job properly without making you feel like a charity case or insignificant because you cannot afford legal help without legal aid. Access every avenue of support or community service without fear of being judged or losing your kids, mental health issues need to be addressed, but you are not alone and you will only get through it with as much support and understanding as possible. I learned this the hard way. Help is out there and you will get through it.
  • My advice would be to see an expert who deals with people of Aboriginal or Torres Strait Islander descent who specializes in these areas.
  • Stay strong and hold it together, because it will be reached (outcome), no matter how long it takes.
  • I would tell them to keep trying and never give up! It's really hard thing to go through! But at least they're trying for their children and I would tell them it's not a nice thing to go through but you are doing the right thing for your children.
  • Everyone's case is different, but in my experience it was very stressful, upsetting, disappointing, frustrating, it was a life experience as well. But I wasn't happy at all with my case and the way it was handled.
  • See a lawyer first. Be the first to get legal aid involved - don't be a gentleman and wait
  • Be prepared for a long time spent in the family court as it moves very slowly. The time frame it works on is pathetic!
  • Apply for legal aid for good solicitor to help get your children home.
  • Take it to court and be honest and have faith in the court. Be strong for the children no matter how down you get.

APPENDIX 3 - Family law practitioner comments

Question 20: Are there any changes the Family Law Courts could make to improve its services for Aboriginal and/or Torres Strait Islander families when they are going to court?

  • I think that it helps ATSI Clients when they see other indigenous parties attending court. By grouping matters involving Indigenous Participants the Indigenous liaison can be present for a number of matters at the same time but also participants are perhaps more likely to engage in the process if they see more members of the public including members of the indigenous community (i.e. Court is not for white people - we all go there)
  • The presence of cultural support staff in the court (support staff should have a clear understanding of their role).
  • A small number of judicial officers to be provided cultural training to deal with applications/matters involving indigenous parties.
  • It is comforting to parties when judicial officers verbally acknowledge at the commencement of the matter that parties are Aboriginal or Torres Strait Islander and that cultural issues have to be considered. I was in court before FM Baumann - all parties were Aboriginal in that matter and he addressed the two unrepresented parties directly and explained the process in simple terms including the need to file their affidavits to 'tell their story'.
  • Independent children's lawyers and family report writers providing reports on indigenous parties should have a proper understanding and knowledge of the cultural issues and issues affecting Aboriginal and Torres Strait Islander communities and families as well as experience of working with indigenous parties.
  • Could a small number of persons specialize in that area? What about more indigenous family consultants?
  • Adelaide Registry- the court room/ set up is not appropriate for many Aboriginal parties - intimidation
  • More specialized Family Report units who can address cultural issues.
  • Aboriginal liaison officer based at court.
  • The physical setting of the court
  • Appoint an Aboriginal Liaison officer for each registry
  • Further acknowledgement that the child's link with Indigenous family members is of high importance.
  • On instruction on order was sought that a female family report writer should be appointed. An affidavit in support together with an expert (clinical psychologist) report was relied upon. The order sought was not made. The matter was referred to the appointee of report writers, and a female report writer was appointed.
  • The basis of the request for a female family report writer was psychological injuries, symptoms and effects, however clear provisions should be made for such orders on a cultural basis where evidence supports same (or other appropriate orders e.g. A male and female report writer).
  • Reinstate Indigenous Consultants within family law courts. My client found it very difficult to attend court because of problems. Culturally competent and unbiased report writers! They are HOPELESS!
  • More support perhaps with a support person for each client during their case.
  • Funding increased
  • An indigenous support court worker as opposed to upper-class volunteers who have no concept of the issues being tackled.
  • More information about cultural backgrounds of clients.
  • Aboriginal liaison officers to assist the Court.
  • I usually refer my clients to the Medical Centre for ongoing assistance with domestic violence, substance abuse and counselling for a more holistic approach to the legal resolution achieved at conference of Court. Ongoing support is critical.
  • Education (more) for Judiciary
  • Obtain expert cultural reports to determine 'live with' issues.
  • The courts should take into account when both parties are at court, any past incidents that have happened in that relationship. Most of our women get very angry and frustrated because of what brought them to court in the first place, like domestic violence, sexual abuse that was in that relationship beforehand.
  • Especially when that court does not bring into the decision the past patterns of abuse and the time the mother has protected the children.
  • Indigenous people tend to deal with family problems in their own way as they see appropriate and according to their culture. It is usually after numerous unsuccessful attempts have been made to resolve the matter informally do they approach a lawyer and seek assistance. It is often the case that the matter could not be resolved informally as there is a high level of conflict and disagreement between parties; therefore, it is unlikely that a referral to meditation will resolve the matter.
  • Notwithstanding the above, even if a referral was made indigenous people are unlikely to attend because of factors such as remoteness, financial constraints, time taken to resolve the situation and the difficulty they have sharing personal problems with these agencies/people whom they see as strangers. As such as parties are unlikely to engage, participate or attend it also creates another barrier in them accessing the legal system. The impact of which is that children end up not having a relationship with one of their parents and forming a cultural indentify with that side of their family.
  • Main change: so that ICL's and particularly family report writers receive mandatory training on ATSI issues.
  • More simplified process less paperwork
  • Longer time for them to be heard and able to understand the process
  • Clarifying the particular clan group community and cultures at the commencements of proceedings including what their traditional practices and beliefs are and whether the parties identify with their culture and how they maintain those practices and beliefs
  • Support people in Court
  • Extended family inclusive process
  • Less Adversarial approach as much as possible;
  • Representation by ICL's solicitors and counsel who are interested and trained in cultural matters and assisting indigenous clients with regular updated advice training and consultation
  • Court staff including Federal Magistrates and Judges who are interested and trained in indigenous and cultural matter to handle cases.
  • Wide consultation with different clan groups and their different cultures and the clash of cultures where parties are from different clan groups, one party is of European descent or if one part Aboriginal and the other Torres Strait Islander for example.
  • Consideration to include cultural law versus Family Law Act
  • Consideration to be given to including Child safety matters/legislation within the FLA in specific matters.
  • The Court has Aboriginal Liaison Officers available and this service is widely utilized to assist in matters involving indigenous clients, including when one party is NOT indigenous.
  • Support persons are always allowed into the courtroom.
  • I am uncertain what else the Court could to assist these clients in the court process.
  • Ensuring that evidence is able to be taken from people in remote locations, even if hearings are held in large cities.
  • Making proper provisions for cultural differences when assessing demeanor of witnesses.
  • Making it clear that children who have had little connection with Aboriginal heritage are not likely to get it out of a Family Court hearing.

Question 21: Do you believe that the provisions of the Act under S60CC(3)(h) are effective in protecting the rights of indigenous children to enjoy their indigenous culture, to participate in that culture with other indigenous people, and to maintain a connection with their indigenous culture?

  • I think that sometimes litigants exaggerate the true importance to the family of their indigenous culture. I think it is essential that the provision and that the parties are to be reminded of its importance. To that extent the issue becomes enlivened in the case and to some degree the provisions are effective but for the children to actually enjoy their culture there must be a strong local community which the family connects with anyway.
  • The provision is not effective to the extent that in implementation it is usually subordinate to live with/ time arrangements for parents or disregarded due to other factors such stereotyping or blanket allegations of drug and alcohol abuse in relation to extended family members.
  • My view is that this provision is not always given the level of consideration required by the Court although information is provided to the Court about a party's cultural background.
  • Often there is a reliance on the Family Report unites or the particular FM. It can very much be dependent on these factors.
  • When a decision is being made about where a child should live the Court should consult with an anthropologist and/or Aboriginal organisation this includes elders of local Aboriginal communities
  • In the event a child is to live with a non- Aboriginal parent - a cultural maintenance plan should be reflected in the Final Orders
  • Yes, in theory
  • S60CC (3) (h) cannot be viewed alone, without reference to other relevant provisions. Indigenous clients instruct Australian family law provisions are not cross culturally appropriate.
  • 5 respondents answered 'yes' to this question.
  • I find that it depends on the Judge/ Federal Magistrate. Some give that particular section little if any regard. Same with Lawyers.
  • Culture is relevant so far as all backgrounds are concerned!
  • Yes. In the circumstances that the Court puts significant weight on this S60CC factor in circumstances the child is of Aboriginal or Torres Strait Islander background and identifies with this culture.
  • No, because (3) (h) is not elevated as a priority among S60CC factor. As such it is too easily subjugated to the remaining S60CC factors.
  • Also modern day notions of enjoyment and participation on culture as understood by Aboriginal people is not understood by Judiciary.
  • Judiciary failed to understand culture evolves and so stereotype of being 'out bush' as example of participation in culture is imported and unlade to be reconciled with modern day lives of Aboriginal people living in urban areas, As result Judiciary failed to understand how culture is enjoyed in urban setting.
  • Judiciary did not appear to recognize importance of living in Aboriginal family in providing for sense of identity and belonging, especially into the future, or why this should be a priority for Aboriginal children. Current levels of education for Judiciary not evident in that question from the bench to Aboriginal persons were blatantly racist.
  • Yes, but if there is a non-indigenous party they all agree with what's put in place, and the lawyers just agree to the arrangement but our women always find that it's not happening in the child's life.
  • Don't know
  • No. For the reason outlined above.
  • I have not had to argue that point, judiciary appear very alert to the Section and in all cases have been sensitive to cultural/indigenous issues. I have noted that where the party observes the Court to be seeking that information, the party (client) feels much less anxiety and more confidence in the process.
  • Putting it any 'higher' could be interpreted as putting that protection above other protections afforded by the Act.
  • Have also had some concerns that where one party is Indigenous and the other is not, that it could become a difficult balancing act between the respective rights of those parties. Have observed in one (as yet unresolved matter) that the rights of the Indigenous party appear to be taking precedence over the other party's rights purely for 'cultural' reasons, and that a family report focused significantly on those rights as being a more significant that the other party's rights.
  • So although I do think the section allows the protection, it can create an imbalance where one party is not indigenous.
  • No, my experience is that indigenous people living in cities considerable distance from tribal areas have efficiently abandoned their cultural heritage. The law pays lip service to the issue of cultural connection, but when you get an indigenous person claiming heritage but having difficulty even describing the fundamentals (tribe, skin, language, elders, totems), the courts are skeptical of the claim. I know of at least 6 aboriginal children who are now being raised by whites who have no interest in the cultural heritage - after untested Family Court hearings. Blacks who run off to the cities to pursue internet relationships with whites will probably lose their children (city born) to those whites when the relationship breaks down.

APPENDIX 4 - Indigenous Litigant Questionnaire

Family Law Courts Litigant Questionnaire

LITIGANT Name male / female DOB
file number / location applicant / respondent
self-represented litigant no / yes / in part
court stage reached

consent orders prior to trial / consent orders during trial

family report completed / judicial decision

date finalised date of survey
LITIGANT address postcode
phone no.  
no. of subject children ages of subject children
subject children live with self / other parent / other family member
icl appointed yes / no
Resolution
1. What attempt was made to resolve the dispute before going to court?

o Family Relationship Centre

o Community Agency

o Legal Aid Conference

o Negotiation - Lawyers

o Negotiation - Family/Community

o Exemption due to family violence

o No attempt made

2. In attempting to resolve the dispute before going to court how satisfied were you with the services that you used?

o very satisfied

o satisfied

o neither

o dissatisfied

o very dissatisfied

3. why was it not possible to reach agreement before going to court?

o Non attendance by other party at mediation

o Non attendance by self at mediation

o Domestic violence issues

o Child protection issues

o Mental health issues

o Relocation issues

o Children's views at issue

o Entrenched communication issues

o Unresolved grief / separation issues

o Other

4. in going to court did you or the other party have concerns about the following issues?

Family violence

o Yes o No

Child abuse

o Yes o No

Alcohol abuse

o Yes o No

Drug / substance abuse

o Yes o No

Mental health

o Yes o No

Cultural issues

o Yes o No

Relocation

o Yes o No

Child support

o Yes o No

Other:
5. how important have the following issues been to you, or the other party, in the decision to go to court? (only ask about issues identified in 3 above)

Family violence

Self

o very important

o important

o moderately important

o of little importance

o unimportant

Other

o very important

o important

o moderately important

o of little importance

o unimportant

Child abuse

Self

o very important

o important

o moderately important

o of little importance

o unimportant

Other

o very important

o important

o moderately important

o of little importance

o unimportant

Alcohol abuse

Self

o very important

o important

o moderately important

o of little importance

o unimportant

Other

o very important

o important

o moderately important

o of little importance

o unimportant

Drug / substance abuse

Self

o very important

o important

o moderately important

o of little importance

o unimportant

Other

o very important

o important

o moderately important

o of little importance

o unimportant

Mental health

Self

o very important

o important

o moderately important

o of little importance

o unimportant

Other

o very important

o important

o moderately important

o of little importance

o unimportant

Cultural issues

Self

o very important

o important

o moderately important

o of little importance

o unimportant

Other

o very important

o important

o moderately important

o of little importance

o unimportant

Relocation

Self

o very important

o important

o moderately important

o of little importance

o unimportant

Other

o very important

o important

o moderately important

o of little importance

o unimportant

Child support

Self

o very important

o important

o moderately important

o of little importance

o unimportant

Other

o very important

o important

o moderately important

o of little importance

o unimportant

 
6. How did you first find out about the family law courts?

o Referral from RFC

o Referral from Legal Aid

o Referral from Lawyer

o Referral from CSA

o Internet

o Talking to friends / family

o Previous experience

o Media

7. How would you rate your knowledge of the family law courts before going to court?

o Very good knowledge

o Good knowledge

o Some knowledge

o Very little knowledge

o No knowledge at all

8. In your contact with court staff, either through counter or telephone inquiries, did you find staff helpful in providing information, assistance and/or referral?

o Very helpful

o Helpful

o Somewhat helpful

o Less than helpful

o Not at all helpful

9. Was there a specific event that led you and/or your partner to take the matter to court? if so, can you briefly describe the event?
 
10. Have you used the services of a children's contact centre to either exchange children or for supervised time with a child?

o Yes

o Changeover only

o Supervision of contact

11. If yes, how helpful did you find these services?

o Very helpful

o Helpful

o Somewhat helpful

o Less than helpful

o Not at all helpful

12. In attending court hearings to what extent did you experience the following? please rate your experience on a scale of 1 to 5 where 1 indicates never experienced, 2 indicates little experience, 3 indicates somewhat experienced, 4 indicates much experience, and 5 indicates a great deal of experience

Stress

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Frustration

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Anger

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Confusion

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Fear

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Relief

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Intimidation

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Disappointment

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Depression

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

To what extent do you agree with the following statements:
13. i was given enough information about what happens in court to be able to understand what was being said in court and what would happen next.
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
14. my lawyer kept me informed of what was happening.
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
15. i was treated with respect and sensitivity by court staff while going to court
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
Settlement
16. How satisfied were you with the agreement that was made at the time you went to court?

o very satisfied

o satisfied

o neither

o dissatisfied

o very dissatisfied

17. How satisfied are you now with the agreement that was then made?

o very satisfied

o satisfied

o neither

o dissatisfied

o very dissatisfied

18. what factors contributed most to reaching an agreement during the court case?

o Legal advice

o Negotiation between lawyers

o Child inclusive conference with family consultant

o Family report recommendations

o Withdrawal of Legal Aid

o Lack of money

o Advice from others

o Psychological stress

o Just gave up

19. Is the agreement you made still working?

o Yes

o No

o Changed by formal agreement to better suit situation

o Agreement not complied with by one or both parties

Determination
To what extent do you agree with the following statements:
20. The decision made by the court mostly supported my case
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
21. I was able to have a fair say about what would be best for my children
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
22. The final decision made by the court was in my children's best interests
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
23. I was satisfied with how my case was handled by the court, even if i might disagree with the final decision of the court
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
24. I clearly understood the reasons given by the court for making the decision that was made about my children
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
25. I was satisfied that the court process was fair and unbiased
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
26. I believe the court had all of the information it required to make a decision that would be in my children's best interests
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
27. The orders made by the court are working well
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
28. I understood the role of the independent children's lawyer in my case
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
29. The icl was effective in representing the best interests of the children
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
(Complete 30 and 31 only if cultural issues were identified as an issue in the case)
30. I believe the court was given enough information of cultural issues in my case
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
31. I believe the court gave adequate consideration to the cultural issues impacting on my children when making a decision about what would be best for them
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
Indigenous cultural issues
Complete the following section only if the client is identified as Indigenous
To what extent do you agree with the following statements:
32. The cultural needs of my child, as aboriginal and/or torres strait islander children, were properly considered by the court
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
33. The court was given enough information about what aboriginal and/or torres strait islander cultural issues to be able to make a decision about what would be best for my children
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
34. I am confident that my child's right to participate in aboriginal and/or torres strait islander culture has been preserved as a result of the decision made by the court
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
35. I believe my lawyer and i effectively conveyed to the court the importance of considering aboriginality and its importance for the children as they grow up
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
36. The court displayed respect and understanding in response to my concerns about aboriginal culture and its importance for the children
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
Complete the following only if a family report was prepared
37. The family report writer assessed the cultural issues relevant to what would be best for the children
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
38. The family report writer displayed a reasonable understanding of the cultural issues involved in my case
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
39. The family report writer displayed a reasonable level of cultural sensitivity in their contact with me and my family
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
40. I was satisfied that the family report writer did their best to understand and report upon the cultural issues that affected my children
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
41. I did not agree with the recommendations made by the family report writer
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
42. Are there any changes the court could make to improve its services for aboriginal and/or torres strait islander families when they are going to court?
 
43. If you knew of someone who was in a situation similar to yours - that is, having a major fight with someone about children following divorce or family breakdown - what advice would you give to them? And why?
 

APPENDIX 5 - Family Law Practitioner Questionnaire

Family Law Courts Practitioner Questionnaire

Practitioner Name

(optional)

 
Registry location  

In completing this questionnaire please focus upon one specific case involving an indigenous client who you have recently represented in the Family Law Courts.

Resolution
1. What attempt was made to resolve the dispute before going to court?
  • Family Relationship Centre
  • Community Agency
  • Legal Aid Conference
  • Negotiation - Lawyers
  • Negotiation - Family/Community
  • Exemption due to family violence
  • No attempt made
2. Why was it not possible to reach agreement before going to court?
  • Non attendance by other party at mediation
  • Non attendance by self at mediation
  • Domestic violence issues
  • Child protection issues
  • Mental health issues
  • Relocation issues
  • Children's views at issue
  • Entrenched communication issues
  • Unresolved grief / separation issues
  • Other
3. Was an agreement reached between the parties after the commencement of proceedings?
  • Yes
  • No
4. If an agreement was reached post-filing, what were the main factors that led your client to reach an agreement?
  • Community based dispute resolution
  • Legal Aid Conference
  • Negotiation between lawyers
  • Conference with a Family Consultant
  • Release of family report
  • Expression of judicial opinion
  • Withdrawal of legal aid funding
  • Cost of proceedings
  • Change in client's personal situation
  • Undertaking given by other party
  • Other:
Going to court
5. In attending court hearings to what extent did your client experience the following? please rate your experience on a scale of 1 to 5 where 1 indicates never experienced, 2 indicates little experience, 3 indicates somewhat experienced, 4 indicates much experience, and 5 indicates a great deal of experience

Stress

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Frustration

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Anger

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Confusion

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Fear

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Relief

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Intimidation

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Disappointment

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Depression

o 1 Never o 2 Little o 3 Somewhat o 4 Much o 5 A great deal

Determination
To what extent do you agree with the following statements:
6. The decision made by the court mostly supported my client's case
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
7. My client was able to have a fair say about what would be best for their children
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
8.The final decision made by the court was in the children's best interests
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
9. I was satisfied with how my client's case was handled by the court, even if it was not the desired outcome for my client
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
10. My client clearly understand the reasons given by the court for making the decision, though they did not necessarily agree with the decision
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
11. My client was satisfied that the court process was fair and unbiased
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
12.I believe the court had all of the information it required to make a decision on the best interests of my client's children
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
13.I believe the court was given enough information to understand the importance of cultural issues for my client
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
14. The cultural needs of my client's children were properly considered by the court
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
15. I am confident that my client's children's right to participate in aboriginal and/or torres strait islander culture has been preserved as a result of the decision made by the court
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
Complete the following only if a family report was prepared
16.The family report writer had sufficient information available to them to form an opinion upon the relevance and importance of cultural issues in this case
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
17. The family report writer effectively assessed the cultural issues relevant to what would be best for the children
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
18. The family report writer displayed at least an adequate level of expertise in their evaluation of the cultural issues involved in my client's case
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
19. My client did not agree with the recommendations made by the family report writer
o Strongly agree o Agree o Undecided o Disagree o Strongly disagree
20. Are there any changes the family law courts could make to improve its services for aboriginal and/or torres strait islander families when they are going to court?
 
21. Do you believe that the provisions of the act under s60cc(3)(h) are effective in protecting the rights of indigenous children to enjoy their indigenous culture, to participate in that culture with other indigenous people, and to maintain a connection with their indigenous culture?
 

APPENDIX 6 - List of focus group participants

Adelaide

Shaya Lewis - Dermody, Legal Services Commision of SA

Juliet Badics, Women's Legal Service (SA) Inc

Connie Mittiga, Women's Legal Service (SA) Inc

Carissa Bosch, Women's Legal Service (SA) Inc

Zita Ngor, Women's Legal Service (SA) Inc

Margaret Ross, Campbell's Chambers

Theresa Francis, Southern Region Primary Health -ATSI

Judy, AC.Care Murraylands -Aboriginal Family Support Services

Susan Dodd, Warndu Wathilli Cari

June Lennon, Aboriginal Family Violence Legal Service Inc

Rebecca Kimlin, Salisbury Family Relationships Centre

Colleen Welch, Courts Administration Authority Nunga Court

Terrence Wilson, Courts Administration Authority Magistrates Court

Judy Delahunty, Family Relationship Services Centacare Murray Bridge

Elizabeth O'connor, Family Relationship Services Centacare

Heather Agius, Education Department

Ruby Worthy, Ninko Kurtangga Patpangga

Jac Taylor, Central Domestic Violence Service

Gail Brown, Anglicare

Maryanne Childs, DV Crisis Service

Amanda Spalding, Port Lincoln Aboriginal Family Violence Prevention Legal Service

Melbourne

Susan Piscaneri, Family Relationship Centre, Sunshine

Chenai Muptoa, Family Relationship Centre, Sunshine

Shelley Burchfield, Family Violence Prevention Legal Service Victoria

Megan Ross, Family Violence Prevention Legal Service Victoria

Antoinette Braybrooke, Family Violence Prevention Legal Service Victoria

Hilda Quiroga, Family Relationship Centre, Melbourne

Rosie Smith, Department of Justice, Victoria

Lourdes Herber, Victoria Legal Aid

Parramatta

Melissa Shorter, NSW Legal Aid, Penrith

Rick Welsh, The Shed, University of Western Sydney

Gail Passier, Family Law Courts, Parramatta

Kate Batha, Family Law Courts, Parramatta

Mark Palmer, Family Law Courts, Parramatta

Dinh Tran, Family Law Courts, Parramatta

Mary Gleeson, NSW Legal Aid

Cairns Townsville

Mark Ascione, Aboriginal and Torres Strait Islander Legal Services

Fiona Campbell, Aboriginal and Torres Strait Islander Legal Services

Josephine Akee, Wuchopperen Health Service

Megan Cunnane, Federal Magistrates Court

Federal Magistrate Wilks, Federal Magistrates Court

Brisbane

Stephanie Ewart, Caxton Legal Service

Colin Forest , Family Law Practitioners Association Queensland

Jennifer Ekanayake, Aboriginal and Torres Strait Islander Legal Services

Karen Carmody, Queensland Bar Association

END NOTES

i The Senate Legal and Constitutional Affairs References Committee, Access to Justice, December 2009, page 6

ii The Senate Legal and Constitutional Affairs References Committee, Access to Justice, December 2009, page 6

iii Commonwealth Attorney-General's Department, Federal Civil Justice System Strategy Paper, December 2003, page 6, 81

iv Family Law Pathways Advisory Group, Out of the Maze, Pathways to the future for families experiencing separation, July 2001, page 6

v Family Law Pathways Advisory Group, Out of the Maze, Pathways to the future for families experiencing separation, July 2001, page 6

vi Cuneen, C., and Schwartz, M., Civil and Family Law Needs of Indigenous People in NSW, UNSW Law Journal, Volume 32(3), 2009, p7

vii Alastair Nicholson, Ethnicity, Aboriginality and Family Law, 9th Sir Leo Cussen Memorial Lecture, November 1995, page 15

ix See Jaffe, P., Johnston, J., Crooks, C., Bala, N., Custody disputes involving allegations of domestic violence: towards a differentiated approach to parenting plans, Family Court Review, Vol. 46, No. 3, July 2008

x Family Relationship Services Australia, Submission to the Family Law Council: The Delivery of Family and Relationship Services to families from Aboriginal and Torres Strait Islander heritage and their communities, June 2011, page 8

xi National Alternative Dispute Resolution Advisory Council, Indigenous Dispute Resolution and Conflict Management, January 2006, page 9

xii Family Relationship Services Australia, Submission to the Family Law Council: The Delivery of Family and Relationship Services to families from Aboriginal and Torres Strait Islander heritage and their communities, June 2011, page 13

xiii National Alternative Dispute Resolution Advisory Council, Indigenous Dispute Resolution and Conflict Management, January 2006, page 7

xiv Family Relationship Services Australia, Submission to the Family Law Council: The Delivery of Family and Relationship Services to families from Aboriginal and Torres Strait Islander heritage and their communities, June 2011, page 11

xv National Alternative Dispute Resolution Advisory Council, Indigenous Dispute Resolution and Conflict Management, January 2006, page 22

xvi National Alternative Dispute Resolution Advisory Council, Indigenous Dispute Resolution and Conflict Management, January 2006, page 16

Family Relationship Services Australia, Submission to the Family Law Council: The Delivery of Family and Relationship Services to families from Aboriginal and Torres Strait Islander heritage and their communities, June 2011, page 10

xvii National Alternative Dispute Resolution Advisory Council, Indigenous Dispute Resolution and Conflict Management, January 2006, page

xviii It should be noted that the author was involved in the supervision and management of this program throughout this period.