There is no doubt that the challenges faced by families who have experienced family violence are significant. Navigating a complex family law system, accessing legal and non-legal supports, and recovering from the impacts of family violence are not small tasks for any family. However, in order to develop solutions to support and protect those affected by family violence, it is critical to fully comprehend the unique needs of those families at high risk and tailor responses to ensure that the family law system is meeting those needs.
Some families can face additional barriers or difficulties when reporting family violence and accessing the family law system, placing them at a greater risk of ongoing and escalating violence, including:
Aboriginal and Torres Strait Islander families;
culturally and linguistically diverse (CALD) families;
families that include parents or children with disabilities;
people who identify as lesbian, gay, bisexual, transgender, intersex, or queer (LGBTIQ);
women recently released from prison;
families living with mental illness; and
families experiencing substance abuse.
Based on evidence received to the present inquiry, this chapter provides an overview of the unique difficulties that some of these high‑risk families face when experiencing family violence and accessing the family law system. Many of these challenges are shared between these high-risk families, whilst others are unique to the context of each family. Yet each must be accommodated in the design and delivery of the family law system if it is to provide protection from, and support following, family violence for those at risk.
Significantly, the barriers and difficulties faced by high-risk families are well documented, as are the recommendations for action to address those challenges. In 2012 the Family Law Council (FLC) produced two reports examining how to improve the family law system for Aboriginal and Torres Strait Islander families, and for CALD families. Both reports examined the multiple barriers faced by these families in accessing the family law system, and the challenges experienced once within the system. These reports were followed in 2015 and 2016 by two reports on families with complex needs navigating the family law and child protection systems. The second and final report, in 2016, includes discussion of the challenges that vulnerable families face when accessing the family law system.
This chapter will consider the barriers and difficulties of each group listed above, and draw upon the findings and recommendations of those reports. The chapter concludes with the Committee’s recommendations for reform to ensure that the family law system is accessible, equitable, responsive and prioritises the safety of all Australians.
Aboriginal and Torres Strait Islander families
Statistically, Aboriginal and Torres Strait Islander families are disproportionately affected by family violence. In comparison with other Australian women, Aboriginal and Torres Strait Islander women are 34 times more likely to be hospitalised as a result of family violence and 10 times more likely to be killed. Aboriginal and Torres Strait Islander children are seven times more likely than non‑Indigenous children to have received child protection services, and 10 times more likely to be the subject of state and territory care and protection orders, following violence in their family.
Despite these statistics, multiple submissions reported that while Aboriginal and Torres Strait Islander families are overrepresented in the child protection, criminal and civil law systems, they are significantly underrepresented in the family law system. Evidence suggests that this is due to key barriers that these families face in accessing the family law system, including:
the long-term impact of intergenerational trauma;
fear of child protection notifications and child removal initiated by family law proceedings;
geographic and economic barriers;
language, literacy and education;
culturally inappropriate services; and
crisis and long-term housing.
The following sections discuss these barriers and recommendations for reform.
Barriers to the family law system
Intergenerational trauma and child removal
The historical legacy of the forced removal of children and forced resettlement of communities, as well as the contemporary cycles of engagement with criminal justice and child protection systems, has caused significant fear of engagement with the family law system.
The Central Australian Aboriginal Legal Aid Service (CAALAS) explained that the experiences of Aboriginal and Torres Strait Islander peoples within the justice system as a whole ‘must be seen through the prism of intergenerational trauma’ caused by such policies. Similarly, the Alice Springs Women’s Shelter (ASWS) noted that when trust is compromised in one part of the justice system, engagement in another can be compromised:
If women have had an experience of some sort with the justice system and have been treated poorly then they’re not going to trust it again. And there are issues with trusting the police. It starts from the very beginning, which then feeds down to the family law court.
The National Family Violence Prevention and Legal Services Forum (NFVPLSF) stated that ‘long held’ distrust of police and the justice system have established barriers to Aboriginal and Torres Strait Islander families accessing the family law system. NFVPLSF explained:
Historical contact between Aboriginal people and the justice system has resulted in families being separated, children taken away, men incarcerated and deaths in custody. Additionally, the prevalence of the police not taking Aboriginal victims’ complaints seriously, for example, calling it a “family matter” has deterred Aboriginal victims/survivors from accessing the justice system for their protection.
The removal of children from families experiencing family violence was discussed in Chapter 6. For Aboriginal and Torres Strait Islander families however, ongoing intergenerational trauma from past child-removal policies can affect their experience of family violence and engagement with the family law system.
The ASWS reported that women ‘have regular stays at crisis accommodation services not only to keep themselves safe, but in many circumstances, to prevent the removal of their children from them … due to family and domestic violence’. The Shelter elaborated:
The implications for child protection and child removal are also significant when a woman with children fleeing violence is presented with only two options: homelessness or violence. Child protection services may misinterpret this as a choice in the sense that they perceive women may have other choices. In the cultural context of family and domestic violence and small populations, there is no safe place for women and children to flee to.
Geographic and economic barriers to access
Many Aboriginal and Torres Strait Islander families have no or limited access to the family law system due to geographic and economic reasons. For some families, these barriers can be insurmountable. By way of example, the family courts sit in Alice Springs only four times a year and the Local Court does not exercise family law jurisdiction, presenting significant challenges for the ongoing safety of families experiencing family violence.
In regional and remote areas physically accessing the Court and other services can be difficult for many Aboriginal and Torres Strait Islander families, who may not have access to transport or live in areas not serviced by public transport. Other factors inhibiting travel include seasonal flooding, travel time and costs.
As discussed in Chapter 4, state and territory magistrates’ courts have been reluctant to exercise jurisdiction under the Family Law Act 1975 (Cth) (Family Law Act). However, the Family Law Council has found that where local magistrates have exercised the jurisdiction, a lack of understanding of the Family Law Act and in some instances family violence, have caused significant concerns for Aboriginal and Torres Strait Islander families.
Language, literacy and education
Language, literacy and education can present a barrier to accessing the family law system, and related services, for Aboriginal and Torres Strait Islander families. Written and oral communication in the family law system relies strongly on English language proficiency. These accessibility challenges can be compounded when English is not a first language, or when there are literacy difficulties.
Appropriately trained and qualified onsite interpreters can be critical to mitigating these language and communication barriers. Although interpreters may be used to ameliorate barriers, the availability of interpreters, particularly in some language groups, is severely limited. These shortages can be compounded by additional factors:
for cultural reasons, it may be inappropriate to have an interpreter of a particular gender, age or relationship to a party;
the interpretation of family law concepts and procedures is technically challenging, requiring a high level of interpretive skill and understanding of legal jargon; and
in smaller communities, conflicts of interest and confidentiality concerns can exclude some trained interpreters.
The impact of the lack of interpreters can affect not only the family’s understanding of their legal options, but also the information that is provided to the Court when matters are heard. For example, CAALAS advised that family reports are ‘often’ prepared without an interpreter to facilitate communication between the family consultant and the client/s. CAALAS commented that ‘obviously, if there’s no report writer that has that cultural awareness and no interpreter, the report’s going to be deficient’.
Culturally appropriate services
Culturally responsive services affirm Aboriginal and/or Torres Strait Islander cultural identity, respect for cultural norms relating to gender, and the use of verbal and non‑verbal modes of communication. Such services appropriately respond to notions of kinship and involve a range of relevant extended kin networks in the resolution of disputes. For Aboriginal and Torres Strait Islander families, the family law system is not culturally appropriate in addressing family violence and therefore can deter these families from using the family law system to protect and support them following violence.
For example, NFVPLSF notes that the family dispute resolution (FDR) process may be particularly ‘alienating’ for Aboriginal and Torres Strait Islander families, because it is built on western communication and conflict resolution methods. Culturally inappropriate services can pressure families affected by family violence to accept settlements that do not meet their needs or preferences.
Significantly however, data provided in the 2012 FLC report Improving the family law system for Aboriginal and Torres Strait Islander clients, suggests that the use of FDR services is slowly increasing in Aboriginal and Torres Strait Islander families, particularly in regional areas.
All families need safe, affordable and appropriate housing. For those experiencing family violence, accessing such accommodation is often difficult, if not impossible without experiencing significant financial hardship. Housing was raised as a key issue in evidence regarding Aboriginal and Torres Strait Islander families, with lack of safe housing identified as being a key contributor to the removal of children in Aboriginal and Torres Strait Islander communities.
ASWS provided evidence regarding the consequences of limited housing when trying to flee a violent situation:
The Northern Territory has a homeless rate 15 times the national average. This in effect forces victims back to environments where they must measure the level of violence they will experience in order to stay safe by relying on safety planning rather than legitimate justice outcomes. For example, a client may have no choice but to live in an overcrowded three bedroom dwelling belonging to a member of the extended family, where the perpetrator may be able to continue to access them, albeit at a lower or less frequent level of access.
The importance of crisis and long-term housing for all families experiencing family violence will be discussed in more detail in Chapter 9.
Recommendations for reform
The FLC’s 2012 report Improving the family law system for Aboriginal and Torres Strait Islander clients, examined how the family law system could better meet the needs of Aboriginal and Torres Strait Islander clients, and discussed the various barriers that contribute to the underutilisation of the family law system by this community. In 2016 the FLC released the final report on Families with complex needs and the intersection of family law and child protection systems. This report considered a range of matters in relation to families with complex needs, including Aboriginal and Torres Strait Islander families.
The following section discusses a number of the recommendations developed by the FLC, which numerous submissions to this inquiry referenced and endorsed.
To address the education barriers faced by Aboriginal and Torres Strait Islander families, the FLC recommended a range of family law legal literacy and education strategies to:
inform Aboriginal and Torres Strait Islander peoples about the formal justice system, legal responses to family violence and the rights and obligations of separated parents;
allow for education and information to be delivered in Indigenous languages, plain English and in formats appropriate to particular communities and age groups; and
ensure that the information is continuously accessible and delivered in a culturally appropriate format.
A culturally competent family law system
A culturally competent family law system involves services that deliver appropriate, culturally safe practice. Cultural safety is more than simple cultural awareness; it is improving outcomes by incorporating culture into service delivery, and requires a ‘whole of organisation’ approach in which culture is understood, valued and ‘celebrated at its very core’.
Improvements in culturally safe service delivery involve changes in a number of areas, including cultural competency, professional development, and identified positions in the workforce.
In 2012 the FLC recommended that a cultural competency framework be developed for the family law system and that the competency of family law professionals be improved through dedicated and flexible training and the development of good practice guides.
Additionally, the FLC recommended implementing workforce development strategies to help build an Aboriginal and Torres Strait Islander workforce in the family law system. In a submission to the present inquiry the NFVPLS also highlighted the importance of employing more Aboriginal and Torres Straight Islanders within legal services:
It is virtually impossible for a mainstream duty lawyer in a once-off, or intrinsically time-pressured environment to build the rapport and trust necessary to overcome the barriers faced by an Aboriginal or Torres Strait Islander victim/survivor in order to obtain full instructions and provide culturally competent, detailed yet readily understood advice – nor allay the intimidation, anxiety and cultural alienation frequently reported by our clients in attending the Family Law Courts.
In 2016, the FLC recommended the development of a pilot of a specialised court hearing process for Aboriginal and Torres Strait Islander families, to improve cultural safety. This process would involve the participation of elders to provide advice to the Court regarding any children involved in the case.
Further to this, the FLC recommended that Cultural Reports be included as an integral component of family reports for cases that involve Aboriginal and Torres Strait Islander children, and that these include a cultural plan for the child’s ongoing connection with country and kinship networks.
As noted by the FLC however, efforts to improve culturally responsive service delivery ‘must also take account of the diversity of Aboriginal and Torres Strait Islander peoples, and the important ways in which family structures and practices may differ from those of other clients of the family law system’.
Family dispute resolution and conferencing
The need for cultural competency in FDR is referred to in a number of submissions, and in evidence provided at public hearings. The evidence provided aligned with a recommendation from the FLC 2016 for the convening of family group conferences for Aboriginal and Torres Strait Islander families, for some family law matters. The FLC noted that some organisations within the family relationship sector are equipped to conduct family group conferences in the context of child protection, and that this experience could assist the development of family group conferences for the resolution of other family law matters.
CAALAS also noted the importance of involving elders in resolution processes. CAALAS recommended a family dispute resolution model where more traditional dispute resolution approaches are recognised, such as involving elders in the process:
[We would propose to] have some kind of facility for elders to provide input or some kind of conferencing to allow family members to be involved and give a cultural perspective. There’s no mechanism for that to occur at the moment. Only the parties can be involved in the proceedings or the mediation ... I think that is an important proposition.
Central Australian Women’s Legal Service (CAWLS) cautioned however that there can be ‘difficulty involving elders’ due to various ‘family dynamics’ in some communities.
As described in Chapter 8, a number of submissions discussed the inadequacy of the capacity of family consultants and family report writers. This includes the ability to work effectively with clients from Aboriginal and Torres Strait Islander backgrounds.
The FLC’s 2012 recommendations included that more Aboriginal and Torres Strait Islander family consultants and family liaison officer positions be developed to improve outcomes for Aboriginal and Torres Strait Islander families. Further to this recommendation CAWLS suggested that targeted training for family consultants is important for effective reports to be developed by non-Indigenous family consultants.
Collaboration and service integration
The FLC noted that collaboration between Aboriginal and Torres Strait Islander services and services across the family law system is ‘essential [for] meeting the complex needs of Indigenous clients’. Once a service within the family law system identifies Aboriginality, it is important for the service to have strong referral pathways into culturally safe support services.
The FLC recommended strategies to enhance collaboration between the mainstream family law system and culturally specific service providers, including the creation of a ‘roadmap’ of services, integration of the roadmap into government resources and initiatives, and the promotion of these resources for Aboriginal and Torres Strait islander families.
Echoing the FLC 2012 report, a number of submissions recommended improvements in access to interpreter services for Aboriginal and Torres Strait Islander languages. The FLC specifically suggested a needs analysis of:
the prevalent language groups;
the pool of available interpreters for particular language groups;
an assessment of which language groups require interpreters;
initiatives to increase the pool of interpreters in required areas; and
developing regional lists of pools of interpreters with knowledge and understanding in family law.
Additionally, in 2016 the FLC recommended that legal interpreters should receive family law training as part of accreditation, and that protocols are established to ensure that Aboriginal and Torres Strait Islander clients are made aware of their right to an interpreter, and that an interpreter service is offered and provided, if needed.
Some submissions also recommended that interpreters should be flexible in service delivery and able to provide face-to-face as well as telephone interpretation services.
Culturally and Linguistically Diverse families
Multiple submissions recognised that people from CALD backgrounds are underrepresented in the family law system, and are less likely to seek help for issues regarding family violence.
Evidence suggests that a number of barriers contribute to this underrepresentation:
education about the legal system;
access to culturally appropriate services;
language difficulties; and
understanding culturally specific family violence.
The following sections discuss these barriers and recommendations for reform.
Barriers to the family law system
Education, language and literacy
Whilst CALD families experience similar forms of family violence as non-CALD families, they are often unaware that their experiences constitute family violence and are illegal. This lack of awareness of rights and of Australian law commonly means that CALD families do not report violence or engage in the legal system.
Access Community Services (Access) suggests that people from CALD backgrounds may use their home country as a ‘frame of reference’ for viewing family violence. For example, a CALD family may originate from a region where:
violence against women is legal or not recognised;
there are no legal protections against family violence;
seeking help from outside of the family group is considered shameful; or
there is a culture that promotes greater acceptance of family violence as normal.
If these cultural settings are used as a frame of reference, it encourages silence about family violence.
In addition, CALD families may have minimal knowledge of Australia’s legal system. In particular, a lack of knowledge about migration law can be detrimental to CALD families. Multiple submissions reported that an unfounded fear of deportation prevents many newly arrived immigrants from reporting family violence and accessing support. This fear arises where CALD families arrive in Australia on a partner visa, with knowledge that they can remain in Australia on the basis of their relationship with an Australian citizen or permanent resident (sponsor). However, many are unaware that the Migration Regulations 1994 (Cth) prescribe a family violence exception where a person can remain in Australia if they, or a member of the family unit, ‘has suffered family violence committed by the sponsoring partner’. Without this awareness, many victims of family violence remain in the violent relationship.
If a CALD family does seek to report family violence and access the family law system, language differences can present a significant barrier. Multiple submissions refer to the inadequate provision of information in languages other than English in legal and non-legal services, police stations, online application lodgement systems, and at courts. For example, the Magistrates’ Court of Victoria advised that family violence intervention orders are not provided in languages other than English, and that ‘translations are not accommodated by the courts’ case management system … due to the personalised nature of intervention orders’. This can present significant safety risks for CALD families.
For the legal system to respond to the needs of CALD families, the availability of ‘professional, appropriate and skilled interpreters’ is crucial. The Legal Services Commission of South Australia provided an example of the demand for interpreters, reporting that approximately 25 per cent of their clients accessing legal advice from July 2016 to April 2017 required interpreter services. Further, the Magistrates’ Court of Victoria advised that in 2013/14 there were 1,210 individual case requests for interpreters, with some using interpreter services on multiple occasions.
Despite this demand, multiple submissions advised that there is often a lack of ready access interpreters within court and other services.
In addition, to assist CALD families to successfully access interpreter services, court and support staff must be aware of the need to consider certain cultural complexities and needs. For example:
whether interpreters are versed in the correct cultural practices or communication styles;
concerns around confidentiality in small language groups where the interpreter may be known to the family;
using an interpreter who is a different gender to the client can cause distress;
the interpreter needs to be appropriately qualified and understand technical and legal language; and
it is important to determine which dialect of the language is needed.
Culturally appropriate services
A number of submissions raised concerns about lack of access to culturally appropriate legal and support services for CALD clients. CALD individuals may be deterred from accessing services due to:
services failing to advertise that they employ staff with CALD backgrounds;
limited provision of information in appropriate languages;
limited understanding of the impact of trauma;
limited understanding of culturally-specific violence;
community pressure to solve problems ‘in-house’, and fear of social isolation;
prejudice or discriminatory attitudes from staff; and
general lack of cultural awareness and sensitivity.
Multiple organisations expressed concern about culturally specific family violence involving dowries and bride prices. Dowry is defined as money, gifts or property that a bride or her family gives to the groom in the context of a marriage. Bride-price occurs when a man ‘pays’ an amount (in money or other goods) to the bride’s family before marriage—the wife is then considered ‘paid-for’ and owned by the husband.
Dowry (including bride-price) abuse is a specific form of financial abuse that can occur for individuals from countries that have these practices. The abuse often occurs in the form of coercive demands for additional payments from the bride or her family after the marriage, often accompanied by physical and emotional violence; or demands for dowry return if the marriage ends.
Although economic abuse is defined as a dimension of family violence in the Family Law Act, it is poorly understood by service providers, the police, family law professionals, and the persons experiencing it. When there are cultural aspects to the abuse, it may be even less understood.
Recommendations for reform
The FLC’s 2012 report, Improving the Family Law System for Culturally and Linguistically Diverse Clients examined how the family law system could be made more effective for CALD families. The FLC made a number of recommendations for improvement which were referenced and built on in the 2016 report. The following section will discuss the key recommendations from the FLC which were referenced or endorsed by multiple submissions to this inquiry.
Education, language and literacy
The FLC recognised the need for legal education in CALD communities, and recommended development of family law legal literacy and education strategies for CALD communities. To assist with language barriers the FLC further recommended that information regarding the family law system is available in multiple languages—whether online or in hard copy—and that this information is adequately distributed to migrant and mainstream services.
The FLC Report highlighted the need to enhance the ability of CALD families to communicate effectively in the family law system. This included recommendations for legal interpreters to be trained in family law as part of the accreditation process, the development of a national protocol on the use of interpreters in the family law system, and the development of pools of interpreters with knowledge and understanding of the law. Supporting the FLC recommendation, the Federation of Ethnic Communities’ Councils of Australia further recommended that investments be made to ensure the provision of fully accredited translators in family law cases, and fill any absences of interpreters in specific language groups immediately.
Culturally appropriate services and engagement
The FLC recommended the development of a cultural competency framework for the family law system, covering culturally responsive practice with CALD families. The report recommended improving cultural competency by:
investing in flexible learning packages that are adaptable across different settings;
developing ‘good practice guides’ for being culturally responsive in specific service areas;
making cultural competency a professional development requirement in vocational and tertiary education programs; and
ensuring that cultural competency is embedded within the family law system.
The Legal Services Commission of South Australia highlighted the need for cultural competency training to be provided to police officers as well as judicial officers. WLSA recommended the development of a consistent Code of Practice for the investigation of family violence, for all state and territory police. Such a code would include specific requirements for police to receive effective cultural awareness training for working with CALD and Aboriginal and Torres Strait Islander communities.
Multiple submissions called for a more diverse workforce, with staff ‘empowered with an understanding of cultural context’ that practice in culturally appropriate ways. The FLC noted the need for more bicultural and bilingual employees within the family law system, and made a series of recommendations for workforce development. These included strategies to increase the number of CALD employees across family law systems services and funding for CALD Community Liaison Offers to work within family relationship services and the family law courts. In 2016 the FLC additionally recommended the incorporation of CALD services in the development of any new, integrated services models for the family law system.
The FLC noted the need for engagement and consultation with CALD communities, and recommended that support be provided to courts, agencies and services within the family law system to collaborate with CALD communities in ‘the development, delivery and evaluation of services’. In 2016 the FLC later recommended implementing processes to support family group conferencing for CALD families, to enhance decision-making and establish the interests of children involved in a family law matter.
In 2012 the FLC noted that there was a lack of understanding of dowry in Australian law, particularly regarding property division settlements. Multiple submissions urged that:
dowry related abuses be recognised as constituting family violence;
family law professionals be educated on dowry and bride price, in order to increase awareness and recognition of dowry-related abuse; and
the practice of dowry/bride price be taken into account in property-division process.
The Australasian Centre for Human Rights further recommended that the term ‘dowry extortion’ should be considered as an example of extortion in the Family Law Act.
Families with parents or children with disabilities
People with disability experience violence at higher rates than people without disability. For example, women with disability are 40 per cent more likely to experience domestic and family violence. Children with disability also have a different experience of family violence, and can either be the target of that violence, or the perpetrator. The family law system must respond effectively to the needs of people with disability and understand the substantial barriers faced when engaging with the family law system.
Siblings of children with disability can be adversely affected in family violence situations. Siblings may feel pressure to protect their siblings with a disability—both from family violence and from traumatic family law procedures. Additionally, siblings of children with disability may experience family violence perpetrated by their sibling.
Siblings Australia highlighted the significant impact of family violence within families that have a child with disability who is violent toward their siblings. They note that parents can hide such violence for fear of having a child removed from the family. The Committee heard that the experience of violence can cause significant trauma and ongoing emotional, psychological and physical difficulties for the sibling experiencing the violence.
Children or parents with disability experiencing family violence can be placed at risk when accessing the family law system. A lack of understanding of disability among family law professionals such as family report writers can have significant consequences. For example, a report that casts a parent with disability in ‘a less favourable light’ or as less capable of parenting may result in a favourable outcome for the perpetrator of family violence (without disability). In fact, parents with disability are 10 times more likely to have a child removed from care, than parents without disability. If the child is returned to the perpetrator they are placed at significant risk of harm.
People with Disability Australia explained that there is limited support to parents with disability who have experienced family violence:
[Child protection departments] believe that they have a bit more of a right to then get involved and remove those children. There seems to be very little awareness or support for them to support those parents appropriately in keeping their children, in particular if one of them is experiencing family domestic violence. There really seems to be very little support.
This is particularly the case for parents with intellectual disability:
Parents with intellectual disability have to be given the opportunity to parent. Often children are removed before they even have a chance. If given the opportunity and if given the chance to demonstrate what supports they may need to parent their children, we can then look at the ongoing supports and providing them in an appropriate manner.
Barriers to the family law system
Reporting family violence
The experience of violence for people with disability can be unique, and involve forms such as the withholding of food, water or medication, threats to withdraw care or institutionalise, threats against support animals, and forced isolation. People with disability can hesitate to disclose such experiences because these forms of violence are not easily identified as family violence by police and other services. Further, people with disability who have difficulty communicating may be reliant on services to recognise that violence is occurring.
People with disability may also hesitate to report family violence for a number of other reasons including:
fear of the withdrawal of physical or financial support;
limited relationships education, resulting in limited awareness of rights and of what constitutes violence;
discrimination and victim blaming, particularly if the perpetrator is a carer; and
Appropriate support services
Domestic violence shelters are a common point of entry into support services. For a person with a physical disability, physical access to shelters ‘is a big barrier’ that limits ‘access to any information or services that they [people with physical disability] could receive in those settings’.
Once within the family law system, a lack of understanding of and experience with disability by family law professionals and service staff can present difficulties. Court-based support services need to identify and respond to the needs of people with disability effectively, but this is difficult without proper understanding of disability and the unique ways family violence can affect people with disability. Significantly, this can present safety risks if family violence is not properly identified, risk assessments are not completed, or appropriate support is not provided.
Multiple submissions recommended that enhanced disability awareness education within the family law system and support services on disability awareness, including:
impact on children with disability;
additional barriers for parents with children who have disability;
children with disability perpetrating violence;
the unique experiences of family violence for people with disability;
barriers to accessing the family legal system; and
strength-based approaches to working with people with disability.
Many submissions endorsed the WLSA Safety First Plan, with amendments to properly support people with disability, including:
a risk assessment framework that is inclusive of the experiences of people with disability;
court based support services and family violence specialists who have received disability awareness training;
embedding disability advocacy organisations into the family law system, in addition to domestic violence services; and
family violence training for family law professionals that includes disability awareness training.
Other groups with particular needs
LGBTIQ communities experience family violence in distinct ways, and have unique barriers in accessing the family law system. The Victorian Royal Commission into Family Violence reported that LGBTIQ communities may be reluctant to seek help due to discrimination, homophobia or transphobia. Further, a lack of awareness of LGBTIQ needs amongst legal and non-legal service providers can discourage engagement with the family law system.
The Victorian Royal Commission also noted that women in prison who have experienced family violence may have particular vulnerabilities and needs when accessing the family law system. For example, accessing appropriate support to recover from family violence, whilst incarcerated.
The Victorian Royal Commission suggested that early identification of women prisoners who have experienced family violence, and provision of appropriate supports both within and on release from prison, is necessary to help protect this group from the risk of further violence.
Multiple submissions noted a need for improvement in the quality and accessibility of services for people from LGBTIQ communities, and women in prison, and recommended that family law professionals receive training on working with these groups to ensure that the family law system is accessible and responsive to the needs of all Australians.
Whilst all families experiencing family violence face immense difficulty in seeking help and navigating the family law system, there are some groups of people who have particular needs, particularly Aboriginal and Torres Strait Islander communities, people from culturally and linguistically diverse backgrounds, and people with disability.
The Committee notes the work of the Australian Government on the National Plan to Reduce Violence against Women and their Children 2012-2020 (the National Plan). In particular to:
improve community safety, and access to resources for Aboriginal and Torres Strait Islander families;
support Aboriginal and Torres strait islander communities to prevent and respond to violence; and
provide improved, trauma-informed, and community driven support for Aboriginal and Torres Strait Islander families experiencing family violence;
work with culturally and linguistically diverse communities to reduce and respond violence; and
provide training to raise awareness of the needs of women with disability experiencing family violence.
The Committee recognises that many of the obstacles that families from these groups face in accessing the family law system can put them at greater risk of harm, and change is needed urgently.
People with disability often experience family violence at higher rates, for longer periods of time, and in additional ways to people without disability. The significant barriers that people with disability face when trying to access the family law system can place these families at greater risk of further harm. The Committee is exceptionally concerned by the high rates of child removal from parents with disability, and the associated implicit bias regarding the parenting capacity of parents with disability. Children who are inappropriately removed from a parent with disability and ordered to live with a perpetrator of violence face an unacceptable risk of harm.
Although the Committee did not receive sufficient evidence to the inquiry, the Committee acknowledges that other marginalised groups, including LGBTIQ communities and women prison, have unique needs and face unique obstacles when accessing the family law system. It is understood that the issues facing these groups, and people with disability, will be examined in more detail by the Australian Law Reform Commission, in regards to the Commission’s examination of families with complex needs as part of its Review of the family law system. As noted earlier, the Commission is due to report to in 2019. The Committee is confident that the Commission will look to address the unique needs of these less-recognised families in developing a revised family law system that is accessible to all Australians.
Aboriginal and Torres Strait Islander families
The Committee notes the significant barriers that Aboriginal and Torres Strait Islander families face when accessing the family law system. The Committee was deeply affected by a number of site inspections in Alice Springs, which focused on how Aboriginal and Torres Strait Islander families currently experience the family law system and wider supports, and how they could be better supported through the family law system.
A central contribution to the underutilisation of the family law system by Aboriginal and Torres Strait Islander families is a lack of understanding about the family law system, inappropriate cultural responsiveness, and a distrust of services within the family law system. Many recommendations for reform discussed at the site inspections are well known, and action is required to implement them. The Committee notes that these concerns were key focus areas in the recommendations for improvement made in the Family Law Council’s 2012 report, Improving the family law system for Aboriginal and Torres Strait Islander clients.
Aboriginal and Torres Strait Islander women are more likely to be hospitalised and more likely to lose their life as a result of family violence. Yet Aboriginal and Torres Strait Islander families are not engaging in the family law system because of cultural incompetency, under resourcing of interpreters, limited information in Indigenous languages and a lack of community education. This is a significant problem that has been examined and reviewed extensively with gaps still existing in service provision. The Family Law Council’s recommendations are strong, well developed, and thorough, and have received strong community support including endorsement by 23 submissions to the present inquiry.
The Committee notes that the Australian Government, as part of the National Plan, has provided $6.2 million to fund the development and piloting of new, culturally appropriate and effective models of family dispute resolution. The Committee awaits with interest the outcome of these pilot programs.
The Committee is of the view, however, that there is much more that can be done to ensure the family law system is accessible, equitable, responsive, and prioritises safety for this particularly vulnerable group. In presenting these recommendations to government, the Committee draws upon the strong, well-developed and thorough recommendations of the Family Law Council as supported by evidence to the present inquiry.
The Committee also notes its earlier recommendation, Recommendation 11, that a trial be conducted in state and territory specialist family violence courts that would enable all family law issues in family violence cases be determined by the one court. As part of that recommendation, the Committee also strongly recommends that one of these trial courts should be located in an area of high indigenous population.
The Committee recommends that, as a matter of urgency, the Australian Government implements the Family Law Council recommendations from both the 2012 Improving the family law system for Aboriginal and Torres Strait Islander clients report, and the 2016 Families with complex needs and the intersection of the family law and child protection systems – Final Report, as they relate to Aboriginal and Torres Strait Islander families, including those recommendations addressing:
culturally diverse workforce;
early assistance and outreach;
legal and non-legal services;
family group conferences;
participation of elders or respected persons in court hearings; and
consulting with Aboriginal and Torres Strait Islander representatives in the development of any reforms.
Culturally and Linguistically Diverse families
The Committee acknowledges that inadequacies within the family law system are contributing to the underrepresentation of CALD families in the family law system. Of particular concern to the Committee is the limited awareness of legal rights amongst the CALD community, the significant difficulties associated with accessing appropriate interpreter services, and the need for culturally competent services.
The Committee notes the considerable work of the Family Law Council in this area. The Family Law Council has made robust, detailed and well-considered recommendations for improving the family law system for families from CALD backgrounds. These recommendations have been well-accepted by the community, and endorsed by eight submissions to the present inquiry. Despite this, minimal changes have been made to address key issues facing this vulnerable group.
The Committee notes recent media coverage foreshadowing that the Victorian Government is preparing legislation to prevent the extortion of dowry money, as a response to the findings of the Victorian Royal Commission into Family Violence. The Committee looks forward to following the development of this legislation.
However, the Committee believes that the family law system is not currently accessible, equitable, responsive or prioritises the safety of CALD families. In making recommendations to government to address these concerns, the Committee draws upon the strong, focused, well-developed recommendations of the Family Law Council as supported by evidence to the present inquiry.
The Committee recommends that, as a matter of urgency, the Australian Government implements recommendations from both the 2012 Improving the family law system for clients from culturally and linguistically diverse backgrounds report, and the 2016 Families with complex needs and the intersection of the family law and child protection systems – Final Report, as they relate to culturally and linguistically diverse families, including those recommendations addressing:
culturally diverse workforce;
consultation with culturally and linguistically diverse communities in service evaluation;
cultural connection for children; and
family group conferences.
Building on its previous recommendations for an expanded Family Advocacy and Support Service attached to the Court, the Committee also recommends that this service provide collaboration and referral pathways to support services, particularly for those families with additional challenges as discussed in this chapter.
The Committee recommends the Attorney‑General extends the Family Advocacy and Support Service pilot to include collaboration and referral pathways to specialist support services for families with additional challenges, using the Children and Family Court Advisory and Support Service model.