ETHNIC DIVERSITY AND CHILDREN™S RIGHTS : RECOGNITION

“ETHNIC DIVERSITY AND
CHILDREN’S RIGHTS:
RECOGNITION OF CULTURE
IN LAW AND PRACTICE
With particular reference to The Family Law Court of
Australia
”
Ms Carlo L. Abela and Mr Victor G. Borg
Concurrent Session : 4-5.30pm Wednesday 21
October 1998
“Ethnic Diversity – Challenges for Courts”
at the
Third National Family Court Conference
Sofitel Hotel Melbourne
Tuesday 20 – Saturday 24 October 1998
ETHNIC DIVERSITY AND CHILDREN’S RIGHTS:
RECOGNITION OF CULTURE IN LAW AND PRACTICE
With particular reference to The Family Law Court of Australia
By
Carol L Abela & Victor G Borg2
1
The purpose of this paper is to raise awareness of cultural concerns that affect outcomes for
children in relation to Family Law matters. It will examine perceived deficiencies in the current
system including deficiencies in legislation, in the application of law and in practice. How best
to facilitate and advance cultural and language considerations of persons from non-English
speaking backgrounds will be investigated. Consideration of cultural and language issues will
contribute to more positive and constructive outcomes and promote the welfare and the best
interests of children from diverse ethnic, cultural and language groups.
Legislation dominates all Family Law matters and is of necessity the point of first reference.
Unfortunately, even though judgements emerging from the Family Court clearly indicate that
many of the Court’s judges do consider cultural and language factors relevant and even
decisive in many cases3, the Family Law Act (the Reform Act) is sadly defective in this regard.
Although there is now a significant amount of legislation emerging throughout the various
jurisdictions in Australia that positively recognises language and culture4 , the Family Law Act
does little in this regard. It has the potential to be culturally divisive and demonstrates a
dominant white Anglo- Saxon cultural elitism that fails to reflect the multicultural nature of our
society. It appears to exhibit, through its omissions, a concept of a dualistic society made up
1
2
Carol Abela is a Lecturer in Law in the Faculty of Law at Newcastle University. She is a legal
member of the Mental Health Review Tribunal NSW and a Barrister and Solicitor. She is
chairperson of the Hunter Area health Service Board. Carol has co-authored several papers with
Victor Borg concerning the rights of persons from non-English speaking backgrounds.
Victor Borg is immediate past Chairperson of the Ethnic Community’s Council of Victoria. He
is president of the Maltese Community Council. He is a member of the Chief Justice’s Advisory
Committee on Ethnic Issues . Victor has for many years in numerous diverse areas advocated for
the rights of non-English speaking background persons. He has served on the Immigration
Review Tribunal., the Board of NAATI, the Federation of Ethnic Communities Council. He is a
Barrister and Solicitor who conducts his own legal practice, his clientele are largely members of
ethnic communities.
3
See the more recent cases of BvR (1995) FLC 92-636, and also BvB : Family Law Reform Act
(1997) 92-754.
4
See for example, the various anti discrimination acts including the Racial Discrimination Act
(Cth), the Anti-Discrimination Act 1977 (N.S.W.), s.7, the Equal Opportunity Act 1984 (Vic.),
s.17, and also other legislation such as theMental Health Act 1990 (NSW) ss. 6, 41(5), 163,
275, 292; Workers Compensation Act 1987 (NSW) ss. 64, 125; Health Services Act 1988 (Vic)
ss. 9(e), 106; Intellectually Disabled Persons’ Service Act 1986 (Vic) ss. 8(3), 31, 63, 73, 76:
Mental Health Act 1986 (Vic) ss. 18, 25, 132, 140; Occupational Health and Safety Act 1985
(Vic) ss. 21(4)(e), 47, 53(a); Occupational Safety Health and Welfare Act 1986 (SA) ss. 21(2),
38(2), 48(6) and (7), 9(2); Workers Rehabilitation and Compensation Act 1986 (SA) ss.
22(2)(c), 90(6)(7).
largely of “the white “ culture and of the Aboriginal and Torres Strait Islander cultures. The
authors applaud the token inclusion of the reference in the Act to “ the lifestyle, culture and
traditions of Aboriginal peoples or Torres Strait Islanders”5 Aboriginal persons require and
deserve special consideration. They are the traditional landowners6 and oldest inhabitants of
Australia7. They have a complex culture, and hold a unique place in our society. The wrongs
of the white invasion in the late 1700s and the cultural genocide and disempowerment this
brought8 must at every opportunity be redressed. The Reform Act has rightly sought to
redress, in a small but significant manner, the earlier wrongs and tragedy to many Aboriginal
peoples’ and Torres Strait Islanders’ families and particularly children’s lives9.
It is important to note our system of justice and our Family Court operate within a society that
is now culturally diverse, made up of many cultures and languages. Australia IS a large
multicultural society, every language of the world is spoken and every religion is practised by
some group or individual10. Approximately 5.5 million immigrants from 240 parts of the world
have settled in Australia since the end of World War II 11. One in four comes from a nonEnglish speaking background (NESB). Our laws and the legal considerations upon which
determination of matters before the Courts are made, should reflect the multicultural nature of
our society.
Whilst our society is so culturally diverse, the justice system is a dominant white Anglo-Saxon
system derived from the United Kingdom, it is adversarial and of necessity, institutionalised.
There are accepted hierarchies, patterns of behaviour and strict boundaries in relation to what
5
Family Law Act Section 68(2) (f)
6
Aboriginal people are the traditional custodians of the land. They have a strong cultural and
spiritual attachment to the land and sea. This relationship provides the essential foundations of
their identity and spirituality as indigenous Australians (The Path to Reconciliation, The
Commonwealth of Australia 1997 at 19).
7
There is evidence from rock engravings of Aboriginals living in Australia 45,000 years old.
These are the earliest dated petrographs. See HREOC Report Bringing Them Home.
8
See for example Pat Swan, 200 years of Unfinished Business, NSW Mental Health Policy.
Appendix III. and the discussion and findings in HREOC Report Bringing Them Home 1997.
(British Colonisation began on 26 January 1788 at Sydney Cove).
9
This is not the topic of this paper, but the authors have felt obliged to briefly mention this
because of the past injustices suffered in our society by Aboriginal and Torres Strait Islanders
peoples. They do not believe that the legislation goes far enough in this respect but comment no
further on omissions in the Act in relation to the lifestyle, culture and traditions of Aboriginal
peoples or Torres Strait Islanders.
10
Dept of Immigration and Ethnic Affairs, People and Progress, AGP 1995 at 3.
11
See above at 3-5.
European immigration to Australia is relatively recent, before the gold rush between 1850-1860,
the population was only 400,000. By 1900 the population had grown to 3.8 million (see
Australian Bureau of Statistics 1994 The Social Characteristics of Immigrants in Australia
at1.
is acceptable and unacceptable conduct and it acknowledges, supports and entrenches the
positions, behaviour, hierarchies that it recognises and understands. The Courts have in some
areas made advances in relation to cultural considerations, particularly in the Family Court and
in criminal jurisdictions (in relation to the ordinary person test in the defence of provocation12).
Largely, though, the Courts and the various assorted professionals connected with matters
before the Courts, are still struggling with their perceptions of subservient cultural groups13.
The system appears, at times, particularly to persons on non- English speaking background, to
have some difficulty recognizing or understanding other cultures and persons who are
culturally and linguistically different. Anecdotal evidence gathered from NESB persons14
indicates that they believe that their cultural difference may contribute to their lack of power
with in the justice system generally and particularly the Family Court. Without appropriate
consideration of culture, the Court aided by the various professionals, may disrupt their
children’s lives and their lives, and attack basic cultural values and worth. The perception of
many NESB persons is that their is a paternalistic and elitist attitude in some, that these
powerful persons outside the particular community or culture believe they hold the Holy Grail
and somehow know what is in the child’s, the client’s, the family units best interests15.
Children are born into a cultural context, their cultural identity and language are important
aspects of their personal emotional and social development as well as to the patterns of
behaviour they adopt 16. There are many problems concerning culture in relation to contact and
residence orders, many concerns arise in mixed marriages where one party is of a specific
ethnic background and the other from an anglo-saxon or different cultural background. The
priorities of the party from the dominant anglo-saxon background, or the culture of the parent
with whom the child resides, frequently appear to the NESB parties to dominate outcomes.
12
Ethnic or cultural characteristics are mentioned in many cases including Masciantonio v the
Queen. Mc Hugh J noted Masciantonio that “ The ordinary person standard would not become
meaningless, however, if it is incorporated the general characteristics of an ordinary person of
the same age, race, cultureand background as the accused on the self-control issue.Without
incorporating those characteristics, the law of provocation is likely to result in discrimination
and injustice. In a multicultural society such as Australia, the notion of an ordinary person is
pure fiction. Worse still, its invocation in cases heard by juries of predominantly Anglo-SaxoCeltic origin almost certainly results in the accused being judged by the standard of self-control
attributed to a middle class Australian of Anglo-Saxon-Celtic heritage, that being the stereotype
of the ordinary person with which the jurors are most familiar”.
13
If one accepts that the white Anglo-Saxon culture is dominant, it follows that all other cultures to
a greater or lesser extent are subservient.
14
The insights in this paragraph derive from discussions with various religious and other
representatives of ethnic communities, such as the Maltese community, the Muslim
communities, the Turkish community, the Greek community, the Vietnamese, the African,
Arabic and Yugoslav communities for various reasons they did no wished to be named.
15
Ibid.
16
See discussions by Daniel Stepniak in “ Minority Values and the Reasonable Person of Torts”
presented at the 50th Conference of ALTA 1995.
Concerns about religious observance and the importance of contact with grand parents17 and
other members of the extended family may be overlooked or disregarded by lawyers,
counsellors and others. The party with whom the child resides (even where the parties are of
the same ethnic background) may prevent contact with the grandparents and extended family
members or the ethnic community because of the other party’s perceived breach of marital
obligations. This often results in the child being ostracised from the extended family and its
particular community.
Courts and the various professionals, who have dealings with children, rightly focus
paternalistic protection and beneficence on them, but children clearly do not have truly
independent rights within the Court, nor do some professionals dealing with children have the
capacity or willingness to turn their mind to all the appropriate considerations18. Children thus
are often doubly disadvantaged, before the Courts, in that they may belong to one of the
subservient cultural groups and also because they lack power and autonomy because of their
childhood. Thus there is a tremendous need for the Family Court and others, who deal with
matters that affect children’s lives19, to be to be especially vigilant in the matters that they give
consideration to. These matters of necessity must include culture and language.
The Family Court20 and other Courts now recognise that language and culture are both
relevant and appropriate considerations if the Court is to deliver a decision and promote a
solution that is truly in the best interests of the child. The Court endeavours to encourage
knowledge of cultural difference21 and must continue to engender positive attitudes about
cultural differences that encourages respect and tolerance. This will advance compassion and
understanding and also enhance the ability of the community and family members within our
community to live with the differences.
The issues of culture and the dilemma of deciding the appropriate culture within which to place
a child was discussed extensively, inter alia, in Goudge22,and further examined in some detail in
17
See discussion in Re C and D [1998] Fam CA decided 1 July 1998. The husband asserted that
the role of the grandparents was one of indulgence and bestowing love and attention on the child
and this was why he was not as attentive as he might have otherwise been. The court appeared
to accept this explanation
18
This is partly because of the drafting on S 68, as will be discussed later , in the authors view the
drafting could more positively encorporate cultural considerations.
19
Children are now a significant proportion of the population, they comprised 22% of Australia’s
population in 1992
20
See B and R (1995) FLC 92-636, and the numerous cases cited therein, particularly about
Aboriginal people and about more general and cultural issues. See also B v B supra and fn 12.
21
Chief Justice Nicholson has led many positive steps including the Chief Justices Advisory
Committee on Ethnic Issues, production of audio tapes in the Turkish, and those soon to be
produced in the Vietnamese, Cantonese, Macedonian and Arabic languages. Ethnic information
sessions and the appointment of Aboriginal consultants in the Northern Territory.
22
Goudge (1984) FLC 91-534
B and R23. The Court in B and R indicated that it was not appropriate to prefer one culture to
another but supported the views expressed in a “ more sensitive and contemporary way” by the
former Chief Justice Evatt24 that:
“The Court is reluctant to make value judgments as to the merits of
differing cultural, religious or ethnic heritage . . . In any event, these
children are of mixed race, and in so far as there are significant
differences between the cultural heritage and identity of each of their
parents, it is not for this Court to prefer one over the other on that
ground.
The submission put by the appellant, however, was not that a preference
should be expressed for the culture and background . . . that it should
be regarded as a positive feature, able to provide something worthwhile
to these children”.
These cases are very positive indications that cultural factors are to be given weight by the
Family Court in deciding the welfare of children. The Court notes:
“Many cases arising under the Family Law Act involve children who
have real connections with two different cultural, racial or religious
backgrounds. The principle that emerges from such cases is that while
neither culture is to be preferred over the other, both may be of
importance to the child. As a result, the implications of any order for
the continuing connection of the child with each culture need to be
considered”25.
Even though the Family Court does give some recognition to culture and cultural issues, (re
Aboriginal peoples and Torres Strait Islanders) this is not enough as it may depend on the ad
hoc application of these considerations by judges . This is demonstrated in the full court’s
decision in Re CP,26 the court’s criticism of the trial judge in the way he considered cultural
factors concerning Tiwi and other Aboriginal cultures is equally applicable to ethnic
communities, perhaps more so because there is no part of the Reform Act that specifically
requires judges or others to give any consideration whatsoever to the NESB child’s ethnic
religious and cultural background. The Court noted27, the trial judge failed to appreciate the
distinctiveness of the cultures, how the child acquired its cultural identity, how the community
conveyed and acknowledged cultural identity and the role of language. All these matters have
significance to the best interests of children who are from the diverse ethnic communities in
23
B and R ibid.
24
Goudge ibid at FLC pp.79,317-9.
25
See Goudge, cited in B v R ibid.
26
In re CP (1997) FLC 92-741
27
Ibid at 83,986 & 83,987.
our multi cultural society. To overcome these omissions, the possibility of the Courts routinely
calling for an independent report in relation to cultural issues should be expanded, as should
the possibility of a “New Zealand model”, where the Court has power to appoint a cultural
adviser to assist the court in its understanding of cultural issues in particular cases.
Alternatively, a cultural adviser may be permitted to sit with the judge hearing a case to advise
on cultural issues in the case28
Cultural and language factors such as those mentioned in Re CP above are necessary
considerations in all cases where culture is an issue and are of great significance. Of greatest
concern are all those numerous cases that settle prior to Court determination. The Family
Court has little or no input into these and the cases that settle by consent between the parties.
Amongst the goals of the Family Law Reform Act 1995 (the Reform Act), as the explanatory
memoranda and second reading speeches to the Reform Bill indicated, was a greater emphasis
upon the importance of parents being able to agree upon arrangements for their children, in
particular, the legislation makes provision for greater use of mediation, counselling and
arbitration and it facilitates the ability of parents to enter into their own legally binding
agreement by means of parenting plans which may be registered with the Court 29. It is the
legislation that directs professionals assisting with the formulation of parenting plans and
judges making parenting orders to relevant considerations. Unfortunately, in our view the
legislation is inadequate. Until there are many more positive overt directions within the Reform
Act requiring consideration of relevant cultural concerns outcomes for children from NESB
backgrounds, where culture is important, will not change significantly and much of the
acrimony between the child’s parents will be ongoing and perhaps increased.
The representatives of ethnic communities30 to whom we spoke indicated that whilst the
marriage subsisted culture and cultural matters were respected but once separation occurred
there was an apparent disrespect for culture in the upbringing of children. This only increased
the disharmony between the parties and confusion for the child because often one parent
emphasised and encouraged cultural links whilst the other disregarded the culture’s
importance. They also indicated that if the Court and the legislation gave due considerations
to cultural matters that both parties would be more ready to accept the decision of the Court
and it would help the child and lessen the acrimony between the parties. Some communities
even regarded counselling and mediation as a hostile procedure and often inflaming the
situation because of the lack of cultural awareness.
It is important that changes in practices in confidential court and other counselling are further
28
This is similar to models proposed in some jurisdictions concerning objective medical experts in
personal injury cases. This procedure occurs in the UK in insurance cases. It also occurs in
Belgium in civil cases where an independent person sits adjacent to the judge, who represents
community interests and gives advice to the Judge on request.
29
See discussions in B v B: Family Law Reform Act (1997) 92-754 at 84,213.
30
Ibid fn 14
advanced. If at all possible, cultural awareness and considerations should be understood prior
to the counselling commencing. Further ethnic communities consider that it would be
desirable for counselling to take place in familiar surrounding (such as for example in an ethnic
community centre or the Migrant Resources centre). Ethnic communities also believe that
ethno-specific professionals and religious leaders should also be involved to assist in the twoway communication and understanding processes31.
As we are suggesting changes to legislation, it is important to examine the Family Law Reform
Act 1995 and origins of the new Part VII. Replacement of the old Part VII was the major
objective of the Reform Act and the new Part VII was influenced to some extent , inter alia,
by the United Nations Convention on the Rights of the Child32.
The declaration of the United Nations Convention on the Rights of the Child (UNCROC) was
ratified by Australia in January 1991 long after the initial enactment of the Family Law Act but
well prior to the Family Law Reform Act 1995. It has greatly influenced much legislation
concerning children throughout the world & emphasised not only the importance of the
interests of the child as paramount but, inter alia, the significance of taking into account the
traditions and cultural values to protect the harmonious development of the child33.
The Reform Act takes account of more general principles enunciated in UNCROC and the
Court in B v B has noted the relevant articles as 2(1), 3(1)(2), 7(1), 9(3), 18(1)34 The Reform
31
Ibid.
32
Which entered into force as a declared instrument under s.47(1) of the Human Rights and Equal
Opportunity Commission Act 1986 on 13 January, 1993. See discussions in joint judgement of
Nicholson CJ, Fogarty J and LindemayerJ in B and B (1997) FLC 92-755 at 84,178.
33
See Preamble UN Convention on the Rights of the Child (UNCROC) 1989.&esp. Art 20 & 30.
The authors of this paper believe that not sufficient account has been taken of this convention.
34
“Article 2(1). States Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination of any kind,
irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language,
religion, political or other opinion, national, ethnic or social origin, property, disability, birth or
other status
Article 3(1) In all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.
Article 3(2) States Parties undertake to ensure the child such protection and care as is necessary
for his or her well-being, taking into account the rights and duties of his or her parents, legal
guardians, or other individuals legally responsible for him or her, and, to this end, shall take all
appropriate legislative and administrative measures.
Article 7(1) The child shall be registered immediately after birth and shall have the right from
birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be
cared for by his or her parents.
Article 9(3) States Parties shall respect the right of the child who is separated from one or both
parents to maintain personal relations and direct contact with both parents on a regular basis,
except if it is contrary to the child's best interests.
Article 18(1) States Parties shall use their best efforts to ensure recognition of the principle that
Act exceeds the standard referred to in article 3(1) that the best interests of a child shall be “a
primary consideration”. Consistently with the long established position in Australia it provides
that it must be the “paramount consideration”. Further, in contrast to the inclusion of reference
to 'rights' of a child's parents in article 3(2) and other articles of the Convention, the Act omits
all such references35.
The Convention had many other articles, significant to culture is Article 20(3) which provides
that where a child is temporarily or permanently deprived of his or her family environment, or
in whose best interests cannot be allowed to remain in that environment that the child should
be provided with alternative care. When considering the type of care that could be appropriate
“ due regard shall be paid to the desirability of continuing in a child’s upbringing. … to the
child’s ethnic, religious, cultural , and linguistic background.”36
Articles such as Article 20(3) and Article 30 of the Convention which indicates that where a
child belongs to an “ethnic, religious or linguistic minority or [is a ] person of indigenous
origin” that the child shall not be denied the right . . “ in community with other members of his
or her group, to enjoy his or her culture, to profess and practice his or her own religion, or to
use his or her own language.”37 are not in any way specifically included in the Reform Act.
How are matters of this nature reflected in the Australian Family Law Act (the Reform Act)
which expresses its paramount consideration as being the child’s best interests? At the outset it
should be said that they are not adequately covered in the Reform Act, this so despite the
almost universal acceptance of the UNCROC and the pronouncements of the Minister in the
House of Representatives in the second reading speech on the Family Law Reform Bill (No.2)
199438the Minister stated:
"In December 1990 Australia ratified the UN Convention on the Rights
of the Child. That convention contains a number of basic rights in the
raising and development of children towards adulthood. The objects
clause to the new part VII of this bill gives recognition to such rights by
specifying a number of such rights that should be observed in any
agreements or decisions concerning children."39
both parents have common responsibilities for the upbringing and development of the child.
Parents or, as the case may be, legal guardians, have the primary responsibility for the
upbringing and development of the child. The best interests of the child will be their basic
concern."
See discussion in B v B ibid 84,182 and ff.
35
See discussion in B v B ibid.
36
Ibid Article 20 UNCROC
37
Ibid Article 30.
38
39
8 November, 1994 Hansard p.2759
This quote from
joint judgement of Nicholson CJ, Fogarty J and LindemayerJ in B and B
Further although the policy of multiculturalism espoused by various governments, calls for
diverse values to be recognised and protected in law40, in this very important piece of
legislation, the legislators fail to recognise significantly these diverse values.
It is clear that in numerous other areas that the Act is lacking and could easily have included
cultural considerations and that there are numerous sections in Part VII that require
amendment41 in line with aspects of the provisions of the UNCROC such as Article 20(3) and
Article 30. With amendments relating to culture, positive outcomes will be enhanced for
children within families where culture and language plays a significant role in their life, their
family’s life, and their social structure. The precise wording of the amendments is unimportant
but they should certainly encompass some of the words and sentiments of Articles 20 and 30
of UNCROC.
Perhaps to demonstrate by some examples, the Act identifies that the best interests of the child
are paramount, and that section 68F indicates the factors that influence how a court determines
the child’s best interests, the underlying determination is guided by the objects and principles
of Part VII enunciated in section 60B. Thus the two most appropriate amendments to suggest
are to section 68F and also to section 60B.
Firstly, section 68F(2), because it contains the only mention of cultural considerations in the
Act. It obliges the Court when considering the best interests of the child, among other things,
to take account of any factors (such as the child’s maturity or level of understanding) that the
court thinks are relevant to the weight it should give to the child’s wishes42. Section 68F(2)(f)
in Part VII of the Reform Act does rightly place emphasis on the child’s background
particularly any need to maintain a connection with the lifestyle, culture and traditions of
Aboriginal peoples and Torres Strait Islanders 43. Even this token is disappointing to ethnic
communities in this country in that this subsection 68F has been drafted in such as way as to
exclude even general reference to other cultures or languages. An amended 68F (2) (f) is
desirable and preferably could encompassed some of the sentiments of the UN Convention,
(1997) FLC 92-755 at 84,179. The judges also refer to similar sentiments in Explanatory
memorandum in the House and Senate expressing the same or similar sentiments.
40
See Dept of the Prime Minister & Cabinet & Office of Multicultural Affairs, National Agenda
for a Multicultural Australia: Sharing Our Future 1989.
41
Especially sections 60B (2), 62B (3), 62 C (1), 62 D, 62E, 62F, 62G(2) (4), 63B (b) (d), 63C,
65L.
S68F(2)(a).
42
43
68F. (1) Provides “Subject to subsection (3), in determining what is in the child's best interests,
the court must consider the matters set out in subsection (2).
Under subsection (2) (f) The court must consider, inter alia:
“(f) the child's maturity, sex and background (including any need to maintain a
connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres
Strait Islanders) and any other characteristics of the child that the court thinks are
relevant”;
such as:
68F. (1) Subject to subsection (3), in determining what is in the child's
best interests, the court must consider the matters set out in subsection
(2).
(2) The court must consider:
......
(f) the child's maturity, sex and background (including the
desirability of continuity in a child’s upbringing and the
child’s ethnic, religious, cultural, and linguistic
background and including44 any need to maintain a
connection with the lifestyle, culture and traditions of
Aboriginal peoples or Torres Strait Islanders) and any other
characteristics of the child that the court thinks are relevant;
OR
(f) the child's maturity, sex and background (including the
right in community with other members of his or her
group, to enjoy his or her culture, to profess and
practice his or her own religion, or to use his or her own
language45
and including any need to maintain a
connection with the lifestyle, culture and traditions of
Aboriginal peoples or Torres Strait Islanders) and any other
characteristics of the child that the court thinks are relevant;
Section 60B (1) and (2) are the most important provisions of Part VII, that must of necessity
control and direct all actions by judges and other professionals in relation to preparation and
making of orders and agreements and also counselling. They decree the objects of Part VII
(s60B(1)) and the principles underlying these objects (60B(2)). One of the most important
suggested amendments regarding culture would of necessity have to be to section 60B(2), the
suggested amendment would then form part of the principles underlying the objects of Part VII
and would be relevant to many determinations or consideration pursuant to provisions in Part
VII.
60B(2) The principles underlying these objects are that, except when it
is or would be contrary to a child's best interests:
(a) children have the right to know and be cared for by both
their parents, regardless of whether their parents are
married, separated, have never married or have never
44
45
Derived from Article 20(3) .The authors note that in UNCROC this words are used in
circumstances where a child is temporarily or permanently deprived of his or her family
environment, or in whose best interests cannot be allowed to remain in that environment that the
child should be provided with alternative care. It appears to the authors that a child’s family
environment is so changed by the breakup of a marriage and separation of a child’s parents that
these words are appropriate to use
From Article 30 UNCROC
lived together; and
(b) children have a right of contact, on a regular basis, with
both their parents and with other people significant to
their care, welfare and development; and
(c) parents share duties and responsibilities concerning the
care, welfare and development of their children, and
(d) parents should agree about the future parenting of their
children and when considering solutions due regard
shall be paid to the desirability of continuity in a
child’s upbringing and the child’s ethnic, religious,
cultural , and linguistic background
OR insert
(c) children have the right in community with other
members of his or her family or group, to enjoy his
or her culture, to profess and practice his or her own
religion, or to use his or her own language.
(d) parents share duties and responsibilities concerning the
care, welfare and development of their children; and
(e) parents should agree about the future parenting of their
children.
At this point it is also important to note that it is not always easy for a Court or others to
ensure cultural or other aspects essential to a child’s development and well being are
incorporated into its deliberations.
Brennan CJ in Marion’s case46 pointed to the difficulties in ascertaining the best interests of
children. He asserts:
“where ethical principles remain controversial and where each case
turns on its own facts, the law should not pretend to too great a
precision. Better, it might be said, that authority and power be
conferred on a suitable repository . . . . to decide these difficult
questions according to the repository's view as to the best interests of
the child in the particular circumstances of the case. In that way, it can
be said, the blunt instrument of legal power will be sharpened
according to the exigencies of the occasion. The absence of a
community consensus on ethical principles may be thought to support
this approach. But it must be remembered that, in the absence of legal
rules or a hierarchy of values, the best interests approach depends
upon the value system of the decision-maker”.
The authors of this paper support the view so strongly enunciated by Brennan J.
46
Sec. Dept. of Health and Community Services V JWB and SMB (1992) 175 CLR 218.
It is
suggested that the subjectivity, biases and value systems, which the decision maker necessarily
brings to her/his judgement, and “the empty rhetoric of best interests” can in part be overcome
in cases where the child’s ethnic, religious, cultural and linguistic background and any need to
maintain a connection with the lifestyle, culture and traditions are factors that the Court is
required to consider under the best interests approach. Brennan J suggests “that authority and
power could be conferred on a suitable repository . . . . to decide these difficult questions
according to the repository's view as to the best interests of the child in the particular
circumstances of the case”. The possibility of the Court having expert cultural advisors or
calling for an independent report in relation to cultural issues, as mentioned earlier could
overcome the adjudicators difficulties and assist the court in its understanding of cultural issues
in particular cases.
Another concern which may confront the Legislators and the Courts is whether taking account
of the evidence of culture offends the community ideal of equal justice before the law. Real
recognition of equality must be adaptable and calls for unequal treatment where the cultural
circumstances are not the same, differing considerations must be applied.
The Court noted in BvR47 that the doctrine of equality before the law requires that all people
receive equal treatment is only “superficially correct” and
“the principle is better expressed by saying that all people should be
treated with equal respect. By recognising that this represents the
essential content of the ideal of equality, one realises that equal justice is
not always achieved through the identical treatment of individuals.”
Brennan J recognised in Gerhardy v. Brown 48 that:
"Formal equality before the law is an engine of oppression destructive
of human dignity if the law entrenches inequalities " in the political,
economic, social, cultural or any other field of public life. 49
When parenting plans and orders and other matters concerning children are examined,
consideration must be given to factors such as the child’s ethnic, religious, cultural, and
linguistic background. This sort of equality before the law will only be completely effected in
the Family Law Jurisdiction when persons from diverse ethnic and linguistic groups are treated
with equal respect within amended legislation. Through positive directions within an amended
Family Law Act all professionals working in or connected with the jurisdiction will be greatly
influenced to give proper emphasis to these very important concerns.
47
48
49
B v R (1995) 92-636.
At 337
See B v R ibid esp the discussions at 82,413, 82,414 & ff.
We have so far directed our comments mainly to Part VII of the Act dealing with children. It
would be foolhardy to believe, however, that the best interests of children are confined to the
provisions of the Sections contained in that part. Obviously, matters relating to a parent’s
maintenance and a division of property become extremely significant and impact greatly on the
interest of the child.
Section 75 of the Act and, in particular, Section 75(2), sets out the matters, which the Court
shall take into account in considering an application for spousal maintenance. In fact, Section
75(1) is quite specific in stating that “the Court shall take into account only the matters
referred to in Sub-Section (2).” The matters to be considered by the Court in Section 75(2) are
also to be taken into account, in so far as they are relevant, in relation to an application for
alteration of property interest (Section 79(4)(e)).
Once again the Act is deficient in that there is no specific requirement for the Court to take
into account the parties’ background, culture, religious belief or language. No doubt one can
argue that the provisions of Section 75 (2) (o) which requires the Court to take into account
“any fact or circumstance which, in the opinion of the Court, the justice of the case requires to
be taken into account”, is a provision which permits the Court to give consideration to cultural
matters. It does not compel the Court to take such matters into account. Legal practitioners,
not being directed to do so by the Act, may regard matters of culture and ethnicity as quite
superfluous to Family Court applications. The matter of culture and ethnicity remains a
discretionary matter for the Court in its determination. In the view of ethnic communities these
matters are not given the acknowledgment or prominence they deserve. Culture, ethnicity, race
and language are all matters material to the parties in dispute and are influential aspects of
children’s lives.
Regardless of the provisions of the Act, there are many non-English-speaking-background
people who have entered marriages, generally overseas, in the expectation that certain codes of
behaviour relevant to that culture and upbringing will be adhered to. In this regard, many of
the ethnic people interviewed50 have indicated that one of the matters which has caused
ongoing conflict between the former spouses is the manner in which, quite often, the Family
Court deals with the matrimonial home. It is commonly believed by judges and many members
of the legal profession that, if at all possible, the matrimonial home should be preserved for the
resident parent, generally the wife. This provides a familiar environment for the children who
are well settled in the home, and in close location of schooling, entertainment and friends.
Quite often, little or no consideration is given to cultural aspects which attach to the family
home. There are jurisdictions overseas that specify that the matrimonial home, on the break up
of a marriage, is to be sold and split on a fifty-fifty basis, making appropriate provision for the
custodial/resident parent and children, and for the children to be properly maintained by the
other party, generally the husband. It is inappropriate, in many instances, to regard the family
50
See fn 14
home as simply as a matrimonial asset which one party retains and for which the other party
receives financial compensation. Many people born overseas give it a meaning far beyond and
unrelated to financial considerations. Both parties often strongly identify through the family
home. It is often a reflection of the culture and the family solidarity and the contribution of the
parties to the marriage and to the family unit. Upon irreconcilable differences arising between
the parties and the marriage completely breaking down, there is a strong expectation in ethnic
communities that the home which previously housed the family unit, and symbolises the unity
of the family, should no longer be retained. If a new way of life is imposed on the parties as a
result of the matrimonial breakdown, then many ethnic people would consider it appropriate
that the former matrimonial home be disposed of.
There is also the matter of pride or shame, which attaches to one of the parties having to leave
the matrimonial home. It gains significance as guilt and, in some ways, punishment. It is
extremely difficult in the circumstances for parties to accept the reality of the situation, where,
in some instances, a party continues to reside in the former matrimonial home and within a
short time of a Court decision, a new party is introduced into the relationship and into the
home. In many cases the Court is seen as conspiratorial within the process and this provokes
violence and a complete breakdown of any cordial relationship between the parties. It is
obvious that such a complete breakdown of relationship between parents and the ongoing
conflict which results, leads to a situation which is not in the best interests of the children.
The authors believe that the Family Court should re-think current practices in relation to the
division of property and be innovative in making Orders that are culturally relevant. It is in the
best interests of the children and the family to make Orders, which are culturally sensitive and
readily acceptable to the parties. One of the authors recently read a newspaper article, which
regrettably was mislaid, reporting on a determination in the Italian Courts, whereby the learned
judge decided that the children of the marriage should continue to reside in the matrimonial
home until they attained their majority, and it was for each of the parents to take up residence
in the matrimonial home with the children for a period of six months each year. The children
apparently felt quite comfortable with the determination. They did not feel that they had taken
sides, nor attached any guilt or responsibility for their parent’s separation and removal from
the home because the Court’s determination had the same effect on both parties.
Section 75 (2) should also be amended to contain a specific sub-clause along the lines
suggested earlier in this paper, in relation to Section 60B. Such an amendment will ensure that
the Court and legal representatives are induced and prompted to make and seek Orders outside
the accepted and traditional Orders and ones which will be culturally relevant and sensitive
(instead of the traditional standard form Orders that one finds in pro-forma documents
distributed in the foyer of the Court).
Family Court litigation should not allow for a “win-lose” situation, but should, through an
inquisitorial approach, aim at reaching a result or decision, which is fair to both parties, not
only from the perception of the Court, but also from the perception of the parties, and one that
is culturally acceptable in the particular community and one that enhances positive outcomes
for children.
Another matter that causes considerable concern relates to the mistaken belief that counselling
and settlements should, in many cases, only involve the immediate parties. Many people who
enter into relationships from an ethnic background, have done so on the basis of negotiation
and brokerage between families. Both sides of the family have an interest and, in many
instances, claim ownership of the relationship, including the children of the marriage. In some
cultures it is important that counselling and settlement matters are resolved on the same basis
of negotiation and brokerage between the parties and the extended families.
There are often many issues of status and power that attach to settlement. It would make for a
much happier conclusion if the parties to the marriage and their close family groupings both
believed that the compromise or settlement was not only in the best interests of the child, but
also in the best interests of the extended family. The comments made earlier in this paper,
relating to the dominant culture become extremely relevant in the context of a division of
property. There is a danger that judges may, unless properly advised, make decisions, which
are contrary or offensive to a particular culture and which have little prospect of being adhered
to. A greater distribution of assets may be of little comfort to a successful party and their
children if this results, in cultural isolation and has “broken bridges” of community support
(which children and parties often need to endure during the family’s fragmentation).
One of the significant factors which impact upon outcomes in the Family Court is financial
resources. The limited resources impact upon litigants as a result of a limited Legal Aid
budget. The Court, too, is under Government scrutiny having to meet targets and outcomes
similar to those of production lines. There is much rhetoric from politicians regarding the
sanctity of marriage and the family unit being at the core of community life. The severe
financial cutbacks result in greater disadvantage to the most vulnerable persons in our
community, these include persons from diverse ethnic, cultural and language background.
They further retard development in legislation and the Family Court, which would give greater
emphasis to culture, race, ethnicity and language considerations.
In the light of our concerns for children of diverse ethnic and linguistic backgrounds and the
issues we have raised, we make the following recommendations 1.
The Family Law Act must be amended so that the Court and legal professionals, in
relation to Part VII, Sections 79 (4) (2) and 75(2), consider matters relating to the
cultural and language background of children and the parties.
2.
All judges, registrars and Family Court staff must be fully acquainted with the extent of
ethnic diversity in multi-cultural Australia and sensitised to the cultural issues arising
from peoples culture and background.
3.
Reports of family and child counsellors and welfare officers must be required to take
account and make reference to cultural issues relevant to the dispute.
4.
Court counsellors should, when appropriate, involve other parties, such as close
relatives, religious persons, and specific social workers to advise and assist in the
resolution of disputes relating to parties from a diverse ethnic and linguistic
backgrounds.
5.
Provision should be made in the Act for a judge to be assisted by a person who is an
expert in a particular culture and in respect of which cultural issues have particular
relevance. The legislation should also provide for either party in the case to request
that a judge be assisted by such expert.
6.
Where culture is a material factor in a case, the parties should be required to provide
details in submissions to the Court.
7.
The Court should establish and maintain a register of experts on specific community
cultures as a resource to the Court and practitioners.
8.
The Court should, with appropriate Government resources, direct or commission such
research as it considers appropriate, especially in respect to matters relating to nonEnglish-speaking-speaking-background families.
9.
The Family Court must continue to expand its role in community education
programmes targeted at ethnic communities and delivered in community languages
through established and proven community networks, and ethnic radio broadcasts.
10.
Only NAATI-approved interpreters should be permitted to assist with interpretation
and translation in the Family Court (interpreters should not be permitted to be relied
upon on cultural issues).
11.
The Court should be encouraged to be innovative in its Orders, having due regard to
the cultural background of the parties in a particular case.