New family dispute resolution services for Aboriginal and Torres Strait Islander families
28 March 2022
The submission to the Attorney-General’s Department (AGD) in response to the New family dispute resolution services for Aboriginal and Torres Strait Islander families - Discussion Paper, was prepared by the Law Council of Australia.
The Law Council supports the establishment of new FDR services for Aboriginal and Torres Strait Islander families and supports the approach of building the capacity of Aboriginal Community Controlled Organisations (ACCOs) to deliver these services. However, the Law Council has reservations as to whether funding of $8.3 million is capable of meeting the level of need for FDR for First Nations families.
The first part of this submission contains introductory comments regarding the use of FDR in Australia and the accessibility of the family law system for First Nations peoples. The Law Council submits that access to and engagement with a culturally safe and appropriate family law system – including FDR – is fundamental to ensuring the safety, wellbeing and best interests of First Nations’ families, especially children.
The second part of this submission specifically responds to the questions in the Discussion Paper. Common themes which arise throughout this section include:
- meaningful consultation, and acceptance of the diversity and complexity of First Nations cultures and peoples, is essential for the effective implementation of any FDR program;
- the structures in which FDR services are provided must be culturally safe, flexible and robust;
- concepts of ‘family’ for First Nations peoples differ significantly to Western culture, as do approaches to communication and dispute-resolution;
- services delivering FDR in First Nations’ communities must endeavour to build trust in that community and will preferably be physically available on Country and embedded within an existing service in the community (e.g., a co-located health justice facility);
- First Nations clients in remote communities face different challenges and have different needs to those in urbanised areas;
- practitioners, support staff and external advocates in First Nations FDR settings should be required to undertake consistent cultural competency and safety training;
- the existing qualification and training requirements for FDR practitioners are unduly restrictive, particularly for First Nations peoples;
- activities directed towards forging links between ACCOs and appropriate Aboriginal and Torres Strait Islander legal services should be encouraged; and
- funding must allow for suitably experienced counsel, and accommodate the increasing trend towards pre-litigation mediation, as well as FDR within the litigation process.
The third part of this submission briefly canvasses matters which fall outside the scope of the Discussion Paper, but which the Law Council considers important to raise. These matters include instances where one, or some of the parties involved are Aboriginal or Torres Strait Islander, and the need for holistic family capacity building support services.