Nicholson, Justice Alastair --- "Family Court Initiatives with Aboriginal and Torres Strait Islander Communities" [1995] AboriginalLawB 53; (1995) 3(77) Aboriginal Law Bulletin 15

Family Court initiatives with Aboriginal and Torres Strait Islander Communities

by the Honourable Justice Alastair Nicholson, Chief Justice of the Family Court of Australia

The Family Court of Australia is keenly aware of the particular access to justice issues facing Aboriginal and Torres Strait Islander peoples in the area of family law. For too long there has been little understanding by people within the Court of the difficulties experienced by Aboriginal and Torres Strait Islander peoples.

Historically, indigenous peoples have had little contact with the Court and have been reluctant to seek out the Court's services. One of the reasons for this may have been lack of knowledge about the services the Court can provide, as well as an association of the Court with previous `welfare' policies which resulted in the removal of indigenous children from their families. It may also have reflected the internal methods Aboriginal and Torres Strait Islander people have for resolving family difficulties within their communities. When contact has occurred, it has usually been in the context of so-called mixed marriages, where the indigenous person may well have felt disadvantages in dealing with a `white' institution.

In various submissions to the Commonwealth Government about the reform of family law, I proposed that the Family Law Act 1975 (Cth) should be amended to require the Court, when making custody decisions involving children of Aboriginal and Torres Strait Islander descent, to take into account their traditional law and culture. It is pleasing that the Attorney-General, Mr Michael Lavarch, has recently accepted this suggestion and that the Government has announced its intention to introduce an amendment to the first Family Law Reform Bill in order to achieve this object.

Of course, the Court has always been able to take issues of identity, heritage, and culture into account in coming to a decision about what is in a child's best interests. As the recent Full Court decision of B & R & Separate Representative (Fogarty, Kay and O'Ryan JJ, not yet reported, 27 September 1995 at Melbourne) also makes clear, the Court has an obligation to receive evidence relevant to the unique experience of indigenous Australian peoples.

`What we have sought to demonstrate is that any argument which seeks to prevent the adduction of the type of evidence sought to be called in this case, or the attachment of any weight to such evidence, through a resort to principles of equality or non-discrimination, relies on a flawed and discredited understanding of those concepts. With respect to the trial Judge, if there is evidence led, or sought to be led, which illustrates that there is a set of experiences and difficulties which is particular to the aboriginal people of this country, it is factually incorrect to say, of Aboriginality, that there "is nothing different" or "nothing special" about it' (at page 52).

The recognition of such legal principle must be paralleled in the way the Court conducts its business. The purpose of this article is to describe the steps that have recently been taken by the Court in building relationships and developing services with indigenous peoples.

The Establishment of a Court Committee

The Court's progress has been guided in large measure by the Aboriginal and Torres Strait Islander Awareness Committee and the groups which have informed it. I set up the Committee after the Family Court's first National Conference in July 1993, at which Aboriginal and Islander representatives featured as presenters. The Committee is chaired by Justice Colleen Moore and has a brief to prepare a plan of action for the Court, and to improve liaison between the Court and Aboriginal and Islander peoples.

The work of the Committee since its inception has been devoted largely to establishing a consultative network with Aboriginal peoples.

Members of the Court's Aboriginal and Torres Strait Islander Awareness Committee have been consulting with a wide range of Aboriginal and Torres Strait Islander organisations throughout many regions of Australia, including metropolitan and provincial areas. The Committee has remained conscious of the need to develop projects in accordance with what the communities in different regions identify as desirable, rather than attempting to develop a single national response.

These contacts have invariably resulted in the establishment of forums to assist in the exchange of information between the Court and the community about services and needs. For example, in June 1995, at the request of the Nowra Aboriginal Interagency Group, a number of Court personnel attended a day workshop at Nowra organised by the Group. This was interactive, and enabled the Court to provide information about its services and practices generally, and to receive information about the barriers Aboriginal people face in accessing these services. Following this, the Court has received a request to conduct a similar workshop in the far South Coast of New South Wales.

Consultations with the Aboriginal Justice Advisory Committee in Queensland have resulted in requests for information workshops to be conducted in various centres of Southern and Central Queensland. Individual Court Registries throughout Australia have begun to establish links with various Aboriginal and Torres Strait Islander organisations and community groups.

Cross-Cultural Awareness

The Court has been working closely on cross-cultural awareness training with the Australian Institute of Judicial Administration (`the AIJA') in order to maximise the resources we each have available. Such programs have been delivered through the AIJA in Western Australia and Queensland, and other States will soon follow. It is understood that the AIJA will not have the opportunity to offer programs in the Northern Territory. It has therefore been up to the Court to arrange programs there for selected participants.

We have been conscious of the diversity of languages and cultures among groups in the Territory, particularly the differences between the Top End and the Centre. A constant theme of those with whom we consult is the need to address language barriers: there are about 20 major languages in the Top End and 5 in the Centre, and numerous dialects. To this end, discussions about training courses have been held with Batchelor College in Darwin and the Institute of Aboriginal Development in Alice Springs.

It is planned that Judges and Court staff will participate in a program conducted in the Top End and Centre of the Northern Territory in March 1996, organised by these two organisations and presented by Aboriginal and Torres Strait Islander people, which is designed to raise awareness of Aboriginal culture.

The Full Court is scheduled to sit in Darwin in November 1995 and has accepted an invitation to visit Batchelor College to participate in one of the first programs designed to train accredited Aboriginal interpreters.

A particular area of concern is the training of separate representatives who represent Aboriginal and Torres Strait Islander children. This requires knowledge of their cultures, and it is anticipated that training programs will be developed by these communities for this purpose.

A further identified need is the preparation of print and audio-visual materials that provide information to Aboriginal and Torres Strait Islander peoples in a format which is more readily identifiable to them, and in appropriate cases, translated into local languages. This will be done in consultation with Aboriginal and Torres Strait Islander organisations and community groups.

Northern Territory

A further development has been the creation of four identified positions for Aboriginal Family Consultants for two pilot projects, one in Darwin and one in Alice Springs. The pilot projects arose from widespread and intensive consultations with Aboriginal groups in Darwin and in Alice Springs. They identified the need for a bridge between the Court and the communities as a priority.

The options arising out of those consultations could be broadly described as falling into two models:

1. the employment of Aboriginal people within the Court to provide assistance to the Court and to individual litigants, and to provide information in the community about the Court and its services; and

2. negotiations with existing Aboriginal and Torres Strait Islander agencies to use staff to provide a wide range of services to the Court and the Aboriginal and Torres Strait Islander people.

The majority option was for Aboriginal and Torres Strait Islander people to be employed within the Court, attached to the Court Counselling service, and to work as `Family Consultants'. The Aboriginal Family Consultants will have an educative role in relation to both Court staff and the Aboriginal communities, assist with the Court's interface with the communities, and work with and assist the Counsellors when Aboriginal people access the Court.

The project for the Darwin region consists of two Family Consultants - one male and one female, to respond to cultural needs associated with women's business and men's business - who will be attached to the existing Counselling service within the Registry. Their area of work will encompass the whole of the Top End and extend down to Katherine. The project is due to commence in late 1995 or early 1996.

The Alice Springs project will commence operation at the same time. At present the Counselling service at Alice Springs is provided by the Darwin Registry staff by monthly visits. This has been identified as insufficient and a permanent Counselling service has been created for Alice Springs. Culturally-appropriate premises are being selected with the assistance of Aboriginal representatives. The Family Consultants in Alice Springs - again, one male and one female - will be responsible for the broader geographic region of Central Australia, extending into northern South Australia and south-western Queensland.

During the initial 12 month period of the project's operation, which will be followed by an evaluation, the service in each centre will have the assistance of a Reference Group composed of self-selected representatives from the various Aboriginal organisations, community groups, and individuals which the Court has consulted during the project. The Reference Groups will have the dual role of oversighting the operation of all aspects of the program, as well as providing support and direction for the Aboriginal and Torres Strait Islander staff. They have already been involved in defining the role of the Family Consultants, and have assisted with drafting the job description, the selection criteria and the advertisement. A community representative will be on the selection panel for the positions.

It is recognised that the model currently used by Counsellors is not necessarily suitable for discussion with people from Aboriginal and Torres Strait Islander communities. They may wish to involve extended family members in discussions and may have difficulty in discussing private family details with non-indigenous Court Counsellors. Through the work of the Family Consultants, it is hoped a range of suitable models will be developed.

Northern Queensland and
the Torres Strait

In September 1994, I had the privilege of visiting the Torres Strait for the purpose of acquainting myself with problems in the area of Family Law affecting these island communities. I made that visit in company with Court staff, and was greatly assisted by the presence of Mr Steve Mam, the then Director of Policy of the IINA Torres Strait Islanders Corporation, together with Ms McRose Elu and Mr Francis Tapim. The Court is greatly indebted to Mr Mam and his colleagues for the advice and assistance that they have continued to give in relation to Torres Strait Islanders and their problems with the legal system.

While on Thursday Island there was a meeting with the Presidents of the Island Councils who also constitute the Torres Strait Regional Authority, together with representatives of the Thursday Island Municipal Council, including the Mayor, Mr Pedro Stephen, who is the first Torres Strait Islander to hold that office. There was also a meeting with the Mura Kosker Society, which is a group representing Ereob (Darnley), Mer (Murray) and York Islands where consultations took place with local people.

The discussions highlighted the particular difficulties that Torres Strait Islanders have because of the law's failure to recognise their traditional adoption practices. This gives rise to considerable difficulties over issues such as inheritance, birth certificates, and custody proceedings in relation to children. I was subsequently honoured to address the annual conference of Torres Strait Islanders in Sydney on these issues.

It was concerning to find an almost complete absence of legal services to these islands. The Magistrate's court sits on Thursday Island only and deals with any family law matters, but it is obviously difficult and expensive for people from the outlying islands to have access to it. The nearest Family Court sits in Cairns, which is over an hour's flying time from Horn Island (the airport for Thursday Island). This effectively means that residents of the Torres Strait are deprived of access to justice, so far as family law is concerned.

Following the visit, I made strong representations to the Commonwealth Attorney-General to set up a visiting Counselling service to the Torres Strait, and the Access to Justice Program funded the Court to employ an additional Counsellor for this purpose. Interviews are about to take place and that person is expected to be appointed by October 1995. One of the first roles of the Counsellor appointed will be to start discussion with relevant community members and organisations on how services can be most appropriately provided.

The Court's Counselling service in North Queensland - and the additional Counsellor in particular - will have the additional special responsibility of establishing links through liaison with a wide range of Aboriginal and Torres Strait Islander organisations in the general area. It is hoped that dual lines of communication between the Court and these two communities will ensure that information about the nature and scope of the Court's services are available to them, and that those services are relevant to the resolution of disputes between individuals within them.

We see this as only a beginning, and we would also like to extend Counselling services to the communities on Cape York and the Gulf of Carpentaria. In this regard, it was particularly pleasing to see the proposal in the Government's May Justice Statement which will enable the Court to employ four Family Consultants in North Queensland and the Torres Strait in 1996-1997. These will be Aboriginal and Torres Strait Islanders (male and female) and will enable the Court to provide much more relevant services to people in the area from those communities.

Judges too will travel, if required, to the Torres Strait and other communities in North Queensland, so as to obviate the necessity for people to travel unreasonably long distances to avail themselves of the services of the Court. Arrangements were recently put in place to convene a sitting on both Thursday Island and Saibai in order to deal with a case involving Torres Strait Islander people, but the matter was resolved in counselling prior to the sitting taking place.

It must be appreciated, however, by Government that these services are costly and the Court is presently ill-equipped to provide them at the level that is required.

On a broader scale, the Court has been granted funds from DEET for the purpose of engaging a consultant to draft a recruitment and development strategy for Aboriginal and Torres Strait Islander people within the Court. Tenders have been received and it is expected the consultant will be engaged shortly.

Conclusion

A spirit of collaboration and respect is driving the Family Court and the communities in planning the provision of services. Its dividend has been a sense of optimism and goodwill, which will be essential as we embark on the stage of actually delivering the promise of culturally relevant and sensitive services.