2 June 2011
Family Law Council Secretariat
3-5 National Circuit
Barton ACT 2600
To Whom it May Concern:
FVPLS Victoria is one of fourteen Family Violence Prevention and Legal Service (FVPLS)
units funded by the Commonwealth Attorney General’s Department to provide legal and
associated support services to Aboriginal and Torres Strait Islander victims/survivors of
family violence and sexual assault and to parents/carers of Aboriginal and Torres Strait
Islander children in thirty-one rural and remote locations across Australia. The FVPLS
national program commenced in recognition of the gap in access to legal services for
Aboriginal and Torres Strait Islander victims of family violence - predominantly women and
children. FVPLS Victoria is a stand-alone Aboriginal and Torres Strait Islander corporation.
As the key state-wide legal service for Aboriginal and Torres Strait Islander victims/survivors
of family violence and sexual assault, FVPLS Victoria is primarily concerned with
advancing legal rights and broader safety and well-being outcomes for this client group in the
family law system and other related legal services. Consistent with Victorian Aboriginal and
Torres Strait Islander family violence data with respect to victims, about 90 per cent of
FVPLS Victoria’s clients are women and children.
The position of FVPLS Victoria for this inquiry is informed by both our experience in the
provision of legal services and the experiences of Aboriginal and Torres Strait Islander
children and families in the family law system in Victoria.
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A SUMMARY OF FVPLS Victoria’s recommendations include:

Increase awareness in Aboriginal and Torres Strait Islander communities about family
law and options available to them:
- Address lack of connection with the court system
- Ensure that the rights of families are reinforced
- Ensure adequate and appropriate liaison support within the court system to
enhance knowledge of those using the family court system

Raise awareness among the legal practitioner community regarding culturally
appropriate matters impacting on their clients in family court system

Ensure that processes which include allocation of legal assistance, and in particular
ICL appointments, are culturally appropriate

Ensure that adequate resources are available for legal assistance to Aboriginal and
Torres Strait Islander people accessing the family court system especially through
culturally appropriate legal services such as FVPLS Victoria and the FVPLS national
program
We will be happy to discuss further any matters raised in this submission.
Yours Faithfully,
Antoinette Braybrook
Chief Executive Officer
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Aboriginal Family Violence Prevention and Legal Service Victoria
(‘FVPLS Victoria’)
Submission to the Family Law Council
Family Violence: Improving the Family Law System for All
Introduction
Statistics from both the Family Court and the Federal Magistrates’ Court indicate the
numbers of Aboriginal and Torres Strait Islander people accessing the courts are low. A
history of poor experiences with the justice system in the Aboriginal and Torres Strait
Islander communities generally, coupled with a lack of trust in the courts to be culturally
understanding, creates significant barriers to access to justice. The formality of the courts is
often intimidating for Aboriginal and Torres Strait Islander people and the historic
association between the family courts and ‘welfare’ raises fears that children will be removed
as a result of engaging with the court processes. In the experience of our clients, the Family
Court and Federal Magistrates’ Court are perceived as non-Koori friendly environments with
minimal respect for Aboriginal and Torres Strait Islander culture.
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FVPLS Victoria’s Recommendations:
Recommendation 1
That Aboriginal and Torres Strait Islander people be provided with the option
to access family law assistance through an Aboriginal and Torres Strait
Islander or FVPLS service prior to FDR screening
Recommendation 2
That FDR processes be culturally appropriate and that all FDR staff access
cultural awareness training incorporating family violence and gender issues
Given the high levels of family violence in Aboriginal and Torres Strait Islander communities
it is imperative that all Aboriginal people be referred to a dedicated Aboriginal legal service
or FVPLS.
In general, FVPLS Victoria takes the position that in circumstances where family violence is
present the FDR process is generally not appropriate for Aboriginal victims of family
violence. Our clients have highly complex matters where drug testing, psychiatric assessment
and the like are required and the FDR institutions generally do not have the ability to deal
with these issues. Our clients have also reported that when they disclose family violence in
the FDR process it is not dealt with adequately. For example, in one case where there was
significant family violence the FDR proposed a shared care arrangement.
In circumstances where Aboriginal and Torres Strait Islander people are undertaking FDR all
FDR processes should be culturally appropriate. Clients who have participated in FDR
processes report that rarely are cultural identity issues raised by the mediator. The FRC staff
should have cultural awareness training that incorporates family violence and gender issues.
Complex cultural issues, such as shame and fear of being reported to child protection, are a
significant barrier to disclosing family violence for Aboriginal and Torres Strait Islander
clients during the intake process. Consideration should be given to recruiting Aboriginal and
Torres Strait Islander consultants to support intake and risk management screening.
Recommendation 3
That Family Courts in states and territories should employ Aboriginal and
Torres Strait Islander liaison officers and other Aboriginal and Torres Strait
Islander staff
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FVPLS Victoria is supportive of the reintroduction of Aboriginal and Torres Strait Islander
liaison officers to provide culturally appropriate support and act as a conduit for
communication for cultural sensitivity. It is our belief that it will encourage attendance and
access to the Family Court.
Recommendation 4
Implement ongoing cultural awareness and family violence training for all
family consultants (internal and external) conducting family dispute resolution
and court report writers
FVPLS Victoria notes that family consultants and report writers are not being provided with
cultural awareness training. High-level ongoing Aboriginal and Torres Strait Islander
cultural awareness training should be provided for all Family Law Court staff that involves
connection with local Aboriginal and Torres Strait Islander communities (as has previously
occurred).
A process should be established within the court whereby specialist Aboriginal and Torres
Strait Islander cultural advice is available. This could potentially be established through the
introduction of Aboriginal and Torres Strait Islander consultants. The process should be led
and informed by local Aboriginal and Torres Strait Islander communities to reflect diversity
in each of the states and territories.
FVPLS Victoria is particularly concerned with how court report writers have dealt with the
issue of family violence and Aboriginal culture. Family report writers have demonstrated a
superficial understanding of cultural issues. The complexity of many Aboriginal and Torres
Strait Islander family law disputes, and the layers of trauma and disadvantage experienced by
many Aboriginal and Torres Strait Islander families, requires strong cultural understanding
and the dedication of sufficient time to the issues.
On a number of occasions FVPLS solicitors have seen family reports where cultural issues
are dealt with inappropriately or the issue of the child being Aboriginal is not addressed at all.
For example, in one case where the other parent was non-Aboriginal the recommendation
was made that the child’s cultural connections could be met by the non-Aboriginal parent
taking the child to NAIDOC week activities once a year. In another case where a report
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writer failed to address cultural concerns FVPLS Victoria’s solicitors had to make an
application for another report writer to fairly and adequately evaluate the case.
FVPLS Victoria’s clients have provided feedback that when they disclose family violence the
report writer does not adequately captured the true impact of family violence. Due to the
structure of Legal Aid’s funding FVPLS Victoria is generally unable to obtain reports from
private experts who have expertise in family violence and cultural issues.
Recommendation 5
That cultural awareness training be provided through continuing professional
development programs for other legal practitioners including counsel working
in the family law jurisdiction
FVPLS Victoria sees a need for cultural awareness training of legal practitioners in the family
law jurisdiction. In the experience of FVPLS Victoria’s solicitors opposing council often
have a limited understanding of cultural issues. Cultural considerations are often viewed as
irrelevant by opposing council, particularly when negotiating parenting agreements.
High-level and ongoing cultural awareness training should be implemented for Independent
Children's Lawyers. FVPLS Victoria’s solicitors have encountered ICL’s who do not
acknowledge cultural considerations when representing Aboriginal children as required when
applying the Family Law Act to Aboriginal clients. For example, an FVPLS solicitor
encountered an ICL who had limited understanding of the differences in community and
assumed a child attending with a non-Aboriginal parent at a general Aboriginal cultural event
is the equivalent to the child having contact with his Aboriginal family in another state.
Another ICL marked “not applicable” to the Aboriginal and Torres Strait Islander heritage in
an outline of the case document. This is clearly indicative of insufficient cultural awareness
training and a lack of sensitivity to Aboriginal cultural issues.
Recommendation 6
That cultural awareness training be provided for all Family Law Court Judicial
officers
The best interest of the child standard requires that an Aboriginal child has a right to maintain
a genuine connection to their culture and that the court weigh this consideration when
applying the Family Law Act to Aboriginal and Torres Strait Islander children and families.
In the experience of FVPLS Victoria’s solicitors, if a client introduces culture as an issue it is
often dismissed by the Court as not being genuine or it is overlooked. Although there are
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often a number of factors that are given consideration by the Court, the Court is required to
give consideration to Aboriginal cultural issues. In the experience of FVPLS Victoria’s
solicitors, the Court gives less consideration to cultural concerns in the deliberations.
Recommendation 7
That available child care facilities at the Family Court should be
strengthened
FVPLS Victoria regularly funds the costs associated with our clients in the legal process
such as travel, accommodation and child care costs associated with attending court. Limited
donations to our service are utilised for this purpose as we have no dedicated funding to
support the associated costs. Often our clients have fled family violence outside of the areas
they reside and have limited family or friends to support them. Frequently the assumption is
that other services are able to provide child care services when they do not.
Recommendation 8
That accessibility to Family Court and Federal Magistrates’ Court services be
improved in rural areas
Regional circuits are too infrequent and FVPLS Victoria’s solicitors have issues getting
clients to court. Often FVPLS Victoria has to cover the cost of travel for our clients to attend
metropolitan court hearings in Melbourne when we have a limited capacity to do so (as
discussed above).
Recommendation 9
That reforms to family law legislation and procedure be implemented to
ensure strengthened responses to family violence and to ensuring children’s
safety. That particular issues for Aboriginal and Torres Strait Islander children
and families be specifically considered in all proposed reforms
In the experience of FVPLS Victoria, the notice of risk of abuse forms do not adequately
address family violence in family law cases and rarely is a finding of family violence
provided. Frequently judicial officers are frustrated as to why our clients do not have
corroborative evidence. For example, a client of FVPLS Victoria provided a detailed affidavit
of the violence that had occurred. The judicial officer queried if the violence was “that bad”
and why our client had not gone to the police or the doctor.
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Recommendation 10
That a dedicated project examining Aboriginal and Torres Strait Islander
accessibility within the family law system occur that is informed by
Aboriginal and Torres Strait Islander people
Service providers have limited knowledge about the impacts of family violence in potential
family law matters because limited numbers of Aboriginal and Torres Strait Islander people
are accessing their services. FVPLS Victoria recommends dedicating a project to examine the
level of knowledge about family law matters within the Aboriginal community. We also
recommend that previous relevant initiatives inform this discussion.
FVPLS Victoria proposes this project should examine:
1) Access to family law legal assistance through dedicated Aboriginal legal services
or FVPLS services as the primary initial entry point to family law assistance;
2) The role of Family Relationship Centres and Family Dispute Resolution for
Aboriginal and Torres Strait Islander people, including an analysis of cultural
accessibility, family violence issues and access to legal representation; and
3) The impact of the prevalence of family violence as a factor in disputes involving
Aboriginal and Torres Strait Islander children and cross-jurisdictional issues,
particularly child protection and state family violence laws.
Recommendation 11
The development of processes and services within the Family Court which are
more culturally appropriate to Aboriginal and Torres Strait Islander people
Processes and services that are culturally appropriate should be developed and implemented
as soon as possible. These processes may include:



Dedicated judges, family liaison officers and family consultants with specialist
training and expertise for dealing with cases involving Aboriginal and Torres Strait
Islander children within the Family Court
the introduction of Aboriginal and Torres Strait Islander consultants to advise the
Family Court in decision making and to possibly conduct court ordered dispute
resolution
improved community engagement between the Aboriginal and Torres Strait Islander
communities and the Family Court
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Recommendation 12
That the Family Court develop processes at national, state and territory levels
to receive ongoing advice in relation to Aboriginal and Torres Strait Islander
accessibility generally
Neither the Federal Magistrates Court nor the Family Court have measures in place to
adequately address Aboriginal and Torres Strait Islander accessibility of the courts. A
contributing factor is that Indigenous family liaison officers are no longer employed in either
Court. Advisory committees at national and state/territory levels should assist with
developing these processes. It should be acknowledged that Aboriginal and Torres Strait
Islander communities are diverse, and that accessibility measures and requirements are likely
to differ according to the location. It is our understanding that an Indigenous steering
committee was established by the Family Court with no Aboriginal or Torres Strait Islander
representation.
Recommendation 13
That the national FVPLS program be strengthened through increased
resourcing to all communities (including urban) and further resourced to
ensure family law expertise in the support of Aboriginal and Torres Strait
Islander victims/survivors of family violence and sexual assault (mainly
women and children), or this be implemented through the introduction of a
national Aboriginal and Torres Strait Islander women’s legal program
For victims of family violence who are unable to raise funds for family law access there is
limited assistance. Additional funding and resources for dedicated Aboriginal and Torres
Strait Islander family law legal services and the FVPLS program nationally will increase
access to justice for this client group. Practical issues diminish attendance/access to court for
our clients including crisis issues such as housing, centrelink, counselling required as a result
of family violence and other health issues. By funding Aboriginal and Torres Strait Islander
family legal services the resource-intensive and long-term nature of the work would be
factored in.
For example, FVPLS Victoria has adopted a unique model of having a paralegal support
worker alongside a lawyer. It has proven to be highly successful in providing more holistic
services and broader client support. The paralegal support worker provides critical support
such as linking clients to appropriate services, scheduling appointments and ensuring clients
have access to transport to attend appointments. Also, paralegal support workers attached to
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legal services are in a unique position to provide intensive court support for clients of the
services. In the experience of FVPLS Victoria, this model of support enables clients to feel
more empowered during the course of legal processes.
Recommendation 14
That lawyers from Aboriginal Legal Services including the FVPLS program
be included on ICL panels
Last year VLA nominated two lawyers from FVPLS Victoria serve on the ICL panel.
FVPLS Victoria applauds this consideration and is supportive of similar actions being
formalised in all states.
Recommendation 15
That Legal Aid family law guidelines be reviewed to strengthen access to
justice for Aboriginal and Torres Strait Islander people, particularly women
and children experiencing family violence
VLA is in the process of reviewing funding guidelines for Family Law services. While the
focus of allocation is on categories where children are at risk, we expect the current proposal
will disadvantage our clients. This can be attributed to a lack of knowledge on the part of
grants officers within VLA regarding the complexity of cases involving Aboriginal and
Torres Strait Islander families and a reliance on the dispute resolution process to become a
precursor to court proceedings.
In the experience of FVPLS Victoria, Legal Aid's FDR process is a best practice model
because of its thorough intake procedures and the fact that clients are assisted by lawyers.
However, to make screening processes more effective for Aboriginal and Torres Strait
Islander clients it is critical that all staff receive cultural awareness training. Culturally
appropriate screening processes are particularly an issue with external providers. A number
of our clients have made it through the dispute resolution process because they have not
disclosed family violence. Staff who do not receive cultural awareness training are not trained
to ask the right questions that help overcome some of the complex cultural issues that
contribute to a general hesitancy to disclose family violence within Aboriginal communities.
We have also found that the dispute resolution process can generate questionable agreements
for our clients. In situations where no lawyers are involved, clients who have not had legal
advice before attend the family dispute resolution meetings unsure of what their options
might be.
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Recommendation 16
That legal service providers ensure improved community education for the
Aboriginal and Torres Strait Islander community about family law, and
funding for innovative education projects should be extended.
Recommendation 17
That a program to improve awareness within the Aboriginal and Torres Strait
Islander community about the role of the Family Court be established.
The implementation of more culturally appropriate family law and Family Court processes
would dramatically assist this initiative. Pamphlets and other information should be produced
by the Family Court that is directed specifically to Aboriginal and Torres Strait Islander
clients. This information would refer to the right of Aboriginal and Torres Strait Islander
children to maintain their connection with their culture and to any Aboriginal and Torres
Strait Islander-specific processes that the Family Court adopts.
Recognition of culturally appropriate family law would provide the framework to engage
with Aboriginal and Torres Strait Islander communities. Family Court processes must be
improved to accommodate the needs of Aboriginal and Torres Strait Islander people and
ensure communities:
(1) understand the concept of family law and outcomes of family law and
(2) believe that the intent of the court is in keeping with Aboriginal and Torres
Strait Islander values.
Recommendation 18
That a program of community education for Aboriginal and Torres Strait
Islander communities about the Family Court and family law be implemented
Recommendation 19
That cultural awareness training for the judiciary and Family Court staff
should include visiting Aboriginal and Torres Strait Islander communities
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