INDIGENOUS FAMILIES AND FAMILY LAW

Studies show that Aboriginal and Torres Strait Islander children under 15 years old are more likely than other Australian children to live with one parent. The need for specialised services for Aboriginal and Torres Strait Islander families was recognised in the Federal Civil Justice System Strategy Paper, published in December 2003 which identified that ‘many Indigenous Australians face both cultural and language barriers in dealing with the federal civil justice system, as well as difficulties accessing services where they live in regional, rural or remote parts of Australia’.

There have been a series of reforms recognising the specific issues facing indigenous family law parties:

A) In responding to the needs of Indigenous Australians amendments were made to the Family Law Act 1975 in 1996. These amendments required the Court, in determining the best interest of an Indigenous child, to consider, amongst other things, ‘any need’ for the child ‘to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders’.

B) Further amendments to these provisions were effected by way of the 2006 amendments to the Family Law Act 1975. The 2006 reforms, inter alia, introduced a separate provision (via s61F) into the Family Law Act that requires that in making a parenting order in relation to an Aboriginal child, “the court must have regard to any kinship obligations and child-rearing practices” of the child’s Aboriginal culture.

Australia’s family law legislation requires the Family Law Courts to make decisions based on the best interests of the children. The most important things they consider are:

• the benefit to children of having meaningful relationships with both parents, and
• the need to protect children from physical or psychological harm.

The law also recognises the importance of children keeping a connection with their Indigenous culture after family breakdown and separation. See section 60CC of the Family Law Act 1975.

The Court looks at many things when assessing best interests of Aboriginal and Torres Strait Islander children, such as:

• The lifestyle, culture and traditions of the children and their parents.
• The rights of a child to enjoy his or her culture, including the right to enjoy that culture with other people who share that culture.
• Any kinship relationships that may impact on the child.
• The child-rearing practices of Aboriginal and Torres Strait Islander families.

There are also a range of legal and relationship support services across the family law system that attempt to support Aboriginal and Torres Strait Islander families such as the Aboriginal and Torres Strait Islander Legal Services and the Family Violence Prevention Legal Services.

Evidence suggests that the family law system continues to be under-utilised by Aboriginal and Torres Strait Islander families. Usually two reasons are cited for this: firstly and primarily there is evidence of a lack of understanding of the family law system and secondly there is evidence of a resistance to engagement with, and even fear of, family law system services. There is an identified and ongoing need for more research, outreach and community education in this area.

If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

*The information provided in this website serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable legal team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.  

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