Family law matters are deeply personal and may be emotionally charged. For Aboriginal and Torres Strait Islander families, these challenges can be compounded by cultural considerations and historical disadvantage. This article provides a roadmap for lawyers seeking to effectively represent these clients. We speak with Kathryn Kearley, family lawyer and adjunct lecturer at the College of Law, about accessing culturally appropriate resources, building trust with clients, and ensuring family law proceedings are sensitive to cultural context.

Where are ATSI people located?

As of 2021, 812,728 people were identified as being of Aboriginal and/or Torres Strait Islander (ATSI) origin, according to the Australian Bureau of Statistics. This represents 3.2 percent of Australia’s total population. The majority - almost two-thirds - of ATSI people live in New South Wales and Queensland.

ATSI people are diverse, speaking 167 Aboriginal and Torres Strait Island languages at home. The Federal Circuit and Family Court of Australia (FCFCA) recorded an increase in the number of parties identifying as ATSI filing before the court.

“Between 2022-2023, almost 7 percent of final order applications involved an ATSI litigant, with the figure as high as 10-20 percent in registries in Cairns, Townsville, Newcastle, and Darwin,” Kathryn Kearley notes.

Exploring the role of Indigenous Family Liaison Officers  

“The FCFCA says this increase may be attributable to the engagement of Indigenous Family Liaison Officers (IFLO), who help ATSIC litigants engage with the court,” Kathryn says. “IFLOs have a key role in helping clarify the role of the family courts to ATSI clients.”

According to the FCFCA, IFLOs hold a dual function:

• to provide support to ATSI families accessing courts in family law matters
• to engage with local ATSI community and support agencies to raise awareness of the role of the court in family law matters

“The involvement of an IFLO aims to decrease the hesitance that ATSI people may have about accessing court services,” Kathryn explains. “An IFLO can make referrals to support services, connect litigants with legal services, help attend court events and provide information about the court. An IFLO can assist litigants in all aspects and stages of the case management process. And any party who identifies as ATSI has the option to utilise the assistance of the IFLO.”

More information on IFLOs is available here: Indigenous Family Liaison Officers | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)

Law Reform to Improve ATSI Access to Justice  

“In February 2022, the FCFCA Access to Justice Committee and the Reconciliation Action Plan (RAP) Committee reviewed the previous RAP to improve access to justice for ATSIC people,” Kathryn says. “In addition, the FCFCA Children’s Services (CCS) launched ‘Practice Guidelines on Working with First Nations Australians’ representing a continued commitment to ensuring court services are appropriately provided to families, having due regard to culture, family, and kin.”

The current RAP is here: Reconciliation Action Plan 2019 – 2021: Federal Circuit Court of Australia | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)

“In addition to positive changes to court services, the Australian Law Reform Commission (ALRC) reviewed the family law system and amendments reflecting their recommendations are now part of the law,” Kathryn says.

Recommendations made by the ALRC in 2019 included proposed amendments to Family Law Act 1975 (Cth) (the Act) so that when determining what arrangements promote the best interests of an Aboriginal or Torres Strait Islander child, a court must consider the child’s opportunities to connect with and maintain the child’s connection to, the child’s family, community, culture, and country.

For more information: alrc_report_135_summary_report_web_0.pdf

“On 6 May 2024, amendments to section 60CC(3) of the Act were introduced,” Kathryn says. “These amendments include standalone ‘best interest’ factor that requires the court to consider the right of ATSIC children to enjoy their culture, as well as the support they will receive to connect to that culture. This operates in addition to the general considerations in subsection 60CC(2).”

What are ‘Specialist Indigenous Lists’?  

In addition to changes to the law, the FCFCA practices take account of the needs of ATSI people.

“The FCFCA provides significant resources and prioritises greater access to justice for family law litigants who identify as ATSI. One key example of this is the Specialist Indigenous Lists (SIL). This is part of the Courts’ commitments under the RAP and aims to improve court service delivery for ATSI families who have a family law issue to resolve,” Kathryn says.

The SIL adopts a degree of informality and has specialised support services available on the day.

“In some locations, IFLOs help parties to understand and engage with court processes and connect parties to legal and other support services,” Kathryn explains. “ATSI parenting applications can be listed in the SIL to enable ATSI support services (legal and others) to help families and gain greater access to the court system.”

“Now the SIL has expanded to Lismore and to Coffs Harbour in NSW. While geographically there are some differences in the way each list operates within that local area, the objectives and aim of the lists are the same, regardless of location.”

For more information:

• Indigenous list | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)
• Media Release: Indigenous families in the Lismore region to benefit from specialised services dedicated to helping families navigate the family law system | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)

The FCFCA and other organisations also produce a range of resources including brochures to help ATSI clients get better access to the family law system.

For example:

• Aboriginal and Torres Strait Islander families and the Court | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)
• Coercive Control | Attorney-General's Department (ag.gov.au) - First Nations  

“The Family Law Service for Aboriginal Communities (FamAC) is an Aboriginal-led service of Legal Aid NSW comprising of lawyers and allied professionals, who can assist  Aboriginal and Torres Strait Islander families and children in family law and care and protection matters,” Kathryn says.

“For family lawyers working with ATSI people, there are many resources produced by various law societies which can inform and act as tools for practice.”

These include:

• Working with Indigenous Clients | The Law Society of NSW
• Law Society of the Australian Capital Territory - Working with indigenous clients (actlawsociety.asn.au)
• Indigenous Protocols for Lawyers.pdf (lawsociety.com.au)
• First Nations Vocabulary – using culturally appropriate language and terminology | Australian Public Service Commission (apsc.gov.au)
• Aboriginal Legal Service (NSW/ACT) Limited (alsnswact.org.au)

“The National Reconciliation Week theme for 2024 is ‘Now More Than Ever’,” Kathryn says. “It’s a theme that reminds lawyers that access to justice and the rights of Aboriginal and Torres Strait Islander people continues.”

Please see our CPD Digital Subscription courses below:

• Cultural competence, communication and negotiation | 1 hour | 1 CPD Point 
• Cultural awareness for lawyers - Aboriginal clients and stakeholders | 1 hour | 1 CPD Point 

By Wenee Yap, Legal Features Writer for the College of Law