CALD families and family law

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Managing family justice in diverse societies
MacleanM and Eekelaar J
Oxford : Hart Publishing, 2013.

"The aim of this book is to explore what response the law has or should have to different family practices arising from cultural and religious beliefs. The issue has become increasingly debated as western countries have become more culturally diverse. Although discussion has frequently focused on the role Islamic family law should have in these countries, this book seeks to set that discussion within a wider context that includes consideration both of theoretical issues and also of empirical data about the interaction between specific family practices and state law in a variety of jurisdictions ranging from England and Wales to Bangladesh, Botswana, Spain, Poland, France, Israel, Iran and South Africa. The contributors to the 17 chapters approach the subject matter from a variety of perspectives, illustrating its complex and often sensitive nature. The book does not set out to propose any single definitive strategy that should be adopted, but provides material on which researchers, advocates and policy makers can draw in furthering their understanding of and seeking solutions to the problems raised by this significant social development."

Advisory report: Marriage Equality Amendment Bill 2012 and Marriage Amendment Bill 2012
Australia. Parliament. House of Representatives. Standing Committee on Social Policy and Legal Affairs
Canberra : The Parliament of the Commonwealth of Australia, 2012.

This Inquiry was established to investigate the provisions and legal issues of two marriage amendment bills put before the Senate on the 13 February 2012: the Marriage Equality Amendment Bill 2012 (by Mr Adam Bandt MP (Greens) and Mr Andrew Wilkie MP (Independent)) and the Marriage Amendment Bill 2012 (by Mr Stephen Jones (Labor)). Both of these bills aim to remove discrimination from the marriage law and enable same-sex couples to marry. This report presents the findings and recommendations of the inquiry.

The position of Australian Muslim women in polygamous relationships under the Family Law Act 1975 (Cth) : still 'taking multiculturalism seriously'?
Richards J and Esmaeili H
Australian Journal of Family Law v. 26 no. 2 Aug 2012: 142-173

While committed to principles of equality and inclusive of various cultural beliefs, the Australian legal system is unitary and does not recognise Islamic law or any other legal system. However, many members of our growing Australian Muslim communities, while complying with Australian law, may regulate their personal relationships, notably marriage, according to the legal system of Islam. Under the Australian family law system rules of Islamic law may be considered as matters of fact where relevant to the parties. Islamic family law contains both similarities and differences to Australian law with respect to marriage. One key difference is in the status of polygamous marriages, which are invalid under Australian law but valid under the religious law of Islam. This difference leaves the status of many Muslim women who are a subsequent spouse in a polygamous relationship as potentially that of a de facto partner. However, the recent transfer of de facto property jurisdiction to the family court system may not include all women in this form of relationship.

Improving the family law system for clients from culturally and linguistically diverse backgrounds
Family Law Council (Australia), Australia. Attorney-General's Dept.
Canberra : Attorney-General's Department, 2012.

This report investigates whether the family law system meets the needs of clients from culturally and linguistically diverse backgrounds in Australia and how the system could be improved. The report describes the family law system in Australia, barriers to access, current programs and initiatives of the family law system, legal literacy programs, service integration strategies, workforce development, flexible service delivery models, and considerations of cultural background in family law.

Good and bad Sharia : Australia's mixed response to Islamic law.
Black A and Sadiq K
University of New South Wales Law Journal v. 34 no. 1 2011: 383-412

There is much debate on the extent to which the common law systems of the west can and should accommodate and recognise the laws, norms, and values of different religions and cultures - in particular Sharia, the Islamic legal system and code of conduct. This article examines the Australian response to Sharia. It discusses legal pluralism and the different ways Muslims resolve conflict between state law and their faith, and contrasts the legal response in two different areas of law: finance and banking law and family law. These two areas can be accepted or accommodated with different degrees of success, with regard to community and legal attitudes on usury, interest, financial products, marriage, polygamy, divorce, inheritance, and child custody.

Separatist religious sects, the Family Law Act and shared parenting : an examination of cases involving the Exclusive Brethren.
Thornthwaite L
Australian Journal of Family Law v. 25 no. 1 Mar 2011: 54-72

The decision of Brown J in Peter v Elspeth, involving members of the Exclusive Brethren, throws light on the dilemmas and difficulties the Family Court faces in establishing viable shared parenting orders when one party belongs to a separatist religious sect. In order to explore the issues that arise from such cases, this article examines recent Family Court decisions concerning parents who belong to the Exclusive Brethren, a sect which, consistent with the sect's governing principles, not only refuses contact between children and ex-member parents, but has also been criticised as having engaged in litigation and obstruction attempts to prevent and sabotage parenting orders for the sharing of responsibility and/or time with children. In parenting disputes involving the Exclusive Brethren there are two particular issues which cause difficulties for parents, children and the Family Court. These concern the interpretation and determination of a 'meaningful relationship' between parent and child and the relationship between a child's best interests, and the particular religious beliefs, practices and lifestyle of the community in which they live.

Window into Shariah family law. Part 2, Aspects of divorce.
Black A
Family Relationships Quarterly no. 16 2010: 11-13

This paper provides a brief overview of key aspects of Islamic family law as it relates to divorce. A companion piece in the previous journal issue discussed on the diverse application and significance of Muslim family law and focused on aspects of shariah, or sharia, law as it relates to marriage. Both articles aim to provide a contextual framework for practitioners working with Muslim families in the family relationship services sector. Separate sections outline and contrast family law as it applies in Australia, providing some insight into the gulf navigated by Australian Muslims in regulating relationships within the context of a secular society.

Legal recognition of Sharia law : is this the right direction for Australian family matters?
Black A
Family Matters no. 84 2010: 64-67

Increasingly, Muslims have been making their homes in secular countries in the West. Their religion, Islam, which means submission to God, lays down a comprehensive code for life known as the Sharia (also written as Shariah), which has laws governing most aspects of a Muslim's daily life, including detailed laws on family and relationships. Muslims in secular nations still try to live by these laws but at times encounter difficulties when Islamic law is not readily reconciled with state law. Hence, there have been recurring requests, including in Australia, for formal state recognition to be given to Islamic law, especially for family law matters involving Muslims. Just as Canada, Britain and the nations of Europe grapple with this issue, so too is Australia. Muslims and non-Muslims divide on the issue. This article assesses the premise for Australia's 'one law for all' approach and canvasses the case for and against official legal recognition being given to aspects of Islamic law as the applicable law for Muslims in family law matters. It concludes that, on balance, the status quo should prevail.

Window into Shariah family law. Part 1, Aspects of marriage.
Black A
Family Relationships Quarterly no. 15 2010: 3-6

This article provides a brief overview of key aspects of Islamic family law as it relates to marriage. A companion piece in the next edition of Family Relationships Quarterly will focus on aspects of Shariah law (also written as Sharia law) as it relates to divorce. Both provide contextual background information for practitioners working with Muslim families in the family relationship services sector. Separate sections outline and contrast family law as it applies in Australia, providing some insight into the gulf that Australian Muslims must navigate in regulating relationships within the context of a secular society.

Protection and adoption of abandoned children in Malaysia : a comparative overview with Islamic law
 
Petaling Jaya, Malaysia : International Law Book Services, 2008

"[This book] explores and discusses various principles and rules governing the protection and adoption of abandoned children in Malaysia. It highlights the rules applicable under Malaysian law compared with the legal principles governing foundling [children] (taqit) in Islamic law ... Some of the aspects related to abandoned children, such as rights to custody, guardianship, maintenance, freedom, religious status, parentage, inheritance, distribution of property, and many others are discussed in this publication."

Cultural and religious beliefs and the best interests of children.
Benjamin R
13th National Family Law Conference handbook Melbourne, Vic Television Education Network 2008: 357-368

Concerns are often raised about how the Family Court can accommodate the differing beliefs and traditions of families from a diverse range of cultural and religious groups, particularly in regard to the best interests of the child. This paper examines how the Family Court takes into account differing social, religious and cultural backgrounds when dealing with applications in children's cases, including applications to decide who a child should live with and in determining questions of special medical treatment. The Family Law Reform Act 1995 and amendments under the 2006 shared parenting reforms both oblige the Court to consider the child's cultural heritage, beliefs, lifestyle and background in determining what is in the child's best interest. The paper discusses cases involving combative parents from disparate cultures and religions, and parents in dispute with each other or medical authorities over medical treatments for their children. The overriding concern of the Court is always the best interest of the child.

Children, medical treatment and religion : defining the limits of parental responsibility.
Humphrey T
Australian Journal of Human Rights v. 14 no. 1 Dec 2008: 141-169

The responsibility of parents for the medical treatment of their children raises significant and complex problems for the state, particularly in situations where their religion is at odds with modern medicine. This article seeks answers to the three most pressing questions in this largely underdeveloped field of the law: who should be the ultimate arbiter in the child's best interests in medical treatment cases?; what are the child's best interests, and how do the religious beliefs of the parents fit in?; and, is the current legal framework adequate? Addressing these issues is the first step towards formulating a just and comprehensible body of medical law for children.

Judicial consideration of culture in child-related proceedings under the Family Law Act 1975 (Cth).
Chew A
Australian Journal of Family Law v. 21 no. 2 Aug 2007 173-203

This article draws on sociological research, legal theory and case law to examine how cultural factors may be considered in child related proceedings in light of recent amendments to the Family Law Act 1975 (Cth). The article establishes the role and significance of culture in children's lives and evaluates the Act, identifying structural issues that may hinder judicial consideration of cultural factors. It then discusses the likely effect of these potential problems, acknowledging the considerable impact of ethnocentricity upon decision makers, and proposes suggestions for reform. The article concludes that while judicial consideration of cultural factors can never be a purely objective exercise, equitable outcomes may be better achieved by both a change in the legislation and in the cultural awareness of decision makers and the Australian community.

Time for change : Australia in the 21st century
Wright T and Robertson G
Prahran, Vic. : Hardie Grant Books, 2006.

A collection of 12 inspirational, provocative and insightful essays by prominent Australians on a wide range of topics including an Australian republic, the refugee issue, higher education reform, environmental sustainability and an Australian bill of rights.

Challenges to accessing the family law system.
Atwool N
Smyth, Bruce, ed. Richardson, Nick, ed. Soriano, Grace, ed. Proceedings of the International Forum on Family Relationships in Transition : legislative, practical and policy responses, 1-2 December 2005. Melbourne : Australian Institute of Family Studies, 2006. 0642395403: 254-257

The proposed Australian family law reforms reflect cultural difference and may increase accessibility for those from a culture other than the dominant one. This paper outlines benefits and potential barriers to accessibility to the family law system. It discusses moves that would help increase accessibility and examines some challenges to access in New Zealand.

The Malaysian experience.
Rahman A
Smyth, Bruce, ed. Richardson, Nick, ed. Soriano, Grace, ed. Proceedings of the International Forum on Family Relationships in Transition : legislative, practical and policy responses, 1-2 December 2005. Melbourne : Australian Institute of Family Studies, 2006. 0642395403: 209-218

Family law matters in Malaysia are governed by a combination of civil, Syariah (Islamic) laws, and Adat laws (non Muslim local customary laws). This paper provides an overview of demography and family in Malaysia, current policies and programs for healthy families and communities, and family laws for Muslims and non Muslims.

Provision in a financial agreement for no future spousal maintenance: recognition of potentially polygamous marriages.
Dickey A
Australian Law Journal v. 80 2006 288-289

The form that a provision in a financial agreement for no future spousal maintenance should take is discussed in the first part of this article. The relevant sections of the Family Law Act are examined. The second part of the article discusses recognition in Australia of a Pakistani marriage that is potentially polygamous.

Cultural diversity initiatives in the Family Court of Australia.
Mushin N
Australian Mosaic v. 13 no. 1 2006 37-39

The formation of the national cultural diversity committee by the Family Court of Australia in 2000 has opened the door for initiatives such as the review of barriers experienced by culturally and linguistically diverse clients, the collection of cultural and linguistic data, work to promote access and equity, and the release of a national cultural diversity plan. This article describes the Living in Harmony partnership, which is piloting community driven education strategies around the rule of law in Australia, the Australian legal system and family law, and which is focusing on communities from Afghanistan, Iraq, Eritrea, Ethiopia, Sudan, South Sudan and Somalia.

Australian democracy, law and justice: what has happened to the checks and balances? (PDF434K)
Nicholson A
Hobart, Tas : Social Action and Research Centre, Anglicare Tasmania, 2005

In this address, the 9th Anglicare Social Justice Lecture, the author explores the nature of justice and law in Australia, with particular reference to the current government. In a braod ranging essay he discusses examples such as the mandatory and unlimited detention of asylum seekers, particularly children; renewed debate about an Australia card; judicial appointments and interpretations of the Constitution; the provisions of Australia's new security legislation, and puts forward arguments for a Bill of Rights. He addresses access to justice issues, particularly for disadvantaged groups, with reference to legal aid and family law.

Minority ethnic parents, their solicitors and child protection litigation (PDF)
Brophy J, Jhutti-Johal J and McDonald E
London : Dept. for Constitutional Affairs, 2005.

"This study explores the views of solicitors representing minority ethnic parents, identifying some of the barriers to effective communication and exploring issues of racism and cultural variation in explanations of child maltreatment. It outlines parents' views about their solicitor, their statements and attendance at family courts, exploring whether parents felt the process was fair, whether they felt understood, and whether they experienced any racism"--Back cover.

Child welfare services for minority ethnic families : the research reviewed
Thoburn J, Chand A and Procter J
London : Jessica Kingsley Publishers, 2005.

This book reviews and summarises research on child welfare services for minority ethnic families in Great Britain. The outcomes of child protection interventions, foster care placements, and family support services are discussed, including cultural differences in child discipline versus abuse, interracial adoption, attitudes to social services and family courts, and racial discrimination or bias in service provision.

A last resort? The National Inquiry into Children in Immigration Detention.
Australia. Human Rights and Equal Opportunity Commission
Sydney, NSW : Human Rights and Equal Opportunity Commission, 2004

The National Inquiry into Children in Immigration Detention has rigorously assessed the experience of children in immigration detention against all of the relevant provisions of the Convention on the Rights of the Child (CRC). The Human Rights and Equal Opportunity Commission hopes that this information will provide a sound basis for assessing the appropriateness of the mandatory detention policy for Australia. This report sets out the methodology used for the Inquiry; provides some background statistics on the children who form the subject of the Inquiry; briefly sets out Australia's obligations under international human rights law; explains how those rights are enforced within the context of immigration detention; sets out Australia's immigration detention policy as it applies to children who arrive in Australia without a visa and assesses whether it complies with international human rights law; examines whether Australia's refugee status determination system properly takes into account the special needs of children; analyses whether the various rights to which children in immigration detention are entitled have been enjoyed within the detention environment; assesses whether children who are released from detention into the Australian community on temporary protection visas can enjoy their human rights; and sets out the Inquiry's major findings and recommendations. It also explains the key principles that should guide the development of new laws applying to children who arrive in Australia without a visa.

Children in immigration detention: the exclusion of the Family Court, and implications for the future.
Chisholm R
In: Beyond the horizon: conference handbook: 11th National Family Law Conference, Gold Coast, September 2004. Melbourne, Vic: Television Education Network, 2004, p365-397

The High Court's decision in 2004 that the Family Court did not have jurisdiction to release children from immigration detention is explained in this paper. The paper describes the facts of one case that involved the welfare of children in immigration detention, before discussing the decisions of the Family Court and the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v B. The paper then considers the current legal position of children in immigration detention in Australia and what it ought to be. It discusses our legal tradition and the protection of children, the need for a supervisory jurisdiction over children in immigration detention, and possible principles for protection of children in immigration detention.

An examination of Jewish divorce under the Family Law Act 1975 (Cth).
Williamson A
James Cook University Law Review v. 11 2004 132-158

In 2004 the Attorney General, Philip Ruddock, rejected legislation proposed by the Family Law Council that dealt with cultural and religious divorce, which refers to the requirements for divorce of a particular culture or religion that differ from Australian legal divorce requirements. This article challenges Ruddock's claim that such legislation was unconstitutional and that it would threaten Australia's no fault divorce system. It focuses on difficulties within the Jewish community, presenting a case law history and legislative history of cultural and religious divorce in Australia. It evaluates the proposed reforms, which it argues are needed to prevent parties suffering disadvantage.

Family law processes in South Africa: multiculturalism in a developing country and some comparisons with Australia.
Sinclair J
Australian Journal of Family Law v. 18 no. 3 Dec 2004 219-257

Family breakdown, child abuse, the emergence of alternative lifestyles and family forms, poverty and multiculturalism combine to confront South Africa with major challenges not only to the content of its laws, but also to the processes for dealing with substantial societal dysfunction. While vastly different, Australia shares a common colonial past and manifests, increasingly, similar societal changes and problems, albeit in more muted ways. Critically analysing the processes in place and evolving in the two countries, in an effort to provoke dialogue that may enrich the debates in both, is the central focus of this piece. Ultimately, it seeks to make a contribution to the betterment of the protection afforded to the family and its members, upon which so much depends.

Islamic Family Law (Federal Territories) Act 1984 (Act 303) : as at 20th June 2003
Malaysia., International Law Book Services. Legal Research Board.
Petaling Jaya, Selangor Darul Ehsan : International Law Book Services : Sole distributor, Golden Books Centre, 2003.

Community and cultural considerations in child abuse and neglect cases
Lindsey M
Carson City, Nev. : National Council of Juvenile and Family Court Judges, c2003.

This document is one of a three-part series designed to provide training materials to support judges and court personnel in delivering improved practice in child abuse and neglect cases. The focus in this program is on judicial leadership and activities which may be used to enhance awareness of community and cultural considerations of children and families appearing before the court in dependency cases.

The contribution of children to Australian administrative law (PDF)
Bryant D
Canberra : Centre for International and Public Law, 2003.

'Locating' families in a time of unprecedented mobility: recent developments in the field of international private law in Europe.
Foblets M
In: Cunnington, Judy ed. Distance, diversity, dislocation: families facing globalisation: International Conference, Sydney, Australia, 17-20 June 2002: keynote papers and chairman's report. London, England: International Commission on Couples and Family Relations, 2003, p26-45

What degree of recognition should family courts in Europe give to the family laws practised in migrant communities that clash with the domestic legal culture? The author identifies Muslim communities as among the most resistant to assimilation to the values of the majority society. She examines the internationalisation of family law in Europe today and its inability to handle the issue of recognition of non western legal cultures that claim legal protection. She discusses choice of law or conflicts rules, the role of judges in international family disputes, nationality, domicile and party autonomy, and then examines the protection of Muslim women within the realm of Belgian family law.

Cultural diversity and the Family Court: taking a responsive approach to the family law needs of a diversified Australia. (PDF48KB)
Nicholson A
Sydney, NSW: Family Court of Australia - Papers and Reports - Address to Managing Diversity Conference, October 2003, Online only

In many ways the clients and litigants who walk into the Family Court are a microcosm of Australia's national diversity, states the author. He refers to an audit on cultural diversity conducted by the Family Court in 1999 because 'we knew that we weren't doing enough to meet the needs of the people from different cultural backgrounds who use our services'. The audit identified a number of key issues that needed to be tackled if the Court is to better meet the needs of people from culturally diverse backgrounds. This was followed by a Roundtable Conference in April 2003 which was a first for the judiciary in Australia and was co-hosted by the Family Court and the Australian Multicultural Foundation. Its two major aims were to identify the good practice of multicultural organisations across Australia and develop partnerships which can develop and deliver services on behalf of the Court. The author reports on the Roundtable Conference and the issues that were raised, and how the Family Court is attempting to act on the suggestions that were made.

See more resources on CALD families and family law in the AIFS library catalogue

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