Winter Forum ‘CALD and African-Australian Communities within Family Law: Access and Equality from a
The VFLPN Winter Forum focused on the theme of ‘CALD and African-Australian Communities within Family Law: Access and Equality from a Woman’s Perspective’. The forum was the long awaited partner to a similar event held at the Dandenong Registry in 2014 regarding African male perspectives.
Keynote Speaker: Kathrine Deng from InTouch Multicultural Centre Against Family Violence
Kathrine provided an informative break down of South Sudanese culture and detailed how marriage is understood within the South Sudanese community. The juxtaposition between Sudanese and Australian matrimonial traditions framed the main talking points of the forum.
Kathrine explained that South Sudan has a population of 7.5 to 10 million people. The major religions are traditional indigenous religions of Sudan or Christianity. The official languages of South Sudan are Juba Arabic and English. Nevertheless, there are 64 tribes with their own language. The three major tribes are Dinka, Nuer and Chollo/Shilluk who are identifiable from their distinct traditional markings.
South Sudanese migration to Australia begun in 1995, presently there are approximately 40,000 South Sudanese people residing in Australia. The majority of South Sudanese migrants living in Australia are members of the Dinka and Nuer tribes – in Melbourne the Dinka people tend to live in the Western Suburbs whereas Nuer people tend to live in the Eastern Suburbs. The majority of South Sudanese migrants to Australia are Christian.
Marriage and relationships in South Sudan tend to be conservative where sex before marriage and de facto relationships are considered unacceptable. Marriages are arranged with the man seeking and choosing a wife – marrying for love is more likely to be accepted by the smaller tribes than in the larger tribes. While it is not forbidden to marry between tribes, the practice is not widely accepted.
Under South Sudanese law, the groom and bride must not share any blood relatives for at least six generations and children are taught their family history at a young age to ensure that this doesn’t happen. Polygamy is acceptable and many men have at least two wives.
Marriage is subject to a dowry system with significant value placed on the cow as dowry currency. The groom and his family pay for the bride in cows to the bride’s father – the taller the girl, the more cows will be paid for her.
Nuer dowry payments are subject to law which prescribe between 30 and 50 cows as a given price for a bride. Dinka, on the other hand, base the size of the dowry on the pride of the family where a dowry of between 100 and 200 cows might be paid. A court system is in place for disputes over dowry thus indicating how seriously the dowry system is taken in South Sudan.
When immigrating to Australia much of the foundations of South Sudanese culture are retained, and while love marriages or a combination of arranged and love matches are becoming increasingly common, a variation of the dowry system still operates. The value of the cows is instead converted into Australian dollars with one cow equalling $300 in the Nuer community, and between $500 and $1,000 in the Dinka community with the average Dinka dowry being approximately $100,000.
The wedding process in Australia tends to take two weeks. The first week consists of the extended families meeting in a big hall to negotiate the price of the dowry, discuss children and when it is determined, pay the dowry. The price is documented by community elders who make note if the dowry is not paid in full. Once an agreement is reached, the families celebrate with food, drink and traditional dances. In the second week, a church ceremony occurs with a large reception for the extended family and friends. Kathrine commented that South Sudanese weddings are very expensive affairs.
Kathrine explained that divorce in South Sudan is rare and not easily achieved. Men typically do not divorce as they can take more wives. Women, on the other hand, need the support of their fathers and brothers to divorce. Divorce is granted by the courts and community elders and the dowry must be repaid, deductions are made for the number of children and if the wife was a virgin (six cows for each daughter, one for each son and five cows if the bride was a virgin). Daughters are a greater deduction as the husband will receive a dowry for her, thus she is a more financially valuable asset.
Children are considered the property of the husband and in the case of divorce, they will stay with the husband and his family, younger children will remain with their mother until the age of seven, at which point they will be sent to the father and his family. All other property of the marriage belongs to, and is retained by, the husband. If the dowry is not repaid, the wife remains the property of her husband and she is not allowed to be remarried.
Within Australia, divorce within South Sudanese communities is complicated by Australian law. The majority of South Sudanese men believe that Australian family law is contrary to their culture and beliefs. They believe Australian family law is responsible for the family breakdown, permitting women to be responsible for the care of the children when they are not capable of bringing up children on their own and invests the women with property rights they should not otherwise have. There is a lot of blame and shame within divorce: men often blame the women for any problem the children might be having. For example, by claiming the mother is too soft and could not cope - so that children raised by a single mother are considered insufficiently prepared for adulthood in South Sudanese culture.
Family violence in South Sudan is epidemic in that husbands can be violent towards their wife with minimal fear of punishment. There is a very high toleration of violence towards women with many women suffering significant injuries, permanent disabilities and death.
Speaking from her experience as a Family Violence Case Worker, Kathrine described that in circumstances of family violence within the South Sudanese community in Melbourne, women are more likely to seek help from the authorities. Although it is still hard for women to leave their husbands even if they’re subject to violence , they’re still hopeful that the police will intervene and stop the violence they’re facing.
Nevertheless, going to court is a very hard decision to make because they will be isolated from their community. South Sudanese women fear that if they leave the violent relationship, their husbands have a right to take their children from them as they do not understand the family law procedures in Australia.
Following on from Kathrine’s informative presentation of South Sudanese culture, Vera Hardiman – Principal Lawyer and Coordinator at Casey Cardinia Community Legal Service – discussed working with CALD clients within the legal services sector, identifying challenges and giving feedback on her experiences.
Vera identified a lack of trust as a significant issue when working with women from a CALD background, particularly during the process of writing the affidavit. She indicated that the women felt as if they were being re-traumatised, fearful of being judged and it could be at times difficult for the lawyer to obtain the relevant background information.
The barriers between each culture and society were also highlighted by Vera who encouraged legal practitioners to try and find mutual ground between their client and themselves, indicating that for her, their mutual Christianity was a helpful way to connect with South Sudanese clients.
Vera concluded by noting that gaining understanding of mutual cultures was an important process of relationship building with a client and encouraged information sharing between members of the panel and the audience.
DR. REGINA QUIAZON
The next speaker, Dr. Regina Quiazon, the Senior Research and Policy Advocate at Multicultural Centre for Women’s Health, presented on the topic of ‘Gender and Culturally Informed Approaches, Community and Policy Development Program Management in relation to Multicultural Services’.
Regina framed her discussion around the ASPIRE project (Analysing Safety and Place in Immigrant and Refugee Experience) that the Multicultural Centre for Women’s Health is currently undertaking with ANROWS (Australia’s National Research Organisation for Women’s Safety), and the language revolving around migrant communities as well as their experience.
Regina identified the context of culture and the term marginal or marginalised as reoccurring when discussing migrant women. That it is important to discuss why that term is associated with migrant women and to call into question exactly what mainstream culture is. Particularly when looking at statistics of the makeup of the Australian population, she noted that 47% have a direct link to someone born overseas or who was part of a migration program, 32% are born overseas and 20% have at least one parent born overseas. Yet we continue to look at the migrant population as being marginal despite these statistics.
Regina drew attention to the first report of the ASPIRE project, the Landscapes: State of Knowledge Report published in October 2015 entitled ‘Promoting community-led responses to violence against immigrant and refugee women in metropolitan and regional Australia’. The findings of the report indicated relatively unsurprising issues emerging in regards to engaging CALD communities: lack of trust by CALD women and lack of multilingual support in the sector. The report also identified that the migration program had a huge impact on women’s help seeking behaviour and how they might try and seek access to support programs. There are over a million migrants in Australia who are on temporary migrant visas, which has broad implications on the type of support that migrant women have access to and when they do have access to it, it is very inconsistent. We need to question why, inequality is built within the system in the case where the migration system is geared towards permanency: approximately 40% of migrants ultimately become permanent residents.
What is known about the migrant and refugee women’s experience of family violence is that they’re experiencing similar forms of violence. However, there are differences in the types of violence experienced and structural contexts. Regina acknowledged that there are issues in determining prevalence as data collection systems in such areas do not often reflect language barriers or smaller more insulated communities. Multi-perpetrator family violence was identified to be common in the migrant community as communities live in extended families, where for example, older brothers might be inflicting violence against younger sisters. The research also found that women endure violence longer due to family and social pressures to keep quiet, and migrants on temporary visas are afraid to go to relevant authorities for fear it’ll affect their settlement status.
When discussing that violence is experienced differently in migrant communities, Regina emphasised that we need to understand what is meant by different. There can be cultural implications with different harms and consequences. An example of which is dowry-related violence. The Royal Commission in its findings stated that dowry violence should be included in family violence policy, which is ideal but it is then important that we do not then go on to marginalise migrant communities who use the dowry system. In terms of the implementation of this requirement, it is also important that police, interpreters, court staff etc., are trained to understand what is meant by dowry and its cultural implications.
Another important finding was that research in the UK looked at the revolving door experience of migrant women, where women who spoke English had contact with services around 11 times but if English was not their first spoken language, contact increased to 17 times. Therefore, there needs to be discussion and thought on how to eliminate the revolving door experience of migrant women when dealing with support services.
Regina discussed that it is important when dealing with migrant women to not only consider their culture but their gender and experience as a whole. Systems, norms and practices around migration and settlement can create distinctive forms of disadvantage that intersects with a range of contextual factors (historical, social, economic and political) which can lead to racism, sexism and discrimination. To battle this there needs to be a change in our understandings of difference and diversity, culture and the intersections of other forms of structural inequality, oppression and disadvantage.
The intersectional approach looks at the systemic issues that make women vulnerable (class, gender, race, etc.) and to understand the contextual factors to improve equitable outcomes when dealing with different communities. Intersectionality moves beyond single categories of analysis to consider interactions between different aspects of social identity, as well as the impact of systems and processes of oppression and domination. Research, policy and programs need to be attuned to these interactions and what they reveal about power and hierarchies.
Regina finished up by indicating a need for systemic process review to consider the differences of context when engaging a client as just by allowing access to everyone to a particular program would not necessarily result in equal outcomes.
JUDGE ALEXANDRA HARLAND
The speaking portion of the forum was concluded with a presentation from Judge Alexandra Harland of the Federal Circuit Court who discussed the views of the judiciary when engaging with CALD communities.
Judge Harland began her remarks by stating that Judges are not experts on culture and that a huge challenge for the court is a lack of information on culture. While the Family Law Act 1975 (Cth) addresses culture in section 60CC (the child’s best interests factors), it does not define what culture is. While there is a section on Aboriginal and Torres Strait Islander culture, in terms of other cultures, the Act does not address them. This might mean that culture isn’t a big issue in a case but it also shows a reluctance to talk and ask questions about a particular culture. Often when looking at an affidavit you can have no idea of a particular cultural idea and if it’s going to come out in cross examination then it is too late as it lacks sufficient context - it really needs to be included in the affidavit.
Judge Harland indicated that it was also worthwhile looking at the ‘Family Violence Best Practice Principles’ (“FVBPP”) as it refers to culture specifically in terms of family violence and that the judiciary attempt to understand the dynamics of family violence and abuse as informed by diverse cultural contexts; the FVBPP talks about how culture is not a fixed concept. Judge Harland highlighted this as one of the challenges as there can be significant family violence but the cultural context of it has not been explained and that is only increases where the victim doesn’t speak English, has only recently arrived and doesn’t know who to contact or is afraid of authorities because of their past experiences.
Such information would better inform the family circumstances and what’s going on but it’s not often covered in any material submitted to the court - whether this is due to assumptions that the material is not relevant or whether or not it’s going to be admissible. However, culture is a person’s experience and individual to their family experience. There are also community cultures. So it’s not necessarily about looking at the broad views of culture but sometimes personal or family context of culture that might be important. For example, in parenting matters it might be important when considering final orders to consider special days and activities or times of year yet due to the lack of information, they’re not covered as it might not be obvious.
Judge Harland identified that the lack of information and cultural barriers are challenges not just for judges but for lawyers and family report writers as well as it can be difficult to obtain the relevant cultural information. While there is certainly greater recognition of having cultural reports in the Aboriginal and Torres Strait Islander context, the same recognition is not necessary afforded in broader CALD contexts. Judge Harland suggested that this idea would be really helpful although she admitted that there are challenges in who can provide them suggesting perhaps community elders or senior family members. Important practical issues were also identified that might stem from language barriers particularly when there are smaller tribes with distinct languages. There is also the access to justice issue, while an individual or translator might be able to follow conversational English legal language is entirely different especially while being in a stressful environment.
Judge Harland then turned to several case examples to highlight the difficulties of cultural differences and contexts within legal decision making. She cited Younis v Mitanni  FAMCA 430 where Justice Collier accepted that the African culture was very important to the relevant child but it hadn’t been an issue in evidence (nothing had been said of it) so it becomes difficult to do much about it unless evidence is put forth about the issue.
In Toliver v Molina (2008) FMCAFAM 43, Judge Brown gave a lengthy judgement that highlighted the issues discussed during the forum. The case involved parents who had migrated from the Congo and issues of culture and significant family violence were present. While the father did have representation initially, he “fired” them and continued the hearing on his own. Judge Brown recognised the difficulties of the father being in a foreign environment, culture and language but that the real problem the father was facing was that he was clearly offended that the court had any involvement at all with his family. The father refused to give any information about culture except to say that in his view the wife having left him was brought on by the court system and that the kids should be his finding it incredibly offensive that anyone was questioning this. The father also was offended by Dr. Simon Kennedy, the expert witness, and stated that he did not know anything about his culture.
Judge Harland summarised that it was clearly a struggle for the father to accept that Australian law is paramount and the court has to apply it. While the judgment and expert testimony talked about how it might be useful for the father to get culturally appropriate counselling, the father found it offensive and continued to protest “that none of you understand my culture” - yet the problem was that the father wouldn’t tell them about it. The father thought the government, in the guise of the court, was being dismissive of his cultural traditions and practices. Certainly that was something Judge Brown recognised in his judgment and he said that he accepted that for the father it was both culturally inappropriate and insensitive for the court to make these decisions that he saw as deeply personal in the arrangement of his children. However, Judge Brown went on to say that there is a dispute between Australian methods and these arrangements but that they are in Australia and it’s an Australian jurisdictional issue which, Judge Harland stated in agreement with Judge Brown, is clearly right.
In continuing the example, Judge Harland highlighted the practical issues within the trial, identified by Judge Brown, as neither party had applied for extensive materials relevant to their case and both parties required translators. One of the problems for the lawyers was how to get the information from their clients through the translators and particularly if they received legal aid. The case example served to illustrate the issues raised by the speakers of the forum and highlights the tension for Judges between acknowledging the importance of a culture and still having to apply the law but without the cultural information there will be a deficit there. There is a real problem getting that individual evidence.
Judge Harland continued her commentary on the Courts’ struggle with cultural contexts by identifying that in some cases with parents from different parts of Africa, there are often different cultures and languages - similar to Torres Strait Islander communities where there is no single culture and it can therefore vary enormously between different people. In some cases there is the issue of the trauma to both parents in that they’ve escaped countries where massacres are occurring and have come to Australia in traumatic circumstances and continue to be traumatised by those issues. Judge Harland posed “how do you deal with people suffering that level of trauma and then get them to be able to talk about it and their experiences, let alone how that has impacted them in terms of now being in a different country with different rules, expectations and language?”. Judge Harland cited Nimeiri v Bakika (2015) FAMCA 296 as an example of a case dealing with issues of family violence but in the background both parents were dealing with significant trauma.
In concluding her presentation, Judge Harland reiterated that the cases were a few examples of the complexities facing every part of the family law system, and was not limited to what judges face but also lawyers, social workers, family consultants, family dispute resolution practitioners and anyone who has a role with CALD families. She encouraged the continuation of dialogue so that the issues might be flagged and to further clarify what relevant issues might need to be addressed.
The forum concluded with a brief audience Q&A where guests were invited to ask questions to the panellists.
Please note that the replies have been generalised but kept in this format for the context of the conversation’s flow.
Question 1: In relation to the opportunities that might be presented in assisting cultural diversity in the system, what are the priorities? How can we work together to achieve more equitable outcomes for immigrant and refugee clients?
Paula Piccinini: (InTouch, colleague of Kathrine, in the audience): InTouch is a family violence crisis service and about 3 years ago we set up an in house legal clinic. The lawyers now work with the case workers, like Kathrine, to assist South Sudanese women and it works really well as we find that while the client might not tell us about their culture, Kathrine will. An example is a client who I began working with 8 months ago gave me a copy of her marriage certificate with a list of the dowry, and I was going to put it aside for lack of relevance and Kathrine took me aside and explained how big a deal the dowry was and that she needed to repay it to be ‘free’ of the marriage. Regardless of what the property settlement was going to be, if she doesn’t repay him what the dowry was, given the discounts for the number of children she has, she will not be able to marry again.
That was a huge eye opener as when we now negotiate over this couple’s property settlement we need to consider how much do we need to pay back to make this woman free compared to how much she would get under Australian law. The result is weighing up Australian law and the dowry system, so she can get on with her life and be free.
Judge Harland: I’ve never had any experience of anyone having mentioned a dowry needing to be repaid, so I haven’t taken it into consideration before and this is something that needs to be factored in and it needs to be considered if it’s something to put in the agreement?
Paula Piccinini: The dowry is paid to the bride’s father so it does not become an asset to the marriage as it is paid to somebody else.
Judge Harland: It’s almost like a financial resource – that is something you could raise, and needs to be brought up. It is relevant and could be dealt with in a way that’s… not necessarily needing creative thinking but in a way that really does have to be explained.
Paula Piccinini: If this matter doesn’t settle we’ll need to put it in the affidavit.
Judge Harland: Yes, it something that’ll need to be brought up and it’s an example of where cultural experts might need to be brought in as I can see a contest of evidence over such an issue occurring. The time it takes to understand these issues needs also needs to be explained to say why it has taken so long to lodge an application to a court – the answer may be that the client was so traumatised by the experience, didn’t understand the Australian system etc. and that context needs to be provided to the court in the initial affidavit.
Dr Regina Quiazon: That’s the devil in the detail, dowry is mentioned in the Royal Commission’s recommendations but other than mentioning it in the Family Law Act there is no other information on how to implement or explain that information.
Question 2: In terms of migration and transitions of bringing a culture into Australia, after how many generations are they expected to conform to how we understand relationships? At what point does it balance in terms of which law applies in this situation?
Judge Harland: The simple answer is that Australian law is applied within Australia nationally. Cultural practices might be occurring unofficially within communities but certainly nothing officially. Sometimes people will go to elders within communities to get help with the implementation of these processes but they are not binding on the Courts.
There is a tension about it – as one difficult issue for example, is genital mutilation as it is horrific and it is abuse, but what’s the cultural context for it? It is really challenging and there are some lines that just cannot be crossed, and you’re not going to have a Judge saying something like violence against women is okay because of culture, it might explain the context of why it’s happening, why it’s not being reported but it does not excuse the action.
There is a difference between recognising the culture and what it means to build families in a different culture but courts will never be excused from their duties, especially in parenting matters where the best interest of a child is paramount and the child has the same rights as any other child.
The VFLPN Greater Melbourne is extremely thankful for the guest speakers’ time and informative presentations and to the audience for their attendance and participation. The event was a success in bringing to the foreground the issues in the family law sector that transverse the various professions and that ultimately, all of our professions come down to the people we are trying to help and being able to work together to achieve that common goal.