By Jayarupi Pahala Vithana

13 March 2024

This post is the first in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University in 2023. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

What is Family Dispute Resolution?

Family dispute resolution (or ‘FDR’) is a process in which an accredited practitioner helps families to resolve disputes arising from separation or divorce in a non-judicial setting.

An FDR practitioner will help families to create parenting plans setting out future arrangements. The practitioner will help parties to identify the issues they need to resolve and encourage them to consider each other’s points of view, with a focus on arriving at practical solutions that protect children’s best interests. FDR offers families a great degree of flexibility to adjust procedures and outcomes to suit their needs. This process is especially appropriate for the personal nature of family disputes, which impact the welfare of children and concern intimate relationships.

Image: Ketut Subiyanto, Pexels Stock Image

How well does FDR achieve its ideal?  

Ideally, FDR should lead to effective and sustainable agreements. For FDR to provide effective justice, it needs to respond to the needs of all Australian families.

However, Australians from culturally and linguistically diverse (‘CALD’) backgrounds are substantially under-represented in accessing FDR services, according to research conducted by Dr Susan Armstrong of Western Sydney University.

Professor Lola Akin Ojelabi, RMIT, argues that CALD families face numerous barriers to accessing FDR services: a lack of awareness, issues with language, religion, and social norms, or concerns that FDR is tailored for a specific type of ‘Australian’ family and will not suit their needs.

The Evaluation of the 2006 Family Law Reforms showed that FDR services fall short in their responsiveness to the needs of CALD families. That research showed that professionals in the family relationship sector do not feel confident providing services to CALD and Indigenous families. The evaluation also noted that though FDR providers are required to be accredited, their training does not require cultural competency.

Re-Designing Family Dispute Resolution

FDR providers and decision-makers can re-design their processes to be more accessible and effective. Here are some key changes that will improve the quality of justice provided to CALD families.

Work in partnership with CALD and First Nations groups.

Family Dispute Resolution centres should partner with organisations that work with CALD communities. This could involve forging relationships with cultural organisations or employing community groups and elders as cultural advisors. This will promote the visibility of FDR services and the involvement of members of specific cultural groups will help bridge the gap in language and cultural norms, reducing the reluctance of CALD families to access FDR.  

Partnered organisations can be involved in the process of reviewing and improving FDR processes to be culturally appropriate. For example, Victoria Legal Aid partners with Aboriginal-controlled services such as Djirra and the Victorian Aboriginal Legal Service in implementing their frameworks for FDR for Aboriginal and Torres Strait Islander families.

Support FDR Practitioners to ensure their practice is culturally sensitive and self-reflective.

It’s impossible for all practitioners to be knowledgeable about every culture and language, or to be fully across the complex social, cultural, and religious factors that influence a family. What is more important than an encyclopaedic knowledge is the attitude that FDR practitioners bring in communicating with clients of different backgrounds to their own.

FDR practitioners should undertake training on the importance of reflecting on the ways that their own cultural contexts influence their values, biases, and identities. According to Dr Susan Armstrong, a self-awareness of the influence of one’s own cultural framework and a genuine desire to be sensitive in connecting with other people on an equal footing will allow FDR practitioners to create a welcoming and non-judgemental space. Education is necessary to eliminate prejudices or unknown biases. For example, a common bias is the belief that speakers of English as an additional language are less intelligent because of their accented English. Families will feel more comfortable talking to a practitioner who does not speak to them in a patronising tone, and who does not become impatient when they cannot understand an unfamiliar accent.  

Mandatory cultural competency training as part of FDR practitioner accreditation.

A person’s cultural background affects the way their family functions and their priorities in resolving disputes.

Family units and relationships look very different in some cultures compared to others. Professors Ghena Krayem (University of Sydney) and Farrah Ahmed (University of Melbourne) note that for some CALD communities, it is important that respected older family members or community leaders are approached first for guidance in helping resolve family disputes. Their involvement in this process can help provide an affirming experience for the parties. In other cultures, divorce is considered deeply shameful. Parties may want to limit the involvement of extended family in future childcare arrangements or may need to unpack their own feelings of guilt or shame before coming to workable solutions.

Furthermore, red flags that signal family violence look different for different cultures. For example, in South Asian communities, issues of dowry and dowry abuse may be an avenue for financial control or abuse.

A culturally competent FDR practitioner will be aware of these differences when mediating discussions between parties.

Culturally responsive FDR can assist FDR practitioners to ensure that any agreed arrangements protect children’s right to enjoy their culture.  

Employ a culturally diverse staff.

Multicultural or multilingual FDR practitioners and staff can bring an ‘enormous amount of knowledge and experience’ about their communities, according to Armstrong. Clients might find it easier to build rapport and trust if a practitioner speaks their language.  

However, some clients might feel uncomfortable sharing personal matters in front of someone who is from the same background, especially if they are concerned about the person being a part of the same circles as them, or being a non-neutral participant due to cultural influences.

Employing multicultural staff does not necessarily mean that a practice is culturally competent. Even practitioners from diverse cultural/ linguistic backgrounds themselves should be supported to reflect on the influence of their own cultural belief system on their practice.

Formalise processes to ensure a consistent approach.

Although FDR practitioners currently may respond to families’ cultural differences on an ad hoc and case-by-case basis, FDR centres should formalise a culturally responsive approach in a comprehensive, strategic and holistic way.

Screening and intake tools can be adapted to accommodate cultural and linguistic differences so that families are supported from their first interaction with FDR. Formal protocols can be put in place to require FDR practitioners to make culture a visible part of the discussion process.

Armstrong argues that FDRP’s should continually review and assess how they are providing FDR services to CALD families.

FDRPs can ensure referral practices effectively identify and assess cultural contexts, preferences and needs.

The challenge for culturally responsive practitioners: preventing exploitation of culture.

There are legal limits to the ability of FDR practitioners to accommodate the practices, values, and norms of different cultures. FDR practitioners should be clear to participants about the limits of the process and be wary of avoiding falling into traps of cultural relativism that compromise fairness and procedural justice.

Akin Ojelabi warns that vulture can be exploited: FDR practitioners should keep an eye out for the way that cultural dynamics affect the balance of power between parties, and should be careful not to allow their culturally responsive approach to validate giving one party more power over another. For example, women from Iraqi and Lebanese communities have perceived that women are mostly blamed in their communities for family breakups, and their opinions are not always accepted in their traditional culture. However, Iraqi men have expressed that they are treated badly under Australian law. In this example, men may be wary of mainstream Australian FDR practices if they provide an equal standing for a woman’s opinion.

Culture should not be used as a reason to compromise the right to a fair dispute resolution process in such situations.