Cultural Considerations and Modern Family Law

It is important to be aware that the 1995 legislation is particularly directed at the wellbeing of children and the promotion of primary dispute resolution, and that these are two broad and important areas which are dependent on value systems which may involve a wide divergence of views. In the case of children, significant feelings about parental roles and responsibilities may be influenced by issues related to ethnicity, just as they may often be influenced by gender issues. In the case of mediation and conciliation, there may be a reluctance to engage in private ordering or a fear of avoiding the more formal litigation path, due to beliefs, which are hopefully incorrect, that the alternatives involve “star chamber like” or unaccountable procedures. Many of those who have come to Australia from particularly repressive regimes would understandably hold such beliefs, just as many indigenous Australians base their lack of trust in the legal system on past experiences with it. It is obviously most important that there be trust between the various ethnic communities and the legal system in general, and this is particularly important in the area of family law. Fortunately the judges and the courts of this country, unlike those of Nazi Germany, are both independent and above these attitudes and will not be influenced by them in performing their duty. Given the centrality of family life to us all, the impacts of law and policy which impinge directly upon the family are particularly significant in a multicultural society such as Australia most undoubtedly is. Not only will laws which stereotype families fail to have meaning for those who fall outside the stereotype, but their impacts will be discriminatory, and consequently unjust. In the environment of family law particularly, the challenge to reflect and respect the cultural diversity of the population is both enormous and vitally important. The obligation is on the Court to provide a level…

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