21.103 In the course of this Inquiry, stakeholders have commented on the particular needs and concerns of Indigenous and CALD children and families in the resolution of family law and child protection disputes involving family violence. As the Commissions discuss further in Chapter 23, non–judicial dispute resolution processes offer significant flexibility to tailor procedures and outcomes to the needs and interests of children, families and their cultures. Consequently, agreements may be more effective and sustainable.
21.104 In some respects, however, concerns about using non–judicial dispute resolution processes in cases involving family violence may be amplified in the context of Indigenous and CALD families because of the particular difficulties relating to identifying family violence in these cases. Researchers have highlighted some of the difficulties experienced and the reluctance felt by Indigenous and CALD women in disclosing their concerns about family violence and the safety of their children. Significantly, the AIFS evaluation of the 2006 family law reforms indicated that professionals in the family relationship sector lacked confidence in engaging with CALD and Indigenous families. Such a lack of confidence on the part of practitioners may also contribute to the complexity of identifying and assessing violence in Indigenous and CALD families for the purposes of FDR.
21.105 The significance of timely and reliable identification and assessment of family violence concerns is discussed above, and in Chapters 22 and 23.
21.106 It has been suggested that FDR practitioners’ awareness of not just the personal, but cultural, religious, language and structural factors that may affect the disclosure of violence, and their ability to adapt screening tools and questioning in accordingly are critical. It has also been suggested that, in addition to reviewing screening and assessment processes, review of referral practices to ensure that these effectively identify and assess cultural contexts, preferences and needs is particularly important where violence may be present.
21.107 More culturally responsive models of non–judicial dispute resolution are being developed to accommodate the cultural contexts, values and needs of parties involved in or affected by disputes. As these models develop, consideration will need to be given to how the accommodation of culture is balanced with the requirements of the law, particularly in cases involving family violence:
The challenge for culturally responsive practitioners is to effectively explore with clients whether and how elements of an individual’s culture may be accommodated in the FDR process. They avoid the traps of cultural relativism by being clear about the legal limits of accommodating culture, particularly where violence is present, but also understand that this assessment is a complex one. They will know when law, and procedural justice, trump culture and have the capacity to make this clear to the parties. Culturally responsive FDR [practitioners] respond effectively to the cultural dynamics of violence and of gender.
21.108 While accommodating culture in cases involving family violence presents particular challenges, the potential for culturally responsive FDR to secure sustainable and effective outcomes in this context may also be significant. Further, culturally responsive FDR can assist FDR service providers to meet their important obligation to facilitate outcomes which observe children’s right to enjoy their culture.
21.109 In consultations following the release of the Consultation Paper, the Commissions sought comments from stakeholders about the capacity of FDR to offer processes and lead to outcomes that accommodate the needs of Indigenous and CALD families.
Submissions and consultations
21.110 Stakeholders commented on the interaction of family violence and culture, the factors affecting disclosure of family violence and the need for culturally responsive solutions. Stakeholders also reported on initiatives to provide culturally appropriate dispute resolution processes and outcomes for Indigenous and CALD children and families.
21.111 As noted in Chapter 22, the Aboriginal Family Violence Prevention and Legal Service Victoria (AFVPLS) commented that, for various reasons, including reluctance of Indigenous women to disclose violence, there are problems with Family Relationship Centres identifying family violence experienced by Indigenous people. The particular need for holistic, community–based and culturally appropriate dispute resolution for Indigenous children was raised by another stakeholder. 
21.112 Legal academic and researcher, Ghena Krayem, commented on the reluctance of muslim women to disclose family violence because they feel they will be blamed for their situation and fear that if they go to the police, the response will be ‘it’s typical of your community’. In her opinion, ascribing violence to culture was overly simplistic. She related the causes of violence not to culture or religion, but to other factors that transcend culture or religion—such as isolation, dislocation, disempowerment, and alcohol abuse. Ms Krayem commented that the causes of violence might be the same, but the responses may have to be different and that holistic solutions are needed. She noted the importance of engaging communities in developing solutions, rather than simply responding on a case by case basis.
21.113 Legal Aid NSW noted that the KPMG report identified that legal aid commissions’ responses to people from diverse backgrounds were largely ad hoc, and that there was a need for formal protocols for delivering culturally and religiously appropriate FDR services. In response, Legal Aid NSW noted that it has developed more culturally appropriate dispute resolution processes for Indigenous clients, offering cadetships to Indigenous people to be trained as FDR practitioners, and offering all Indigenous clients an Indigenous FDR practitioner. FDR traineeships have also been offered to suitably qualified candidates from diverse cultural backgrounds with extensive understanding of the cultural practices, beliefs and experiences of their community. Legal Aid NSW told the Commissions about initiatives to develop a training and professional development framework for FDR practitioners, conference organisors and family lawyers, and other measures to ensure that FDR processes are culturally appropriate. Legal Aid NSW also told the Commissions about pilots in culturally responsive ADR in child protection.
21.114 Commenting on the work of legal aid commissions to engage CALD communities in the improvement of dispute resolution practice, National Legal Aid noted that all legal aid commissions maintain productive working relationships with CALD representative community based organisations to inform ongoing development of culturally appropriate policies and procedures. National Legal Aid described particular initiatives in this area, including the Victoria Legal Aid Roundtable Dispute Management program, which has included extensive consultations with CALD (particularly Arabic and African) communities in Melbourne and professional development for case managers in relation to working with interpreters and other issues relevant to these communities. National Legal Aid also referred to Legal Aid Queensland’s Indigenous mediation model, which was established in partnership with the Yarrabah community, and utilises Indigenous mediators from that community. National Legal Aid also told the Commissions about the participation of Legal Aid Western Australia’s Clinical Services Coordinator in a training program involving cross cultural leadership, peacemaking and mediation in the context of Indigenous culture.
21.115 The FRSA referred to barriers to access to FDR services for CALD families, such as low awareness of services, practical difficulties with the use of interpreters and the additional resources needed to respond appropriately to the needs of families with complex needs. According to the FRSA, services working with Indigenous communities reported that such work ‘requires quite a different approach to service delivery than used for mainstream client groups’. The FRSA also noted that while the Secretariat of National Aboriginal and Islander Child Care had recently received government funding to develop a comprehensive resource manual to support services to improve their cultural responsiveness to Indigenous families, funding was not provided for associated training and dissemination. The FRSA also referred to a model of dispute resolution for Indigenous families, developed by the Alice Springs Family Relationship Centre, which it believes warrants further dissemination and support. In FRSA’s view, ‘improving practice in this area requires more than ad hoc activities driven by highly motivated individuals’. In the FRSA’s view, a more comprehensive and strategic approach to enhance culturally responsive practice in FDR and other family support programs is needed.
21.116 The various factors which affect the identification of family violence experienced by Aboriginal and Torres Strait Islander and CALD women, including reluctance to disclose, are addressed through culturally sensitive family violence screening and risk assessment.
21.117 In the Commissions’ view, FDR offers significant promise for processes that can accommodate —in so far as is appropriate, practicable and within the limits of the law—the cultural, religious and social values and practices of CALD and Indigenous communities. The Commissions note the particular value of culturally responsive FDR in promoting outcomes that observe children’s right to enjoy their culture. The Commissions commend stakeholders and the Australian Government Attorney–General’s Department for the work they have already done to develop culturally responsive FDR practice and service delivery for Indigenous and CALD communities.
21.118 The Commissions appreciate that the development of culturally responsive FDR practice requires considerable planning and resources, particularly for its application in cases involving family violence. In this regard, the Commissions note stakeholder concerns that culturally responsive approaches should be developed and implemented in a comprehensive, strategic and holistic way, rather than on an ad hoc basis.
21.119 The Commissions also acknowledge the complexity of identifying and assessing family violence in different cultural contexts. Existing and future initiatives to improve FDR practice and service delivery for Indigenous and CALD communities require comprehensive and strategic support to ensure that screening and risk assessment processes can reliably identify and assess family violence in different cultural contexts; to develop protocols for referrals to culturally appropriate support services; to engage Indigenous and CALD communities in developing holistic, effective and appropriate processes and outcomes in cases involving family violence; and to build FDR practitioners’ skills and confidence in working in this area. The Commissions consider, therefore, that the Australian Government should take a comprehensive and strategic approach to support culturally responsive family dispute resolution. The Commissions consider that the development of culturally responsive FDR screening and risk assessment processes is particularly important to ensure that family violence concerns are appropriately and effectively identified, assessed and managed.
Recommendation 21–5 The Australian Government Attorney-General’s Department should take a comprehensive and strategic approach to support culturally responsive family dispute resolution, including screening and risk assessment processes.
 N Thoennes, ‘What We Know: Findings from Dependency Mediation’ (2009) 47 Family Court Review 1; Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Report 84 (1997), [17.48].
 General concerns about using non–judicial dispute resolution processes in cases involving family violence are discussed in this chapter, above, and in Ch 22 and Ch 23.
 L Bartels, Emerging Issues in Domestic/Family Violence Research, Research Practice No 10 (2010), prepared for the Australian Institute of Criminology; Australian Human Rights Commission, In Our Own Words: African Australians, a Review of Human Rights and Social Inclusion Issues (2010); Successworks, CALD Women’s Project: Final Report (2005) prepared for the Victorian Government Department for Victorian Communities; S Armstrong, Culturally Responsive Family Dispute Resolution in Family Relationship Centres: Access and Practice (2010) Prepared for Family Relationship Centres at Bankstown managed by CatholicCare and Parramatta managed by Anglicare. Submissions and consultations highlighting this issue include: Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; G Krayem, Consultation, Sydney, 22 June 2010.
 Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009), 54.
 See also Ch 18.
 S Armstrong, ‘Culturally Responsive Family Dispute Resolution in Family Relationship Centres’ (2009) 13 Family Relationships Quarterly 3, 5.
 S Armstrong, Culturally Responsive Family Dispute Resolution in Family Relationship Centres: Access and Practice (2010) Prepared for Family Relationship Centres at Bankstown managed by CatholicCare and Parramatta managed by Anglicare, 16.
 As described by Dr Susan Armstrong, ‘“[c]ultural responsiveness” in the context of service provision is the active process of seeking to accommodate the service to the client’s cultural context, values and needs’: S Armstrong, ‘Culturally Responsive Family Dispute Resolution in Family Relationship Centres’ (2009) 13 Family Relationships Quarterly 3. The development of culturally responsive models of non–judicial dispute resolution is described by stakeholders below, and in Chapter 23.
 S Armstrong, Culturally Responsive Family Dispute Resolution in Family Relationship Centres: Access and Practice (2010) Prepared for Family Relationship Centres at Bankstown managed by CatholicCare and Parramatta managed by Anglicare,15.
Convention on the Rights of the Child, 20 November 1989,  ATS 4, (entered into force generally on 2 September 1990) art 30; Family Law Act 1975 (Cth) ss 60B(2)(e), (3). On facilitating children’s right to enjoy their culture, see also S Armstrong, ‘Culturally Responsive Family Dispute Resolution in Family Relationship Centres’ (2009) 13 Family Relationships Quarterly 3, 6.
 Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010. This comment was made in relation to the value of including information about family violence on s 60I certificates: see Ch 22.
 Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010. The comments of this stakeholder are discussed in Chapter 23 in relation to ADR in child protection matters.
 G Krayem, Consultation, Sydney, 22 June 2010.
 The Nowra Care Circle pilot and the Bidura Children’s Court external court–referred mediation pilot are discussed in Ch 23. Legal Aid New South Wales, Correspondence, 14 July 2010; Legal Aid New South Wales, Correspondence, 14 July 2010.
 National Legal Aid, Correspondence, 20 September 2010.
 Family Relationship Services Australia, Submission FV 231, 15 July 2010.
 In this Report, the Commissions have recommended that Australian,state and territory governments prioritise the provision of, and access to culturally appropriate victim support services for victims of family violence, including enhanced support for victims in high risk and vulnerable groups: Rec 29–3.