Analysis of the MNG's Family Law System

Family law is a highly emotional and complex area of law. Therefore, non-adversarial processes are more appropriate for the dynamics and emotions involved in family law proceedings. Marram Ngala Gunbu (‘MNG’), a division of the Broadmeadows Children’s Court, is a court that implements a solution-focused approach to non-adversarial court processes in order to address the overrepresentation of Aboriginal families in the family law system. The informal nature of the non-adversarial processes increases cooperation and minimises conflict by preventing the break-down of communication during high-stakes proceedings.

Furthermore, the use of culturally appropriate processes serves to alleviate the effects of a Western ethnocentric view of a nuclear family that predominates the family law system. Observing the positive effect of therapeutic jurisprudence principles on the Aboriginal families involved, highlights the need for cultural sensitivity during court proceedings for diverse families to reach resolutions that benefit all parties. This essay will discuss my observations on the non-adversarial processes implemented at MNG, the reasons for and appropriateness of the processes used and changes to my thinking after observing MNG.

Observation

MNG was established to recognise the cultural needs of Aboriginal families during family law proceedings. Contest mentions are regularly held at this court, where parties are given an opportunity to resolve the case without the need for summary contested hearings. The contest mentions I observed were heard and presided over by Magistrate Hawkins. All the participants sat around a round bar table with a possum skin cloak and coolum, items of cultural significance to the Aboriginal community.

Magistrate Hawkins began with acknowledging the native owners of the land and The Stolen Generation. The individuals around the table; parents, case managers, lawyers, family supports, cultural advises etc. were all encouraged to contribute to informational discussions. Furthermore, the extended family were also able to make submissions. During court proceedings, colloquial language was used and the proceedings were relaxed. In the first case, the participants discussed purported statements that the child had made about their preferred living situation, with the father claiming the child had expressed they did not want to live with the mother. In the second case I observed, Magistrate Hawkins discussed the requirement for a cultural support plan endorsed by Victorian Aboriginal Child Care Agency for long-term orders.

MNG implements a solution focused approach within a broad adversarial framework with the magistrate, participants and lawyers taking on non-traditional roles when interacting with each-other. Traditionally, court proceedings are party-led, with the judge acting as an independent arbitrator passively hearing arguments and evidence to form judgements. However, Magistrate Hawkins was very involved and acted as a discussion leader, treating each case as an ongoing inquiry to determine the issues at hand. Furthermore, lawyers did not direct discussions like in adversarial courts. Instead, they played a passive role during proceedings, only speaking when their legal knowledge was required, such as interpreting legislation in their client’s favour much like in adversarial systems. Unlike adversarial court, the proceedings were conducted in a manner to encourage cooperation to assist in finding resolutions that are beneficial to the psychological wellbeing of both the clients and the child.

Analysis

Informal Processes

Australian family law legislation allows courts to conduct proceedings and make decisions based on the principle of determining parenting arrangements according to the ‘best interests of the child’. Section 69ZN Family Law Act states that proceedings should be conducted without undue formality and technicality, and promote cooperation. At MNG, these legislative requirements have been interpreted in light of therapeutic jurisprudence principles by minimising adversarialism and simplifying court processes. Therapeutic jurisprudence also addresses the way that the ‘legal actors’ involved in the proceedings implement court processes so the wellbeing of the participants are not negatively affected. The formality of the family law system is a barrier for Aboriginal clients of low socio-economic status as the complexities of the legal system can exacerbate feelings of helplessness.

Therefore, the judges and lawyers involved at MNG encourage the engagement of all parties in the decision-making process to alleviate feelings of fear and vulnerability inherent in interacting with ‘traditional’ judges. Consequently, participants feel more validated and self-determined to motivate behavioural change. Compared to traditional family courts, family courts implementing therapeutic jurisprudence principles during the management of child maltreatment cases, lead to an increased chance that the child is ultimately returned to their parents. Therefore, the use of therapeutic jurisprudence principles and informal court processes at MNG is appropriate for the needs of the court participants as Magistrate Hawkins repeatedly reiterated that the ideal resolution from family law proceedings is the return of the child to their parents. Formalistic processes are not appropriate for MNG, as they can be very overwhelming for the participants. Resolutions that were ‘in the best interests of the child’ ultimately came about from cooperation and overcoming the barriers resulting from a lack of legal knowledge.

The informal nature of MNG is a strength of the non-adversarial processes as the inherent “win lose” nature of adversarial processes can exacerbate animosity between parties which can be counterproductive to reaching agreements that are in the best interests of the child. For example, during the court observations, there was tensions when each party gave their respective account of where the child wanted to live, which was inevitably subject to distortion. In this case, cooperative negotiations eased tensions, as well as increasing the probability of disputant acceptance of court outcomes as they feel like they’ve been heard.

However, integrating a ‘mediator’ role into the traditional notion of a ‘judicial role’ could potentially be a weakness of non-adversarial processes. Arguably, the increased engagement between judges and offenders could lead to more offender-focused proceedings thus undermining the judge’s objectivity. Furthermore, the lack of formal training in inquiry skills could mean those in a judicial role are not sufficiently equipped with the skills to lead discussions and identify key issues. This could potentially lead to rulings that are less informed by fact, especially as evidence is not usually used during contest mentions. At MNG, this did not seem to be an issue as it was clear that Magistrate Hawkins maintained an appropriate level of objectivity when interacting with the parties. However, this could be because of her extensive experience participating in less-adversarial processes.

Cultural Sensitivity

The ‘Stolen Generation’ was a government policy involving the institutionalised forced removal of Aboriginal children from their families under the premise of benefiting the children’s welfare by taking them from ‘impoverished’ living situations. These past policies have created perceptions of dis-empowerment and the development of a ‘transgenerational legacy’ of distrust towards the family law system. Nowadays, there is legislation enforcing cultural sensitivity during court proceedings by requiring the courts to consider the effect of parenting orders on the child’s right to enjoy their Aboriginal culture. MNG approaches family law using a culturally appropriate framework for the non-adversarial processes, with continuous acknowledgement of the Aboriginal community’s turbulent past with the legal system. Continual exposure to one’s culture helps to maintain their community identity which they can find their personal value from, and prevent the decimation of their sense of belonging, which is especially important for the children involved.

During the proceedings I observed, Aboriginal cultural advisers promoted cross-cultural understanding and cultural norms to prevent communication breakdown. For example, I observed that the Magistrate ordered a cultural support plan endorsed by VACCA, an Aboriginal organisation specifically formed to take responsibility over Children’s Court cases. This is appropriate to the needs of all participants by having their case managed by an organisation with extensive knowledge of the Aboriginal culture to ensure Aboriginal practices and values are respected when determining what is best for the child. Cultural sensitivity also extended to the court processes by acknowledging childrearing values, such as extended family support and flexible child-care arrangements to prevent bias caused by a Western conceptions of an ideal nuclear family structure that predominates the family law system. For example, I observed the primary caretakers, the paternal grandparents, making submissions and contributing on behalf of the father. Giving extended family members the power to contribute to discussions that determine court outcomes acknowledged Indigenous childrearing practices that don’t emphasise Western ideals of stability and permanence.

The inclusion of the Aboriginal cultural adviser and implementation of culturally appropriate care plans was also a strength of the processes I observed. It was clear from observing MNG that the involvement of cultural advisers and VACCA, seemed to comfort the participants so they were prepared to candidly discuss personal issues. The court’s emphasis on the child’s cultural needs for future care arrangements helped to reduce the fear of decimation of cultural identity that deters individuals from participating in family law proceedings. These practices encourage pride in their cultural heritage and prevent the long- term negative effects of being involved in the child welfare system.

Legal Reform

There benefits of culturally appropriate parenting arrangements and the incorporation of cultural advisers, such as overcoming a lack of knowledge about the legal process, highlighted the need for a greater emphasis on cultural competence during family law proceedings. This highlighted the need for a greater emphasis on cultural competence during family law proceedings. These cultural considerations would also benefit other culturally and linguistically diverse clients that enter the family law system. Culturally considerate processes would be particularly beneficial for recent immigrants that have experienced a change from a collectivist culture, so that Western family law proceedings are more considerate to child-rearing practices of the ‘dominant’ culture to assist with acculturation. Observing MNG highlighted that the need for the establishment of more ‘mainstream culturally responsive’ services for families from diverse cultures, to better facilitate finding the best outcome for the child.

Reflection

I found the level of Magistrate Hawkin’s sympathy and deep consideration for the wellbeing of the ‘offender’ to be surprising. In some of the cases, the parents had been neglectful or even abusive to their children, which traditionally would lead society to treat those people with less understanding because of the severity of their actions. However, the Magistrate regularly expressed her sympathies and empathised with the stress of the legal process. While I knew that the Magistrate would be professional, I did not expect that she would be so sympathetic and consider their wellbeing as much as the child’s. This is especially because I have previously watched more adversarial court cases where the Magistrate is stern and seemed to lecture the offender about the severity of their actions.

The most meaningful change in my thinking came from observing the way that the magistrate considered the emotional impact of the court case not only for the child, but also the parent, even if they were the ones that had inflicted the harm. I have previously observed court cases that implemented therapeutic jurisprudence practices where there was no clear “victim”, and thus I was surprised that the consideration of mental wellbeing extended just as much to the ‘offender’. However, after learning about the extent of the persecution of Aboriginal communities and difference in parenting practices, it made me realise that it was also important that the accused’s psychological well-being was considered especially where the ideal resolution is the return of the child to their parents. This is something that challenges my thinking about non-adversarial justice. My degree has taught me the rehabilitative function of the Courts. However, I always thought that the legal system should provide justice to victims through stricter punishments, without considering that sometimes the outcome that is in the best interests for all parties may not always mean a decision that ‘punishes’ the offender.

While observing the informal legal processes, I made connections with my own legal experience. During my law course, much of the content that we learn about involves formulaic fact analysis within an ‘adversarial’ context. The processes I observed and the roles that each party took was very different to the way I previously perceived courts to be run. While the Magistrate and lawyers at MNG very carefully analysed the participants’ backgrounds to determine the next best course of action, this is a legal skill that is very rarely taught during my course.

We are taught to analyse facts and find evidence in light of what would be beneficial for our client, much like adversarial processes used in a courtroom. I think that observing the way that the lawyers and participations conducted civilised discussions about quite emotionally charged issues is useful for me to implement in legal practice. The non-traditional role of the lawyer, as a guide, is something that I think would be valuable to incorporate into practice especially when practicing in areas of law where there is a lot of conflict. While adversarial systems emphasise a “win-lose” mentality, observing a solution-focused court showed me the value of cooperation and client lead discussions, in order to find resolutions that both parties can accept.

While non-adversarial processes are an efficient way of conducting court proceedings, there are still areas for improvement. While Magistrate Hawkins was familiar with using culturally sensitive processes, many judges have not had any formal training in relation to cultural considerations. More efficient communication between decision-makers and participants could be facilitated by integrating cross-cultural training, so that those in a judicial role are more familiar with culturally and ethnically diverse practices.

Furthermore, non-adversarial processes could be improved by implementing more timely resolution of family law disputes. The family law proceedings can involve lengthy periods of ambiguity when there are delayed resolution of disputes. Even at MNG, several of the cases had carried on for several months before a long-term resolution was reached. Non-adversarial court processes should have magistrates/ judges handling the same cases, to increase the efficiency of case management, such as at MNG. There should also be more emphasis on preventing parties from causing delays in proceedings by imposing a statutory duty for parties and lawyers to cooperate in order to resolve disputes as efficiently as possible.

Conclusion

In conclusion, the non-adversarial processes that I observed at MNG have transformed the family law system by implementing more culturally considerate and informal court processes that address the needs and limitations of those coming into the family law system. The court processes as well as the non-traditional roles that individuals interact with each-other help to overcome the barriers that Aboriginal people may face. These processes have arisen out interpretation of current legislative provisions which encourage less technical and more informal court processes that facilitate cooperation between parties. Observing the non-adversarial processes highlighted the need and benefits for culturally sensitive processes for not only the Aboriginal communities, but also other cultures involved, especially if their culture holds views that differ from a traditional ‘nuclear family’ model. The court processes at MNG challenged my thinking about what constitutes non-adversarial processes and especially the importance of cultural competence and adoption of on-conventional roles of legal actors to benefit the parties involved.