16.62 Submissions indicate that the relationship between Indigenous people and the Family Court is problematic. This may be the result of a historical legacy including
…an association of the Court with previous ‘welfare’ policies which resulted in the removal of indigenous children from their families.
Australia’s Indigenous population is predominantly young. This highlights the importance of ensuring that Indigenous families are properly served by the Family Court. Initiatives in recent years are making the Family Court more aware of issues of concern to Indigenous families and children.
16.63 The Family Law Act explicitly requires the court to take into account ‘any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders’ in assessing a child’s best interests. In B and R and Separate Representative the Full Court held that the Family Court has an obligation to receive evidence relevant to the unique experience of Indigenous Australian people in determining the best interests of Indigenous children.
16.64 The Family Court is also taking administrative steps to facilitate the participation of Indigenous people in family law processes. It has established the Aboriginal and Torres Strait Islander Awareness Committee to consider the extent to which Indigenous people use the court, to increase the awareness of officers of the court of problems confronting Indigenous people and to make the services of the court more relevant to Indigenous people.
16.65 These developments are relatively recent and progress is currently affected by funding constraints. Their impact is yet to be fully realised. The relevance of the court to Indigenous families and children will be affected by the extent to which the court is able to take account of the involvement of extended families in dispute resolution and of the extent of family violence in family breakdown among Indigenous communities.
16.66 Statistics kept by the Family Court do not record the Aboriginality of parties or children who are the subject of proceedings. This makes monitoring the effects of the initiatives almost impossible. The Family Court is presently considering how it can best collect the statistics suggested in DRP 3. National Legal Aid suggested that keeping statistics on Aboriginality ‘…could result in improper manipulation and misrepresentation of Aboriginal litigants by assorted community groups’. However, the collection of these statistics is justified by the importance of an accurate understanding of the extent and manner of use of the court by different client groups and particularly Indigenous people. As the submission from the Education Centre Against Violence noted, ‘[a]ccess to justice has not traditionally been equitable for indigenous people and specific strategies should address this’.
Recommendation 154 The Family Court should continue to promote the access of Indigenous families and children to the court and continue its work in liaising with Indigenous communities.The court should continue research to ensure that its processes are adapted to take account of the dynamics of dispute resolution among Indigenous communities, particularly in relation to the involvement of extended families and family violence.
Implementation. The Family Court should undertake research in consultation with relevant community organisations and maintain programs to ensure appropriate access of Indigenous children and families to the court.
Recommendation 155 The Family Court should take urgent action to collect and publish comprehensive statistics in relation to the number of applications made to the court involving Indigenous parties or children. Statistics should be collected and maintained regarding the passage of those applications through the court and their outcomes.
Implementation. The Family Court should establish a database, collect these statistics and publish them in its Annual Report.
Children from non-English speaking backgrounds
16.67 Many people from non-English speaking backgrounds have difficulty accessing Family Court services. This may be due to language or cultural barriers. Some communities are unfamiliar with the notion of a court determining family disputes and have traditionally relied upon extended family networks to assist in the resolution of family disputes. However, for many families those extended family networks are not available in Australia. It is important that the Family Court be accessible and relevant to all Australians, particularly to those families which may be suffering some social and cultural dislocation as well as the trauma of family breakdown. To address these issues, the Family Court has introduced a number of strategies to make it less intimidating for people, such as producing information audiotapes and pamphlets in community languages. None of the initiatives is aimed specifically at children.
16.68 In its report on Multiculturalism and the Law, the ALRC recommended that all federally funded support services, including the Family Court, have a component included in their grants or budgets to be applied to developing comprehensive and detailed access and equity plans. These plans could be of particular benefit in assisting the Family Court to eliminate barriers to people of non-English speaking background, including children, accessing its services.
16.69 The House of Representatives Standing Committee on Community Affairs recently made a number of recommendations to promote access and equity principles in the provision of government services. For example, the Committee recommended that cross-cultural communication training be incorporated as an essential element of staff development across all levels of government and that the practice of supplementing interpreting and translating services by the employment of bilingual/bicultural staff be adopted across all government agencies that provide services. The Inquiry supports the implementation of these recommendations in the Family Court. The Family Court has pointed out that there is a limited budget for interpreters.
Recommendation 156 The Family Court should develop an access and equity plan to assist it in eliminating barriers which people of non-English speaking background, including children, experience in accessing its services.
Implementation. The Family Court should develop this strategy.
Children in rural and remote areas
16.70 The Family Court has 21 registries or sub-registries throughout Australia located in capital cities and some major regional centres. Outside these urban centres, applicants may choose to make use of the State or Territory magistrates’ court network which has been invested with family law jurisdiction. The Family Court provides some counselling services on a circuit basis but there may then be difficulty in accessing them in a timely manner. Remote areas have no access to counselling services. The alternative to these options for people in rural or remote areas is to travel sometimes very long distances to the nearest Family Court. The ability of people living in remote areas to obtain access to the Family Court is an issue of particular concern to Indigenous communities.
16.71 The court has indicated its willingness to travel to some remote locations. However, as the court points out, these services are costly and cannot presently be provided at the level required. Access to the court may also be provided for people in rural and remote areas by the greater use of processes such as video-links or telephone services. The Family Court is able to hear evidence or sub-missions by video link or telephone from any place within or outside Australia. Before doing so, the court must be satisfied that the arrangement is more convenient than requiring live evidence or submissions. Full use should be made of this capacity. The Inquiry is aware that one registry has a toll free number. This service should be expanded, promoted and resourced on a national scale.
16.72 In general, however, the Family Court will only remain accessible through the maintenance of its regional registries. The Family Court is aware of the priority of this issue and noted in its submission that registry closures ‘were the least favoured option of the court’, a step taken only after other measures were instituted. Counselling circuits to rural areas should be maintained at an acceptable standard particularly if court counsellors take on a greater investigative role. The Inquiry’s recommendations concerning the introduction of a specialised family and children’s magistracy and a specialist federal magistracy should assist in the provision of family dispute resolution services in rural areas.
Recommendation 157 Closure of Family Court registries should be treated as a least favoured option for dealing with funding constraints in the Family Court. The continuation of circuits of the counselling service to rural and remote areas is particularly important. The Family Court should attempt to expand or promote on a national scale toll free telephone access to the court. It should consider making greater use of its ability to take evidence by video link or telephone, particularly from parties living in rural or remote communities.
Implementation. The Family Court should investigate the use of communication technologies to provide greater access to Family Court services for rural families and children.
Young people with intellectual disabilities
16.73 The needs of children with disabilities must be considered by the Family Court in determining any parenting orders. Specialist skills may be needed in providing reports and expert advice to the court when the children involved have special needs. Reports ordered under O 30A of the Family Law Rules may be particularly relevant here. This may include advising on the support needs of the child and devising suitable options for the care of the child. The guidelines in Re K on appointing a child’s representative do not refer specifically to children with disabilities. However, the criteria in that case are wide enough to ensure that children with disabilities are provided with a child’s representative as appropriate. Sensitivity and care are required to ensure that children with disabilities can participate in the decision making process to a degree commensurate with their abilities and willingness.
16.74 Of particular relevance to children with disabilities is the Family Court’s statutory welfare power. This power has been used to authorise special medical procedures for children, most frequently the sterilisation of young women with profound intellectual disabilities.
16.75 States also retain the right to determine sterilisation applications for children with intellectual disabilities. The Family Court has developed co-operative arrangements with other relevant agencies in Victoria and Queensland in regard to sterilisation applications. Children with intellectual disabilities should not be sterilised without approval from either the Family Court or a State or Territory authority such as the NSW Guardianship Board but evidence indicates that many unauthorised operations are performed. Approval rates vary greatly. Since January 1994 the NSW Guardianship Board approved only one out of seven such applications brought before it while the Family Court approved the procedure or refused to exercise jurisdiction to prevent it from being performed in seven of the eight reported cases it has dealt with.
16.76 One submission to the Inquiry urged an awareness that parents with children with a profound disability struggle for many years to facilitate their children’s development and provide for their basic care. The submission urged
…consideration of these issues needs to be a two way street, because at the end of the day it remains the parents of the young people and young adults who provide their primary care…
There can be little disagreement with this but the procedure is one of such significance that taking the decision to an independent third party is in all parties’ interests. Parents must be given every opportunity to consider alternatives to sterilisation procedures. In fact, the Family Law Rules require affidavits to be filed indicating that the procedure is necessary and there is no appropriate alternative.
16.77 Although the Family Court has accepted the need for guidelines for these proceedings, no comprehensive or detailed guidance is available. DRP 3 suggested that further guidance is needed to ensure that the procedures are used only when strictly necessary in the best interests of the child. That suggestion received some support in submissions. The Family Law Council has also recommended that appropriate guidelines be developed. National Legal Aid disagreed with the draft recommendation, arguing that ‘….such guidelines already exist in the Family Court and are contained in the Family Law Act’. It also argued that this may throw up a new threshold test of ‘strictly necessary’. However,the numbers of sterilisations apparently performed without court approval indicate the need for guidelines to ensure that an application is approved only as a last resort.
16.78 Concerns have been raised about the child’s right to participate and be heard in sterilisation application proceedings and the standard of advocacy provided to them. The degree of participation of children who are the subject of the application should depend on individual capacity — clearly a 16 year old with a mental age of 7 is still capable of expressing an opinion. The child may, and generally would, be appointed a next friend or child’s representative for the hearing.
16.79 A number of submissions expressed some concern that DRP 3 dealt with only sterilisation of young women with intellectual disabilities. One submission urged that ‘…neither the Commissions nor the implementers of this report be entrapped by the emphasis upon sterilisation alone’. Another submission urged that the Inquiry ‘recognise the far reaching implications for children’ of the statutory welfare jurisdiction of the court. The submission pointed out that equivalent jurisdictions internationally have addressed a broader range of procedures than sterilisation of intellectually disabled young women and that the Australian jurisdiction is beginning to deal with a broader range of matters.
16.80 One submission proposed that guidelines be developed to encompass the range of procedures that may be sanctioned under the special medical procedures provisions of the Family Law Rules. It argued for further direction to ensure that the court is able to take account of the wishes of the child in all these cases. Recommendations 70-76 deal with the requirements of a legal representative for children before the Family Court. These requirements provide an appropriate level of participation for children, commensurate with the ability and willingness of the child concerned to participate. The recommended guidelines in relation to the welfare jurisdiction should include an express requirement that the child participate in the proceedings to the extent that he or she is able and willing to do so.
Recommendation 158 An awareness campaign should be conducted to provide medical practitioners with information about the legal requirements for approval for the conduct of sterilisation operations on young people with an intellectual disability.
Implementation. The Attorney-General, through his department, should co-ordinate and conduct this campaign.
Recommendation 159 Research should be conducted to establish the comparative levels of approval of sterilisation applications in each jurisdiction by the various courts and bodies with this responsibility. This research should investigate the reasons for any discrepancy to ensure that procedures allow for appropriate exploration of alternatives to the sterilisation application.
Implementation. The Family Court should conduct such research in co-operation with relevant State and Territory agencies.
Recommendation 160 Guidelines should be developed to regulate the pre-hearing processes for applications for approval of special medical procedures under the Family Court welfare jurisdiction. These guidelines should ensure that the procedures are used only where strictly necessary in the best interests of the child. The guidelines should require that parties be provided with information about all alternatives to the procedure, that all options have been explored prior to the hearing and that suitable counselling has been undertaken. They should also ensure that the child has participated as appropriate.
Implementation. The Family Court should consider developing such guidelines for inclusion in O 23B of the Family Law Rules or in case management guidelines as appropriate.
 eg Aboriginal Legal Service of WA IP Submission 75; Oz Child Legal Service IP Submission 195. In this regard see particularly National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families Bringing Them Home HREOC Sydney 1997.
 A Nicholson ‘Family Court initiatives with Aboriginal and Torres Strait Islander communities’ (1995) 3(76) Aboriginal Law Bulletin 15. It is estimated that between 1883 and 1969 in NSW one in six Indigenous children were taken from their parents: ALRC Report 31 The Recognition of Aboriginal Customary Laws AGPS Canberra 1986, 234-235. See also National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families Bringing them Home HREOC Sydney 1997, 36–37. This report cites studies that place the extent of removal higher than this.
 See para 2.5.
 Family Law Act s 68F(2)(f).
 In that case the court noted that ‘[t]he history of Aboriginal Australians is a unique one, as is their current position in Australian life. The struggles which they face in a predominantly white culture are, too, unique. Evidence which makes reference to these types of experiences and struggles…addresses the reality of Aboriginal experience, relevant as that experience is to any consideration of the welfare of the child…’: B and R and Separate Representative (1995) FLC ¶92–461.
 A Nicholson ‘Family Court initiatives with Aboriginal and Torres Strait Islander communities’ (1995) 3(76) Aboriginal Law Bulletin 15. To this end, judicial officers and court staff have been or are to be provided with cross-cultural awareness training and a component of the child representative training course concerns representation of Indigenous children: National Training Program for the Separate Representatives of Children Appointed under the Family Law Act in the Family Court of Australia College of Law, Law Council of Australia & Legal Aid Commission Canberra 1996. In addition, several Aboriginal family consultants have been appointed in the NT and in North Qld: Family Court of Australia Annual Report 1994–95 Family Court of Australia Sydney 1995, 7.
 See eg Chief Justice’s Chambers Family Court of Australia DRP Submission 64.
 See P Grose ‘An Indigenous imperative: The rationale for the recognition of Aboriginal dispute resolution mechanisms’ (1995) 12(4) Mediation Quarterly 327.
 Chief Justice’s Chambers Family Court of Australia DRP Submission 64.
 DRP Submission 58.
 DRP Submission 43. See also P Eastaugh DRP Submission 29.
 Family Court of Australia Annual Report 1994–95 Family Court of Australia Sydney 1995, 9–10, 18.
 Report 57 Multiculturalism and the Law ALRC Sydney 1992, 89. It was anticipated that the plans would outline what the service does or proposes to do to identify and overcome barriers to the use of the service.
 A Fair Go For All: Report on Migrant Access and Equity AGPS Canberra 1996.
 id 48.
 id 88.
 Chief Justice’s Chambers Family Court of Australia DRP Submission 64.
 Australian National Audit Office Use of Justice Statement Funds and Financial Position: Family Court of Australia Audit Report No 4 1996–97 AGPS Canberra 1996, 9.
 For a fuller discussion of the exercise of federal jurisdiction by courts of summary jurisdiction, see ch 15.
 Family Court of Australia Annual Report 1994–95 Family Court of Australia Sydney 1995, 7.
 Family Law Rules O 30 r 2AAA.
 Family Law Rules O 30 r 2AAA(3), (4).
 Chief Justice’s Chambers Family Court of Australia DRP Submission 64.
 See rec 80.
 See recs 130, 132.
 Mental Health Legal Centre DRP Submission 54 suggested that ‘…the recommendations should [deal with] the needs and rights, including resources and supports required, by children and young people with any disabilities. The scope for addressing service and support needs in the context of family law proceedings should be explored’.
 See para 16.41.
 (1994) FLC ¶92–461, 80, 758. One criterion suggests that a representative be appointed ‘[w]here there are issues of significant medical, psychiatric or psychological illness…in relation to either party or a child’ (80,774). This would ensure that many children with disabilities would be provided with a representative. There is also provision for a representative to be appointed in relation to applications in the court’s welfare jurisdiction (80, 775). This is discussed later in this section.
 Family Law Act s 67ZC.
 Family Law Rules O 23B r 1; Secretary, Dept of Health & Community Services v JMB & SMB (1992) 15 Fam LR 392 (Marion’s case); P v P (1994) 17 Fam LR 457.
 As a result of constitutional limitations, the court can only exercise this power in relation to young women who are the children of a marriage or ex-nuptial young women resident in the Territories. However, see rec 123.
 S Brady ‘Invasive and irreversible: The sterilisation of intellectually disabled children’ (1996) 21 Alternative Law Journal 160, 163.
 H Carter ‘Disabled girls “illegally sterilised”‘ The Advertiser 15 April 1997; M Sweet ‘Court warns doctors on illegal sterilisation’ The Sydney Morning Herald 16 April 1997. See also S Brady ‘The extended jurisdiction — Potential hearing impairments in the legal process’ Paper 29th Australian Legal Convention Law Council of Australia Brisbane 24–28 September 1995, 106.
 J Ford ‘The sterilisation of young women with an intellectual disability: A comparison between the Family Court of Australia and the Guardianship Board of NSW’ (1996) 10(3) Australian Journal of Family Law 236.
 P Eastaugh DRP Submission 29.
 O 23B r 5.
 See S Brady ‘The extended jurisdiction — Potential hearing impairments in the legal process’ Paper 29th Australian Legal Convention Law Council of Australia Brisbane 24–28 September 1995, 107.
 Draft rec 8.23.
 Education Centre Against Violence DRP Submission 43; the Autistic Association of NSW DRP Submission 40; S Brady DRP Submission 49.
 Family Law Council Sterilisation and Other Medical Procedures on Children AGPS Canberra 1994, 62.
 DRP Submission 58.
 See eg S Brady ‘Invasive and irreversible: The sterilisation of intellectually disabled children’ (1996) 21 Alternative Law Journal 160, 162. See also S Brady IP Submission 153.
 Brenda House DRP Submission 65 noted that ‘…caution must be exercised when considering the opinion of an intellectually disabled teenager…Their wishes may be a long way from reality ‘.
 Family Law Rules O 23B r 7.
 Autistic Association of NSW DRP Submission 40; Mental Health Legal Centre DRP Submission 54; S Brady DRP Submission 49.
 Autistic Association of NSW DRP Submission 40.
 S Brady DRP Submission 49. See also rec 123.
 See eg GWW & CMW (unreported) Family Court of Australia 21 January 1997.
 O 23B.
 S Brady DRP Submission 49.
 The Family Court has held that a child’s representative should generally be appointed in matters under the court’s welfare jurisdiction and particularly under the special medical procedures provisions: Re K (1994) ¶92–461, 80,775.