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Journal article

Indigenous access to family law in Australia and caring for Indigenous children

12 Apr 2017


In Australia, child protection law and family law perform different functions in relation to children. On one hand, child protection law is legislated by the states and territories and is considered to be an area of public law. Child protection law can be viewed as a more reactive model of protection, as child protection authorities become involved with a family after there is an allegation of risk of harm to a child. Ideally, prevention and support services intervene early to ensure the safety and wellbeing of children and family preservation; however, sometimes, (and this is the worst-case scenario) a child may be removed from their family without notice.

On the other hand, family law is an area of federal law and is considered to be an area of private law. Family law can be viewed as more proactive than child protection law, in that families can create solutions relating to the care and living arrangements of children via processes of mediation or, as a last resort, litigation in a post-separation context.

The federal family law system provides for the rights and needs of Indigenous children, particularly the right to cultural identity. Family law also protects particular characteristics unique to Indigenous children such as the right to enjoy their own culture and the need to have their identity positively fostered and supported. Family law courts examine a child’s situation and circumstances carefully and support placements with culturally appropriate carers in the context of the best interests of the child.

Conversely, state child protection systems are failing Indigenous children and their families. The relationship between Indigenous people and the child protection system in Australia is characterised by the alarmingly large number of Indigenous children who are removed from the care of their parents, and the deep dissatisfaction of Indigenous communities with this process. There is a lack of compliance with the Aboriginal and Torres Strait Islander Child Placement Principles (‘ATSICPP’) and cultural care plans are inadequately prepared for Indigenous children by child protection departments.

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