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Sharia and the Australian Family Court

Culturally diverse mediators are easing the caseload on an overburdened Family Court system.

Legal Aid is training CALD (culturally and linguistic diverse) mediators to facilitate culturally-specific consent orders that can be signed off before cases reach a Family Court hearing.

For Sheikh Haisam Farache, the role of mediators formally recognises what he’s been doing for years – applying Sharia to arbitrate family disputes and avoid a long and painful journey through the court system.

Farache, a family lawyer and university lecturer who is also known as the 'surfing sheikh', is one of the mediators being trained by Legal Aid. He says he has been applying Sharia during stints as an imam at Artarmon and Lakemba mosques, where he typically facilitated “two or three mediations a day”. If legal action was concurrent around that mediation, the two parties could then go to court to get a legal “seal” on their negotiations – and in many cases, approving an agreement that had its foundation in Sharia.

The Howard Government introduced mediation in 2005 and Farache says that, in effect, “Sharia has been playing out in the Australian Family Court since then”.

And, he says, Sharia and the Australian law aren’t so far apart – a major difference being that pre-marital financial agreements between Muslim families are typical, while pre-nuptial agreements carry minimal legal weight in Australian law.

In Sharia, according to Farache, the mother traditionally receives primary custody of young children and the father is financially responsible for them - an outcome not uncommon in Australian family courts.

Farache says mediation and the application of Sharia can avoid the all-too-common situation when non-custodial parents – usually fathers - have to go through long drawn out cases, often without seeing their children, with no apparent end in sight.

“The mother gets legal aid, usually gets a female lawyer, and tells her lawyer a story who writes a big affidavit. After the father’s spent $70-80k on lawyers, the court decides he’s a good dad – and that’s money down the drain. That money would’ve been better spent on the child.”

He says the Family Court is an imperfect system, and hopes that he, along with two other Muslim mediators, Egyptian and Lebanese Christians, South Americans, Chinese and Indian Sikh and Hindu mediators can prevent money going into the purse of family lawyers, or draining public funds.

“Family Dispute Resolution helps people stay out of court, which is usually associated with delays, expense and more emotional and financial stress..."

– Annmarie Lumsden, Acting Executive Director of Family Law at Legal Aid NSW

Legal aid accommodating diverse communities

Legal Aid began training culturally diverse mediators on how to conduct family dispute resolution conferences (often held as phone conferences) in 2011. “This initiative came about after evidence showed clients from these diverse backgrounds were less likely to avail themselves of mediation services to resolve their disputes,” said Annmarie Lumsden, Acting Executive Director of Family Law at Legal Aid NSW.

It allows couples separating to undertake Family Dispute Resolution Program with culturally diverse mediators who speak a range of languages including Urdu, Hindi, Punjabi, Mandarin, Cantonese, Malaysian and Indonesian and various Arabic dialects.

“These mediators understand the language and cultural backgrounds of families as well as the family law system and can conduct family law mediations that are recognised under the Family Law Act. They can help bridge the gap in access to family mediation services for people from a multicultural background,” Lumsden said.

“Since the initiative started, we have seen an increase in the use of mediations in family disputes with clients from a multicultural background, which is a great success.”

“In 2013-2014 we held more than 100 family dispute resolution conferences involving clients from a culturally and linguistically diverse background and we are proud of this development.”

“We give clients a choice about whether they want us to try and obtain someone from their own cultural and linguistic background to act as a mediator. In many cases they choose not to have someone from their background, or they indicate that they have no preference either way.”

It’s an “extremely distressing and difficult time in their lives”, she said, and this “can hopefully ease the stress somewhat.”

“Family Dispute Resolution helps people stay out of court, which is usually associated with delays, expense and more emotional and financial stress. It is important that as many members of the public as possible can access these (mediation) services,” Lumsden said.

Sharia and Australian law

Ghena Krayem, author of ‘Islamic Family Law in Australia: To Recognise or Not To Recognise’ and senior lecturer at the University of Sydney, is another CALD mediator and said, “Muslims are living in the Australian context. Some people’s conflict is solved amicably, while other parents won’t show the other their kids... It’s just the same – it’s across the board. The conflict that occurs in divorce has no culture, and people use their children against each other.”

Such is the sad story of many families that find themselves before the courts.

“There’s room for accommodation of diversity within the Family Law system. It’s a matter of how existing community processes could be incorporated into family law. Australia is a multicultural society – any legal system needs to adapt to its people, and respond to diversity.”

“It’s not about breaking up society, but bringing people together under the one system.”

In family law, mediation is highly encouraged and there should be “community interaction as long as community leaders engaged in it are trained up as mediators... not every imam is a great communicator,” she said, and pointed to a finding of the Family Law Council in 2012 that said there’s room for mediators who aren’t imams.

“Islamic principles of dispute resolution don’t conflict with the Family Law Act... We need to encourage people to reach their own agreements as court cases are costly and take a long time to get heard.”

Not all cases are suitable for mediation, such as when serious allegations of domestic violence have been made, she said.

Misunderstandings of Sharia

Krayem says there are many misunderstandings of Sharia. For example, many Australians regard it as sexist that a man receives twice as much inheritance as his sister, but in the Islamic context, men financially provide for women. “They are financially responsible for their wife, sisters, and mothers... Women are not under pressure to earn money.”

Sex within marriage requires consent, and forced marriage has no place in Sharia, she said.

While she concedes that “It is easier for men to obtain a religious divorce,” the fact is that Australian Muslims have a 36 percent divorce rate.

For Haisam Farache, it’s about including his faith in the Australian way.

“There’s a great misunderstanding of Sharia,” he said. He said that, along with the Magna Carta, it has laid foundations for many aspects of western law: the power of attorney, trusts, crimes (although punishments differ), contracts, the adversarial legal system; and the rule of law in the first instance – a standard that everyone follows.

“This is what Islam can offer, if you’re interested... My faith isn’t one of revolutions, it’s one of social justice and if that can be turned into legal justice, then great.”

He said there’s a need for collaborative law, where lawyers sign an agreement rather than an adversarial trial, and arbitration should set out principles if there’s a disagreement.

“It’s beneficial to society, law, treasury and the public,” Farache said.

The Point

Culturally diverse mediators are easing the caseload on the overburdened Family Court system

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