"Why is my family's dispute a legal problem?" The experience of South Sudanese Jieng families with family law in Australia

Author: Buol Juuk

Juuk, Buol, 2021 "Why is my family's dispute a legal problem?" The experience of South Sudanese Jieng families with family law in Australia, Flinders University, College of Business, Government and Law

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For the families from South Sudanese Jieng communities in Australia, the concept of family law may be unfamiliar as formal family law legislation does not exist in South Sudan. Instead, disputes relating to marriage, separation, divorce, and care arrangements for children have traditionally been dealt with within families or a community setting rather than by government statutory authorities. Despite the growing body of research on South Sudanese settlement challenges by non-South Sudanese in Australia, little is known of the Jieng families’ experience of family law disputes in South Sudan or Australia from their own perspective. The overall picture that emerges from the research conducted has been negative; South Sudanese communities have been criticised for their failure to adjust to the Australian way of life. At the same time, they face difficulties in understanding and following Australian law as well as their customary family law, and they struggle to accommodate their family law customs.

This thesis intends to fill this gap in the literature by documenting and analysing the experiences of Jieng families in relation to marriage, divorce, and disputes over the care of children in South Sudan and Australia. First, the thesis examines the practice of customary family law among Jieng communities in South Sudan and the changing nature of this practice due to the impact of conflict, the experience of displacement to refugee camps, and of resettlement in Australia. To this end, the thesis critically reviews the statutory and customary laws of South Sudan regarding marriage, divorce, and dispute over the care of children. It then analysis how family law disputes are resolved through the formal legal system within Australia. The thesis argues that current formal family dispute resolution has not been effective as it is pedantic and consequently creates obstacles for the participation of the Jieng families and other similar groups.

Secondly, the thesis presents original, empirical qualitative research to highlight the cultural legal clashes experienced by the Jieng communities in adapting family law and practices in Australia. The research includes two focus groups of thirty-two participants and involved in-depth interviews with ten Jieng families who have experienced separation, divorce, and co-parenting disputes in Australia.

This thesis is significant since it contributes to the growing body of research on South Sudanese settlement in Australia. It adds to existing research concerning the experiences of migrants and refugees when faced with navigating the Australian legal system. Previous research has identified that vulnerable groups such as migrant and refugee communities do not use the formal legal system to resolve family law disputes; nevertheless, there has been little consideration as to why this is the case. This provides the critical gap in the research. The thesis identifies strategies that may assist in prevention and early intervention of family disputes among Jieng families and other cultural groups before statutory Australian family law becomes necessary. Further, this thesis may also shed light on approaches to mediating conflicts between customary and Australian law in other cultural groups, including the Australian Indigenous peoples and those of other jurisdictions across the globe where refugee populations are growing significantly. Thus, this thesis will impart knowledge to service providers, practitioners, and communities about how best to support South Sudanese families and other groups with similar practices in Australia and beyond.

It is concluded that an alternative dispute resolution approach known as restorative family dispute resolution may be a solution for South Sudanese Jieng families and other similar groups including the Indigenous Australians. The approach argues that this model should be recognised alongside the formal family dispute resolution (FDR) currently on offer across the sixty-five Family Relationship Centres in Australia (FRC).

Keywords: Family Law, Family Dispute Resolution, Jieng Customary Law, Refugee, Restorative Family Dispute Resolution, Marriage, Divorce and Child Custody

Subject: Law thesis

Thesis type: Doctor of Philosophy
Completed: 2021
School: College of Business, Government and Law
Supervisor: Dr Angela Melville