“I think sharing sensitivity to the different Chinese values with your client would make them feel that you understand them. I think that’s very important.”
An interview with Melissa Tsui, Principal Lawyer
As family lawyers, we help our clients navigate through some of the most challenging and critical times of their lives. It’s important that we continually ask and question how we can do better – how we can improve the process and the system for those going through it. Practitioners are constantly trying to learn.
Looking at barriers means not just about looking at the institutions and the legal requirements, but also about the perspectives of individual people. People who look to and rely upon the family law system to resolve their problems.
My good friend and colleague Melissa Tsui agreed to sit down and discuss barriers to the family law system in Australia, from a cultural perspective. Mel is uniquely placed as a family lawyer of Chinese descent who grew up in Australia. She understands the family law system and the Australian culture in which it operates and Chinese custom and culture.
On what Mel believes to be the most significant reason why a Chinese-Australian might be reluctant to consult a lawyer in the event their relationship breaks down.
I think it’s very important to understand that people might not be confident with English. That’s the first thing. They might feel awkward expressing themselves in a language that they’re not comfortable in.
Secondly, trying to articulate their situation, which they understand differently from the Australian legal system.
For instance, if a husband and wife were holding property and they have properties in their own separate names. Being the firstborn son, the husband would usually hold assets that are on behalf of his parents. In Chinese culture, the oldest son has a unique and special placing in the family. With that, it comes with obligations of looking after the parents, looking after other siblings and things like that.
In the Australian system, the husband will be seen as, “Oh, he’s got all these assets under his name.” However according to the Chinese customs and culture, those assets technically belong to his parents, and he’s just holding it on behalf of his parents, as an early inheritance of some sort. Like most laypeople who go through a court case, a person of Chinese descent who isn’t confident in English will find the whole process even more daunting. They might not quite understand why a judge, who is usually not of the same background, has made a decision about their lives.
On Chinese-Australians’ potential reluctance to share or discuss personal issues.
Chinese people often don’t go through a court case, orders, or a financial agreement – nothing formalised. They’re able to work out an arrangement and it works well for them. However the arrangement would not be held up by a court in Australia. So you have that difference already between a private arrangement and going through a court litigation experience here in Australia.
On whether our legal system should start recognising these different cultural values and perspectives, and the associated expectations of Chinese-Australians.
I’m not sure whether there should be a change, but I do understand why some parties have that arrangement. I guess what is unique to the Chinese culture is valuing the family unit over your personal financial position and happiness. It is common for Chinese people to give up their individualistic thinking to promote the family unit.
For instance, a separated couple might continue having a financial relationship, even though the Australian legal system says they are not obliged to, and that they should sever thae joint financial relationship. However for the good of the family unit, Chinese culture would instead advocate for, “Do what you need for the family unit.”
It is the more traditional view and it’s actually still quite common. In my experience with many Chinese matters, the husband continues to support the mortgage financially, whilstthe wife and children remain living in the house, and the parties continue as if nothing has changed, excepted that they’re separated.
On the contrary with the Australian legal system, we have finality with property settlements. The Courts do not want a continuation of financial dependency between the parties. The Courts want separation of finances, but, to promote the family unit, sometimes Chinese families ignore that and say, “That’s not good for us. We want to promote the family unit for the sake of the children. The sake of the collective good.”
On whether these might be reasons for Chinese-Australians to not engage in the family law system in Australia, with our legislation specifically stating the objective is to sever that relationship finally.
Sometimes, the flip side of it is that modern Chinese people want to move on with their lives. They don’t want to have that financial dependency, just for the sake of the collective family unit. There’s a struggle between modern and traditional Chinese values. Again, I can see the good in both sides. I can understand both situations. It just depends on what each party wishes to achieve.
On the concept of a judge deciding who keeps what asset and with whom children live, if separating parties can’t decide the terms of their separation between themselves.
Like with most laypeople who go through a court case, the process can be very daunting and difficult to understand. For a Chinese person who is not confident in English, going through a process where you need to understand what is happening is daunting. It’s a complex system that we use in family law. They might not understand why the judge has made orders to do with their lives. So, I think that’s the difficulty that many Chinese people have.
On no-fault divorce, and what that means within Chinese culture.
With modern Chinese values, I think divorce is accepted. However with the traditional Chinese values, it’s not quite accepted especially if infidelity is involved, there is very much a shunning of that person. Divorces are not really discussed openly in the community. It’s just brushed under the carpet. But again, it does happen – especially amongst the modern, and younger generation.
On whether this means Chinese people take a longer time to sever that relationship and seek out assistance in doing so.
It could be. Sometimes I think it’s about the motivations to sever that relationship. Sometimes, one party might re-partner, motivating the first partner to do something about it and forcing finality.
I think it is very common not to formalise the separation and for both parties to just go about living their own lives. But it’s not really discussed. Not many people would be openly sharing in the community that they’re separated, or that they’re divorced. It’s just; no one talks about it. You just sort of pretend that the family unit is fine and you’re just doing the best you can for the family.
On whether, from a lawyer’s perspective, it could be difficult to earn trust in order for information to be passed across.
I think sharing sensitivity to the different Chinese values with your client would make them feel that you understand them. I think that’s very important.
On the difference between traditional and modern Chinese culture, and how generational differences might impact the support shown toward an individual by their family.
There are two responses. Either they’re ostracised from their family because there’s shame involved with divorcing and separating, or it’s the other side, where the parents are very supportive. Because again, it’s that collective unit, the family unit, that you want to prioritise.
So, the parents would often allocate resources to their child who’s facing legal issues. It doesn’t have to be family law. It could be any other issues, such as financial issues, criminal law issues, or the like. They would usually be willing to support their child because they see it as a collect family unit.
On the lack of privacy when it comes to property settlements.
I think there is a reluctance to be so upfront with documents because, on paper, it might present a different story of a person’s true financial position. For instance, going back to the oldest son (who has a special place in the family unit) his financial position might look a lot larger than what it really is – because he’s holding all these assets on behalf of his parents. Sometimes, the paperwork doesn’t reflect, the true nature of a business. The way you do business in Asia can be very different to what is presented on paper. So, I think that’s why people might be hesitant in providing financial disclosure.
On the special place the older son has within the family unit.
The eldest son is treated as if he was part of the other generation. He has a special place. The expectation is, when the parents gives the son assets and things like that, he looks after them until they pass away. It’s more of a traditional practice. If let’s say, the grandfather passes away, the children would inherit a share, and so would the oldest son of the oldest son – but the rest of the grandchildren don’t inherit. He has a unique placing. It just depends on how traditional that family is, but that’s usually the case. The money given to him is expected to be used to look after the older generation. There are obligations. It’s not necessarily a, “If you do this, I do this.” It’s sort of just expected.
On the role of the Western concept of individual ownership of property in family law.
For Chinese people, there is the concept that – if something’s been given, there are cultural expectations to do certain things with it. Although, these aren’t requirements. I think the extent of how far people take that tradition depends on where they’re from, their upbringing and their family. Some people approach it on a more modern level, where it’s not really expected, and just optional.
When it comes to pools of assets for distribution in a separation, it definitely comes back to the family unit and the collective thinking. If you hold more of the modern values, you would be more individually looking at everyone’s assets, liabilities and super. It’s very common for families to mix funds, where siblings, parents, aunties, uncles, cousins – they might pull their funds in and create a financial resource for a person. But there’s no written document about it. It’s just expected as an obligation, a sort of unwritten rule – that’s what you do in a family unit. Again, it just goes back to thinking about the collective, which is very common in Chinese culture.
On the concept in family law that each person brings to a marriage their own unique skills and contributions, all of which are treated as valuable in determining who is entitled to what portion of the asset pool.
I think there are different ways of looking at homemaking parenting contributions. The more recent trend is for grandparents to care for children while their parents work. At the same time, you have the more traditional view, where the woman is looking after the kids, and the man goes out and works and is the breadwinner. His contribution is seen as the contribution. What the woman does at home is not given much weight, in terms of contributing to the family. Again, it just depends on how modern or traditional you are. More recently, I’ve seen grandparents take on a more significant role in terms of caring for kids.
On the presumption of equal shared parental responsibility.
If the Chinese couple are more modern, they would be more willing to accept the idea of an equal parenting arrangement and having that role in the child’s life. However, if they’re more traditional, the father would not have such a large role in child-rearing. Their role is more as the breadwinner, the financial resource for the family. It’s the woman that cares and does the child-rearing for the family unit. Therefore, her income might not be as high as the husband’s,. Again, it’s just that generational gap between two values.
When it comes to being involved in big-ticket decisions, like the child’s school or healthcare, it depends on each family. Again, it goes to the whole collective good for the family unit. Both parents would be accepted in terms of having a say in the kids’ long-term welfare care. I think it’s widely accepted that both parents have a role to play because having kids and raising them is essential in the family unit.
Unless you are very traditional, where the woman takes care of anything to do with the kids. Generally speaking, education is highly valued in the Chinese community. Therefore, both parents would want to have a say in schooling and anything education-related.
Thank you to Mel for her perspective on these matters. It’s important that we open this conversation and keep the dialogue going so that we continue to learn and do what we can to improve the system, particularly for those vulnerable in our community who are going through it.