All Australians are free to choose their beliefs and customs; we're all entitled to the same freedoms and we are bound by one set of rules … the law.
Whether you are Catholic, Anglican, Jewish, Hindu or Muslim - though Islam has its own legal system.
Few Sydneysiders realise it, but in meeting rooms around our suburbs, a form of “legal pluralism” is operating. It involves mediations where Sharia Law is used to settle disputes on matters covered by Australian law.
Which brings me to an experience with the Grand Mufti of Australia.
Dr Ibrahim Abu Mohamed and I had been talking for nearly an hour with the cameras rolling – well, I was mostly talking with his interpreter. It was February last year.
After filming the Mufti working at his desk I noticed in the adjoining conference room several men setting up some kind of meeting.
“What’s happening next door?” I asked. “Oh, that’s the Sharia Tribunal we run every Wednesday.”
Today people still flock to these sessions at the Mufti’s office.
No one is sure how many Sharia Mediations there are in Australia – they are not legally binding here, but many attendees refer to them this way. One senior NSW lawyer, Jamila Hussain, was reported in December saying, “We are not using sharia tribunals, but we rely on trained Muslim mediators who are legally qualified people we can go to and who advise what to do under Australian law and to get an Islamic divorce.”
The person running the sharia mediation at the Mufti’s Fairfield office in Western Sydney is Sheikh Abdul Salam Zoud.
In December it was reported that Zoud is a possible successor to the current Grand Mufti. He was also, until 2104, a major figure in a group called Ahlus Sunnah Wal Jama’ah (ASWJ), a group that has alleged ties with al-Qa’ida and Jemaah Islamiah, the group behind the Bali bombings in 2002 that killed 202 people, including 88 Australians.
There is no doubt Sheikh Zoud is qualified to apply Sharia law to those who come to him seeking settlements in, in his own words, "Most of it divorce, right of the children and money issues."
Sheikh Zoud is a graduate from the “Islamic University of Madinah with a B.A in Islamic Studies, with a major in Dawah and Usool ad-Deen”. (Source: http://aljannah.org/about-us/activities/profile-sheikh-abdulsalam-zoud/ )
As far as I am aware, Sheikh Zoud is not a lawyer and does not practice Family Law. Beyond that, how many Sharia settlements are being made in Australia?
To be legally binding, agreements reached in these mediations must be submitted to the Family Court for a consent order. What is not clear is how many settlements hold sway over the concerned parties without a consent order?
Some argue that Sharia Law should be incorporated into Australian Family Law to guarantee compliance with common law.
Melbourne lawyer Matt Awad is a Muslim and an experienced practitioner in Family Law. He is fed up with his clients, almost all female, who say they have been disadvantaged by Sharia settlements conducted at another centre in Victoria.
He cites the case of one client whose 52-year-old husband decided he wanted a second wife, in this case a 19-year-old from the old country.
"He wanted to marry a young girl, he's about 50, the wife objected to this… he went to the local Imam and convinced her otherwise,” Awad said.
So, it’s okay to have a second wife? “It's ok according to Sharia rule, it's alright.”
Awad explains the first wife agreed to a “shame divorce” where she signs the papers for a legal divorce under Australian Law but remains married under Islamic law. Why?
“In order for him to apply for a partner visa there must be a divorce certificate,” Awad said. “So the wife consented to getting divorced, of course it was a ‘shame divorce’, she didn't consent.
“She was told it's absolutely perfect to do that.”
The result? The man gets his new, young wife and his first wife ends up alone and, he claims, about $150,000 poorer from a settlement that would have been greater if arranged through the Family Court.
Awad can cite other examples; one woman who has not seen her children for nearly five years as her ex-husband removed the children to another country after the parents agreed to a sharia-mediated custody arrangement.
A key point in these examples is that the parties went into the Sharia mediation sessions voluntarily.
Does that make it okay?
Awad thinks it does, as long as it’s legally sound.
“There is nothing wrong with sharia tribunals. The law recognises your culture and your religion.
“There's no difference between the other communities, other communities operating (like the Jewish Beth Din) or the Indigenous court… all of this needs to happen with the overarching principles of the law,” he says.
He says Sydney lawyer Shaykh Haisam Farache is doing a fantastic job.
“He is obliged or under duty to comply with the legal profession acts and the family law regulations and his or her professional and ethical duties before the law,” Awad said.
“His outcome or his tribunal outcome will not contradict a Family Law Act or what legislation is intended.”
“But if she (the client) goes to her local Imam to arbitrate or litigate in relation to this quite complex issue, there's no guarantee,” he said.
Attorney General George Brandis issued this statement:
“Sharia Law is not part of Australian law. In Australia, secular laws, including the Family Law Act and the Marriage Act apply to everyone.
Agreements about parenting arrangements can only become binding if parties apply to the Family Court for consent orders.
The Government funds a range of services to provide advice and assistance which may be particularly helpful to vulnerable people.”
Here in New South Wales, the Family Court told us that " there is no requirement for the Family Court to regulate mediations".
Vulnerable people often include those seeking justice at times of major upheaval in their lives. Australian laws are designed and enforced with the aim of guaranteeing that they find that justice.
So do we need to change our laws? Or do we need to better enforce them?
Can we have more than one law of the land?
Bryan Seymour is an investigative reporter for Seven News. His series of reports into Sharia Law continue on Seven News at 6.00.
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