Family Law In Australia Research Articles

“Stay in Your Own Lane” the Inherent Flaws Undermining Children’s Rights Within Australia’s Family Law System: A Perspective from the Field

The social scientists and legal professionals who work in family law in Australia should be recognised for working tirelessly in a complex, overworked, and archaic system. A system that underserves their capacity to maintain integrity, expertise, and ethical diligence in the professions they are assigned. In this perspective piece, we acknowledge the innovative work being done within this system to strive to meet the best interests of the children they serve, whilst highlighting the fundamental flaws of an adversarial system that breeds acculturation across disciplines and disables the practitioners who operate within these systems from legitimately performing their duties and championing the human rights of children.

Domestic Violence, Property and Family Law in Australia

In Australia, domestic violence has increasingly been recognized as germane to ancillary proceedings, including parenting and property matters. However, the road to recognition of the relevance of violence has been slow and the search for appropriate responses challenging. Drawing upon an explicitly feminist perspective, this article outlines the why and how of that relevance by looking at the ways in which family violence may intersect with family law property matters. We explain how a property settlement, both in process and outcome, may be either a manifestation of coercive control and/or affected by the legacy of coercive control. In terms of how this has been addressed to date, we chart the limited Australian responses and suggestions for reform, which have effectively left the judiciary to fashion a response with all the attendant difficulties of non-legislative reform. In conclusion, we maintain that the time is therefore ripe for a reconsideration of legislative – and other – responses to issues of family violence and property.

Legislative Pitfalls in Mandating Shared Parenting in Family Law Disputes: An Australian Experience

Family law in Australia has been governed by the Family Law Act (FLA) since 1976. The statute was significant in changing the law from fault-based to a no-fault regime of divorce and its consequences for child custody and property disputes. Since then the FLA has endured many amendments with legislators trying to keep the law aligned with their perception of community values. One important aspect of the FLA is that it requires judges deciding parenting disputes to make certain ‘considerations’ in line with articulated principles. In 2006 the Australian government amended the FLA by introducing two ‘objects and principles’ (then s.60B), which seemed innocuous: that children have ‘the benefit of both of their parents’ and that they be ‘protected from physical or psychological harm’. Arguably both principles responded to community concerns, although from opposing sources. The ‘men’s movement’ had complained for years that the Family Court was biased because it awarded child custody more often to mothers than to fathers in parenting disputes. On the other hand, the ‘women’s movement’ argued that children would be at risk if the Family Court favoured fathers over mothers because of the high incidence of domestic violence and child abuse at the hands of men. The two principles in s.60B were a political compromise and became known as the ‘twin pillars’ in Australian family law. The legislators had attempted to appease both lobby groups by requiring judges on the one hand to keep fathers involved in children’s lives and on the other hand to ensure children would be safe from violence. In a sense it was a marriage-of-opposites that was doomed to fail, and fail it did. The reason was that in many cases, judges seemed to interpret the amended Act to emphasise ‘shared parenting’, and without good evidence that the father posed a risk to the child, judges very often made orders in line with the first pillar, keeping the father involved in the life of the child. Ironically, in some of those cases the orders effectively exposed the child to violence through the father’s subsequent abuse and assaults on the mother, eg. at child handover or at negotiations about arrangements for the child. Legislators were forced to intercede again, to amend the statute further and this time to mandate judges to privilege the second pillar (no violence) over the first pillar (both parents to be involved). It is ironic that since 1976 the ‘paramount consideration’ has been the ‘best interests of the child’ – to which almost everyone agrees - while the challenge for legislators and judges has been how to interpret and apply that principle in the context of historically changing and culturally diverse social values about the meaning of family, parenting, and ideal child development arrangements. In attempting to shift the focus in disputes about children from ‘legal custody’ to ‘shared parenting’, legislators in Australia so far at least, have failed to reflect contemporary community attitudes, or provide leadership in accepting research-based, best practice policy in resolving parenting disputes.

Indigenous Access to Family Law in Australia and Caring for Indigenous Children

Indigenous Access to Family Law in Australia and Caring for Indigenous Children

Family Law Reform in Australia, or Frozen Chooks Revisited Again?

This Article focuses both on the changes that have been made to the legal framework governing post-separation parenting of children in Australia, as well as the processes and discourses via which these matters have been dealt with and debated. Alone among comparable common law jurisdictions such as Canada, the United States, and England, Australia’s family law legislation, and the significant changes made to it in the past fifteen years, can be seen to have been particularly responsive to the lobbying of fathers’ rights groups. It will be suggested that changes to the legislative framework that governs family law in Australia have taken place, at best, without any clear rationale or need and perhaps more problematically, have at times flown in the face of, rather than been undertaken by reference to, the evidence-based research about post-separation parenting practices and what we know about children’s welfare or best interests, the paramount consideration that underpins decision-making in this field. The purpose of this discussion is to attempt to posit some possible explanations for this distinctive path of Australian family law “reform”.

A practice framework to guide screening and assessment in the Australian Family Relationship Centres and Advice Line

ABSTRACTIn recent years, there has been a growing recognition of the reactive way in which policy is translated into practice on the front lines of child and family welfare organizations, particularly in how risk is assessed and responded to by staff at all levels in these organizations. Major reforms to family law in Australia and programmes set up to complement the existing Commonwealth‐Funded Family Relationship Services Program provide an opportunity to rethink how staff can be provided with a systematic and research‐based set of guidelines for screening and assessment. This paper examines the role of practice frameworks in general and the Australian family relationships screening and assessment practice framework in particular to demonstrate not only how this broader evidence‐based approach encourages well‐informed, professional and ethical practice but also how it leaves room for creativity and local, place‐based responsiveness.

Lawyers' Emerging Experiences of Interdisciplinary Collaborative Separation and Divorce1

Collaborative Separation and Divorce has recently emerged as a method of dispute resolution where parties to family law disputes agree to finalise all matters through negotiations only, without any threat of litigation and without going to court. In an interdisciplinary collaborative approach lawyers and psychologists/counsellors work together with clients. This study investigates lawyers' perceptions of collaborative divorce. It presents the results of interviews with 20 collaborative family lawyers in Vancouver, Canada, where collaborative family law has been practised since 1998. The results have implications for the reform of family law in Australia, where collaborative separation and divorce is emerging as an alternative to court processes. The findings suggest the collaborative process is part of a spectrum of dispute resolution mechanisms including litigation, lawyer-assisted negotiation, mediation, and arbitration. Lawyers perceived key elements of the process to include agreement amongst clients and lawyers not to go to court, signing of a participation agreement including a lawyer withdrawal clause, trust between clients, trust among lawyers, trust between lawyers and clients, and four-way meetings. Collaborative negotiation is distinguished by the heightened levels of trust between lawyers, clients, and lawyer+clients, as well as broader notions of advocacy based on notions of fairness, openness, and disclosure.

Online Dispute Resolution and Family Disputes

This paper explores the potential role of online dispute resolution (ODR) in family disputes. Following recent reforms in family law in Australia, primary dispute resolution processes (PDR) such as mediation have become the default process for the majority of cases in which there are disputes over parenting or property. PDR processes can potentially be enhanced by the use of information and communication technology. But despite potential benefits for some categories of disputants, the application of ODR to family disputes has been little explored. We identify and classify nine ODR systems that have relevance to family disputes. While further research and system development is needed, we conclude that ODR remains an interesting if not yet fully developed new tool for family dispute resolution practitioners. As the increased use of information and communication technology and the Internet influence the way in which services are delivered, practitioners and providers of dispute resolution services would do well to anticipate that some clients will want ODR offered as an option for facilitating family disputes.

FAMILY HISTORIES

I am a child of the 1970s. I grew up in Adelaide in the Dunstan decade. My earliest political recollection is of my parents discussing the dismissal of Whitlam in 1975. I believed university educat...

Family as a commonsensical device and its place in law★

This paper is in five main parts. The first introduces membership categorisation analysis (MCA) as originally outlined by Harvey Sacks and, here, as a possible extension of semiotic analysis. MCA is broadly a contribution to discourse analysis in general and to conversation analysis in particular. The approach concerns membership categorisation devices such as family, the categories they can contain such as ‘mother’, ‘father’, ‘child’, etc. and the category-bound activities or predicates commonsensically attachable to such categories. The second section looks at the legal background to family law in Australia and shows that its basic assumption is, by and large and with some exceptions, to work from categories (what people are) rather than from predicates (what they in fact do). In the third section, we examine a particular Family Court case (Re Patrick) which highlights the contestation between these approaches. Following this, we examine some recent shifts in the Australian states and territories towards more predicationally-based legislation and argue for their coherence in contemporary society and its increasingly flexible conceptions of what may constitute a family. Finally, we return to the question of semiotics generally and make a case for our MCA-based distinctions as contributions to a possible semiotics of law.

Children's “Wishes” in the Australian Family Court: Are they Wishful Thinking?

The aim of this article is to reflect on the current practices in family law in Australia in relation to children's participation in the divorce process and to ask whether the legal system is fully acknowledging the extent of children's psychological involvement. From the legislative perspective, children's “wishes” as a form of participation will be examined as one of the factors in determining the “best interests of the child” in residence and contact proceedings (formerly custody and access). Indeed, the narrow legal definition of divorce by its nature limits what is seen as a child's “best interests”. Therefore, this article will follow children beyond the legal limits of granting a divorce and consider children's post-divorce adjustment. The process for obtaining a divorce is often a significant legal (and psychological) event in the life of any family and children (and parents) must continue to “participate” in the aftermath of the legal process that has brought about family change.

The silent minority: The voice of the child in family law

Family law in Australia is an important and unique jurisdiction that directly impacts upon the well-being and future family relationships of children whose families are in dispute over post separation parenting arrangements. The United Nations Convention on the Rights of the Child states that children have the right to participate in decisions that directly affect them. But there are many barriers and tensions to children's participation in the jurisdiction of family law in Australia. Decisions said to be in the child's ‘best interests’ are influenced by value judgments and beliefs that are informed by dominant western discourses on the needs and competencies of children. In practice under the Family Law Reform Act 1995 children remain marginalised without an effective voice. Failure to hear the voice of the child is of special concern for children who have been traumatised by exposure to family violence and ongoing conflict. It is important to develop new understandings about children and the importance of giving children a voice.

Child‐focused Parenting after Separation: Socio‐legal Developments and Challenges

In this article I utilise developing ideas in family law as a backdrop against which to discuss changing assumptions about parenting. In particular, I examine the gender‐neutral assumptions within family law in Australia and elsewhere in the light of seemingly contradictory evidence about the value of post‐separation fathering. That men were equally capable of providing effective parenting was by no means clear at the time that the principle of gender‐neutrality became common in family law—the 1960s and 70s. Only recently, has burgeoning research on fathering begun to more clearly affirm its value and to clarify the conditions under which pre and post separation fathering makes a positive difference. Paradoxically, it is at this very time that legally based challenges to the gender‐neutral, shared‐parenting philosophy of the 1995 Australian Family Law Reform Act have begun to emerge. The often‐perplexed interface between law, social science research and therapeutic intervention presents many challenges. I conclude the article by flagging a number of questions relevant to family therapists in this difficult field of work.

A hybrid rule --- neural approach for the automation of legal reasoning in the discretionary domain of family law in Australia

Few automated legal reasoning systems have been developed in domains of law in which a judicial decision maker has extensive discretion in the exercise of his or her powers. Discretionary domains c...

Is a Class-Neutral Family Policy Feasible? The Family Law Act 1975

SynopsisThis paper explores the question of whether the values underlying the interpretation of ’the best interest of the child’ in the Family Law Act are class based. The intent of nineteenth century divorce legislation and the conflict between social policy in its custody jurisdiction as compared to an IVF conception are used to explore class issues in social policy research. The paper concludes with the question of how well has marriage and its class-related issues been conceptualised in family law in Australia.

Book Review: Family Law in Australia

Book Review: Family Law in Australia

Social Security and Family Law in Australia

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