Family Law System Research Articles

State Fragility and Structural Gender Inequality in Family Law: An Empirical Investigation

In this paper we examine the linkage of male-dominant family law systems and levels of nation-state security and stability. We expect such societies to be predisposed to parasitical rent-seeking and inefficiency, combined with coercive conflict resolution, resulting in higher levels of violence within the society. We demonstrate empirically that states with inequitable family law also exhibit higher levels of state fragility. Using standard indicators of state stability and security, our empirical results show that the ability to predict levels of state stability and security is significantly enhanced by examining a measure of Inequity in Family Law in addition to more conventional explanatory variables such as literacy rate, level of democracy, and civilizational influence.

Redesigning the Family Law System to Promote Healthy Families

Family law professionals should be proactive in seeking and implementing constructive reforms. We identify some successful cutting‐edge reforms: (1) family resource centers, where all kinds of needs can be met; (2) informal family law trials, which streamline clogged calendars and provide an empowering and efficient forum; (3) licensed legal technicians, who increase public access to legal services; and (4) unbundled family law services. Second, we outline a protocol for implementation of reform developed by the Oregon Task Force on Family Law which is effective and replicable. Thoughtful reform of dispute resolution processes will serve family health and promote peace. Key Points for the Family Court Community: Evolving family constellations, private ordering through pre‐ and postmarital agreements, an increase in self‐represented litigants, and shrinking judicial resources are changing family law dramatically. Thoughtful, practical process reforms are needed in order to accommodate these changes. Practitioners should be proactive about seeking out and implementing such reforms. Some reforms already finding success include family relationship resource centers, informal domestic relations trials, licensed legal technicians, and unbundled legal services. We outline a protocol with a proven track record of success for implementing cutting‐edge family law reform.

FAMILY LAWS AND ACCESS TO JUSTICE

The purpose of this article is to provide a brief overview of some trends in family life and family law internationally, with a focus on North America, Europe and Australasia. These trends include changes in the law concerning parenting after separation to encourage the involvement of both parents, the growth of non-marital cohabitation, and the sharp rise in the numbers of children experiencing their parents living apart by the time they are in their mid-late teens. This overview of trends then leads to some consideration of how family law systems can cope with the pressures that various demographic and social changes are creating. Courts in many countries are overwhelmed by the number of cases that come before them. This is reflected in the available data on increases in family law litigation. To promote access to justice, there is a need to rethink the role of mediation in the family justice system, to reduce discretion, and to develop more simplified procedures.

Plenary Address, Australian Childhood Foundation Conference Childhood Trauma: Understanding the Basis of Change and Recovery Early Right Brain Regulation and the Relational Origins of Emotional Wellbeing

During the past two decades an explosion of interdisciplinary research, especially in developmental neuroscience, has transformed and deepened our understanding of how the seminal social emotional events of infancy indelibly impact, for better or worse, all later stages of human development. In this article I briefly summarise my contributions in regulation theory towards that effort. After describing a current paradigm shift in the developmental sciences, I present an overview of my ongoing studies on the interpersonal neurobiology of the mother–infant attachment relationship. I offer research which indicates that optimal attachment experiences facilitate the experience-dependent maturation of the early developing ‘emotional’ right brain and thereby a predisposition for emotional wellbeing in later stages of life. I conclude with thoughts about the application of regulation theory for early intervention and prevention programs, as well as some larger implications for family law, cultural and political systems, and human capital formation.

The Divorce Bargain: The Fathers' Rights Movement and Family Inequalities

A vast literature documents the history of the women’s and gay liberation movements in the late twentieth century, but we still know little about how heterosexual men navigated dramatic change in the legal regulation of families. This Article provides the first legal history of the fathers’ rights movement. It analyzes how middle-class white men responded to rising divorce rates by pursuing reform in both family law and welfare policy. This history offers novel insight into the relationship between the private law of divorce, which regulates largely middle-class families, and public welfare state policies, which have the greatest effect on poor families. This Article challenges the assumption that these private and public family law systems operate in parallel, showing instead that they are interdependent.Through the mid-twentieth century, marriage shaped the relationship not only between men and women but also between middle-class men and the state: men supported children and wives in exchange for legal protection of male familial authority. In the 1960s and 1970s, escalating divorce rates and the emergence of no-fault divorce laws upset this balance. By the mid-1980s, activists and federal and state legislators forged a new political compromise: fathers’ rights activists conceded ongoing child support obligations in exchange for greater access to custody upon divorce. This “divorce bargain” catalyzed a shift from common law presumptions favoring maternal custody to statutory recognition of joint custody. In so doing, it reinforced private rather than public responsibility for children living in nonmarital families.The divorce bargain promoted formal equality and sex neutrality within private family law, but also entrenched gender and class inequalities. The bargain failed to challenge women’s disproportionate responsibility for childrearing within marriage, yet enabled men to use custody rights as leverage in child support and spousal maintenance negotiations. In addition, tying paternal responsibilities to custody rights advanced middle-class men’s caregiving interests but hurt those of low-income fathers who could not afford to pay child support. The state vilified these men as “deadbeat dads” who did not merit legal protection. The history of fathers’ rights advocacy for the divorce bargain, therefore, reminds us not to confuse liberalism with equality.

Factoring in the Cost of Violence: the Relevance of Family Violence in Determining Property Settlements Under the Family Law Act

There is now a strong body of research, which shows that the impacts of family violence go beyond emotional and physical harm, and that family violence has significant economic implications for individuals, families and the community, particularly women. For example, violence is the key cause of women’s homelessness in Australia, and a leading cause of preventable death, disability and illness for women. It has also been found to have significant implications for women’s engagement in education and employment. Studies have also shown that the experience of severe spousal violence is linked to poorer outcomes for women when negotiating family law property settlements. Despite this, the Family Law Act 1975 does not explicitly deal with the relevance of family violence in family law property disputes, and the case law dealing with this issue has proven for many to be unclear and inaccessible. The purpose of this paper is to refocus attention and reinvigorate discussion on this issue, and to highlight what more can and should be done to improve legal responses to violence in the context of family law property proceedings. The paper looks firstly at the development of jurisprudence in the family law courts on this issue; then based on a review of recent first-instance judgments, looks at how this has been put into practice in recent times. Finally, I set out some options for reform to improve the family law system’s response to the relevance of family violence in determining property settlements under the Family Law Act.

Responding to concerns about a study of infant overnight care postseparation, with comments on consensus: Reply to Warshak (2014).

© 2015 American Psychological Association. Richard Warshak (2014) published a report in this journal (Vol. 20, No. 1) documenting a policy position on infants and overnight care following parental separation. He asserts that [t]here is no evidence to support postponing the introduction of regular and frequent involvement, including overnights, of both parents with their babies and toddlers (p. 60). To support this assertion, Warshak presents a series of detailed concerns about an Australian study the authors conducted, some of which involve serious misrepresentations of our aims, methodology, and findings. In this reply, we clarify the purpose, context, and limitations of our study, and refute one of Warshak's central theses: that our study's design and results favor primary maternal care of young children and discourage overnights and shared parenting for fathers. We appraise the Warshak article, and consider whether other approaches to consensus statements and to policy dialogue might better serve families involved in the family law system, particularly when emotive debates such as the overnight care of young children cannot yet be resolved by science.

Reforming Relocation Law: A Reply to Prof. Thompson

This article provides a response to Prof. Thomson's critique, noting many points of agreement and also the broader consensus that is emerging among experts in the field. The research evidence, and the wider body of knowledge on children's well‐being generally, supports the proposition that relocation is a risk factor for children after parental separation but provides no support for a general presumption either in favor of, nor against, relocation. Nor should it be assumed that the interests of children are the same as those of their primary caregiver. We defend our three questions arguing the need in an adult‐centric debate to focus resolutely on children's interests rather than on adult rights. Both Prof. Thompson's approach and our own involve guided decision making with the child's best interests as the paramount consideration—his through weak presumptions based upon research about how judges respond to relocation issues and ours through focused questions based on research on how parents and children respond to relocations issues. We do not consider that codifying the existing practices of the courts represents real reform. We identify various risks involved in using presumptions, but note that, in jurisdictions with limited publicly funded resources for individual case assessment, presumptions, burdens or guidelines may be needed to offer rough justice to impecunious parents. Key Points for the Family Court Community Notes points of emerging agreement on relocation within the research community Explores the differences between the use of presumptions and focused questions and highlights the role of empirical research of the lived experience of children and families postrelocation disputes Identifies how the level of public resourcing for the family law system may impact upon decisions about the substance of the law concerning relocation

La transformación del concepto constitucional de familia. Alcances de una problemática teórica

El presente artículo mostrará, a partir de un análisis teórico, la transformación que pretenden imponer algunas decisiones hito de la Corte Constitucional colombiana al reconocimiento de la familia en la Constitución Política de 1991, artículo 42, por la vía de la argumentación formalística empleada para tutelar en abstracto posibles controversias patrimoniales y afectivas de las parejas que practican la homosexualidad. las perspec- tivas que ofrecen las reglas de la Corte en sus argumentaciones y las consecuencias que pudieran llegar a tener frente a la sistemática del derecho de familia colombiano actualmente vigente, se tratarán en una segunda parte del trabajo reservada para una próxima entrega.

Using professional practice experience to guide family law reform

This article explores the possibility of using professional practice experience as a basis for family law reform. It draws on a recent Australian study which is seeking to use an understanding of everyday practice in the family law system to generate a coherent child focused decision-making framework for children's care arrangements that can be used by all professionals within the system. The study, the Children's Needs project, responded to practitioner complaints about the complexity of the current legislation and to evidence of the law's role in creating inconsistent messages about children's care needs across the system's different dispute resolution sites. This article discusses the project's potential as a law reform methodology in jurisdictions like Australia's, where recent policy developments have encouraged the use of alternative dispute resolution processes alongside changes to the law that reduce the discretion of the courts.

A Comparative Analysis of Laws Pertaining to Same-Sex Unions

While the global trend toward redefining marriage to include same-sex couples is evident in a number of jurisdictions, the trend thus far has reached only a relatively small number of countries. The vast majority of states still do not permit same-sex marriage. Those states that do have done so by redefining their marriage law through a legislative process, with Brazil and a few U.S. states being the sole exceptions. These legislative processes have permitted a more nuanced approach to the redefinition of marriage and the array of legal and social changes that a major shift in family law systems necessarily entails. It is not unreasonable to allow the legislative institutions to deal with the complex issues involved in a way that minimizes the risks of precipitous change. This approach allows legislative institutions to address acknowledged injustices of the past without dismantling the traditional institution of marriage with a single judicial stroke. Judicial imposition of a constitutional result in this domain could lock in patterns of polarization that could get in the way of legislative compromises that may ultimately provide better long-term solutions for society as a whole. Care needs to be taken to avoid putting at risk fragile and sometimes unseen virtues of family institutions that have served humankind well down through the ages and across civilizations. The assumption that mere animus or bigotry is the only explanation behind the legal structures of most nations of the earth is a charge aimed at blocking the quest for genuinely reasoned and good faith solutions that can be reached best in the political arena. Accordingly, with very few exceptions, national and supranational courts have held that such decisions must be left to democratic action by citizens or their legislative representatives.

The Role of Social Science in Australian Family Law: Collaborator, Usurper or Infiltrator?

This article explores the somewhat ambiguous relationship between family law decision making and social science research in contemporary Australian family law. It follows the history of social scientists and social science research in the current family law system since its commencement in 1976 and sets this against the changing socio‐legal climate of the four decades covered. It demonstrates that, while social science research has been of critical importance to the progress of family law, its use by judicial decision makers raises questions about the contested, shifting, and selective nature of the content and the absence of any legal basis by which these extrinsic materials could be received. Extensive referencing of social science research by some judicial officers in recent years has triggered appellate authority disapproving its use. It is argued that there is growing uncertainty in the relationship between the disciplines of social science and law in the family law system and that steps should be taken to begin resolving this.Keypoints Role of social science in family law Analysis of Australian family law cases that use social science research Use of extrinsic materials by judges Fathers' rights' groups Shared parenting debate Use of attachment theory in courts

I Wish the Views Were Clearer: Children's Wishes and Views in Australian Family Law

In 2006, legislative changes were made to the Australian Family Law Act 1975. These changes included a revision of the matters that must be considered when determining children's best interests following parental separation, at Section 60CC. This section lists two ‘primary considerations’, which relate to the child's having a ‘meaningful relationship’ with both parents and ensuring that children are safe in their interactions with their parents and others in their lives. The first of the ‘Additional considerations’ under Section 60CC concerns ‘any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views’. This consideration differs from that in the pre-2006 Act, which referred to a child's ‘wishes’ rather than her/his ‘views’. There is evidence, however, that those working in the family law system may not yet have made the shift towards understanding what these changes may entail.In this article I explore the differences between the concepts of ‘wishes’ and ‘views’ as they relate to children in family law matters. I argue that these concepts are qualitatively different, and that children's ‘views’ are far more encompassing than their ‘wishes’. Moving to a far broader understanding of children and their ability to understand issues that directly affect their lives may lead to the development of more comprehensive decisions about their futures.

From Helping Court to Community‐Based Services: The 30‐Year Evolution of Australia's Family Relationship Centres

As a centrepiece of Australia's 2006 family law reforms, the community‐based Family Relationship Centres (FRCs) represented a major development in the Government's commitment to incorporate family relationship services into its family law system. This paper sees FRCs as a logical development of the original conceptualising the Family Court of Australia as a “helping court”. The paper suggests that the aspiration to create a helping court was partially achieved in 1976 via the creation of an in‐house family court counselling service, which was primarily focused not on law and legal principles, but on supporting the ways in which family members were managing the task of redefining relationships. While generally valued by judges and others, this service nonetheless found itself in tension with the Family Court's continued primary commitment to legally informed and adversarially driven negotiation and decision‐making processes. Since 2006, the creation of FRCs has spearheaded a family law system that provides relationship‐focused interventions away from the courts as the default option for most parenting disputes. Consistent with this aim, there is evidence of a diminished percentage of cases now requiring judicial intervention. The 2006 legislation also provides for courts to conduct “less adversarial trials.” Paradoxically, this has occurred alongside unequivocal evidence from the Australian Institute of Family Studies’ evaluation data that judicial officers are dealing mainly with families displaying seriously dysfunctional attitudes and behaviours. The legal challenge in dealing with these cases is for courts to provide child focused, fair and non‐destructive internal processes. In addition, however, it is increasingly clear that to support and help facilitate their decisions, courts also need good working relationships with FRCs and other community based services. FRCs and the 2006 reforms offer the possibility of moving beyond the ideal of a “helping court” to the broader concept of helping family law system.

The Role of the State in Family Law

Jurisdictions around the world have been grappling with the appropriate boundaries for the State's role in family law, particularly during this time of fiscal restraint. This article draws on some of the history and research from New Zealand, Canada and the United States to outline the fundamental elements of a just family law system. The authors suggest that wherever each State draws its boundaries, it should nevertheless provide for each of those elements.Key points for family court community The state has a vital role in protecting vulnerable people The state has a vital role in providing vehicles for dispute resolution The judge has a leadership role in structuring early intervention in high conflict cases

From Policy to Implementation—How Family Relationship Centres Became a Reality

This article deals with the process undertaken by the Australian Government to develop and implement Family Relationship Centres (FRCs) as part of a major package of reforms to the Australian family law system. The article outlines consultation undertaken in developing the reforms and explains the role of the FRCs. The article details the practical steps taken to roll‐out the new FRCs. The services were to be outsourced to community‐based service providers but there were many issues for the Government to address, including: how an FRC should operate; where they should be located; how to allocate the funding; and how to manage the roll‐out of so many services. Other aspects of the implementation covered in the article include: addressing accessibility and quality control issues; training FRC staff; establishing a national telephone advice line and website; and informing the public about the new services. The article also refers to steps taken to support the introduction of compulsory dispute resolution; and research and evaluation undertaken to measure the impact of the reforms. Keypoints for the Family Court Community Family Relationship Centres (FRCs) were a new type of service and their development and implementation raised a range of issues to be dealt with by the Australian Government. Determining where and when FRCs would be rolled out, selecting community‐based service providers, addressing accessibility and quality control issues, training FRC staff and raising public awareness of the new services were all part of the implementation process. As brand new services, FRCs were able to be innovative and to develop new processes (and adapt old ones) to suit their role as an alternative to the courts and as a doorway to the wider family law system.

The Idea of Family Relationship Centres in Australia

Family Relationship Centres formed the centrepiece of major reforms to the family law system in Australia which were introduced from 2006 onwards. They were established all over the country between 2006 and 2008, providing information and advice and offering free or heavily subsidised mediation of parenting disputes. They are an early intervention strategy to help parents manage the transition from parenting together to parenting apart in the aftermath of separation, and are intended to lead to significant cultural change in the resolution of post‐separation parenting disputes. They also play a role in strengthening intact family relationships (mainly through advice and referral). This article explains the concept of Family Relationship Centres and how they operate. It also explains the background to their development and how the idea came to be accepted by the Australian Government. Key Points for the Family Court Community Describes the concept of the Australian Family Relationship Centres A community‐centric, rather than court‐centric, approach to resolving issues of parenting after separation Early indications of success include a decline of about 32% in the number of children's cases filed in Australia over a five year period.

Madness in Family Law: Mothers’ Mental Health in the Australian Family Law System

This article explores the legal and clinical processes underpinning gender differences in Australian Family Court statistics which show that mental illness is the primary reason for limiting mothers’ contact with their children. Analysis of a sample of published judgments from 2009 to 2011 featuring mental illness and outcomes of limited child contact identified that allegations of child sex abuse were a common feature of cases in which mothers’ child contact was limited. Four illustrative cases are presented with a focus on the processes used in the identification of mental illness. The data indicate that there are different patterns of response to cases where a party has a previously diagnosed mental illness and cases where mental illness is invoked as a possible explanation for child sex abuse allegations. These identified patterns of differentiated response provide a possible explanation for the gender disparity in Family Court reasons for limiting child contact on the grounds of mental illness.

Child Maintenance in the United Kingdom

Setting out the child maintenance obligations for separated families has been both a contentious and highly dynamic policy area in the UK. Since 1991 policy has been continually amended by three successive governments who have all searched for a solution to the problem of ensuring that non-resident parents make regular cash payments of child maintenance to support their children (where they can afford to do so). The UK serves as a very interesting case study in its own right as it provides a considerable amount of evidence as well as important policy lessons for other countries which might want to embark on radical change (such as the Netherlands – see Curry-Sumner this volume). Simultaneously, it is a unique policy within the UK as it is, arguably, situated awkwardly on the fringes of both the family law system and the social security system. Therein lies the tension: the boundary between public and private responsibility. Successive governments have attempted to rebalance these private and public responsibilities for supporting children in separated/lone parent families. Currently, in the latest policy formulation, the UK appears to have decoupled the private obligations of child maintenance from the public social security system (which provides means-tested social assistance benefits). This paper discusses these developments and provides new research evidence on the amounts of maintenance expected under the latest policy proposals via the use of vignette techniques.

Child Support System of Australia

Child Support System of Australia