Bibliographies
The following bibliography has been compiled from the Australian Family & Society Abstracts database and other resources held in the Institute's library. Where available a link to the document on the Web is provided. Most items can be borrowed from the Institute's library via the inter library loan system. Online publications in PDF format require Adobe Acrobat Reader.
The new family law system
A new approach to the family law
system: implementation of reforms - discussion paper
Australia. Attorney-General's Department
Canberra,
ACT: Attorney-General's Department, Family Law Pathways
Advisory Group, 2004, 22p, Online
Reforms
are proposed in this discussion paper which are an
outcome of the 2003 House of Representatives Standing
Committee on Family and Community Affairs inquiry into
child custody arrangements in the event of family separation.
The reforms focus on families and their needs before,
during and after separation and provide ways of resolving
conflict without going down the adversarial path. A
new network of Family Relationship Centres is proposed
to help families to develop parenting plans and resolve
disputes as early as possible after separation. Changes
to the law will promote the objective of both parents
having a meaningful role in their children's lives.
Shared parental responsibility will be the starting
point in most cases. With some exceptions, parents
will have to try to resolve their disputes before they
can take a parenting matter to court. The discussion
paper includes a July 2004 'Framework statement on
reforms to the family law system' from the Prime Minister.
Changes
to federal family law and state domestic violence
legislation.
Caruana, Catherine
Family Matters no.70 Autumn 2005: 66-67, and Online
(PDF 89K)
It has been 30 years since the proclamation of the
Family Law Act 1975. There have been significant
changes, not so much to the Act itself, but rather
to the family law system which has evolved since
the Act commenced operation in January 1976. This
article provides a progress report on the current
batch of reforms and an outline of some recent developments
in domestic violence legislation in the states of
Tasmania, Western Australia, Victoria and New South
Wales.
Every picture tells a story: Report on the Inquiry into Child
Custody Arrangements in the Event of Family Separation
Australia. Parliament. House of Representatives. Standing Committee on
Family and Community Affairs
Canberra, ACT: House of
Representatives Standing Committee on Family and Community Affairs, 2003,
240p, Online
Terms of reference for the Committee were: given
that the best interests of the child are the paramount consideration, to
inquire into: (i) what other factors should be taken into account in
deciding the respective time each parent should spend with their children
post separation, in particular whether there should be a presumption that
children will spend equal time with each parent and, if so, in what
circumstances such a presumption could be rebutted; and (ii) in what
circumstances a court should order that children of separated parents
have contact with other persons, including their grandparents. (b)
Whether the existing child support formula works fairly for both parents
in relation to their care of, and contact with, their children. The
report parallels the terms of reference for the inquiry. Recommendations
include that Part VII of the Family Law Act 1975 be amended to create a
clear presumption, that can be rebutted, in favour of equal shared
parental responsibility, as the first tier in post separation decision
making. Also recommended is that Part VII be amended to create a clear
presumption against shared parental responsibility with respect to cases
where there is entrenched conflict, family violence, substance abuse or
established child abuse, including sexual abuse.
A
new family law system: Government response to
Every picture tells a story.
Australia. Government
Barton, ACT: Attorney General's Department,
2005, 20p, and Online (PDF 251K)
This paper contains the response to the report of
the House of Representatives Standing Committee on
Family and Community Affairs inquiry into child custody
arrangements in the event of family separation. It
outlines changes to the family law system and to
services, and responds to the Committee's recommendations
in the following areas: a rebuttable presumption;
facilitating shared parenting; a new family law process;
a child's contact with other persons; and child support.
Family law: old shadows and new directions.
Byas, A
In: 8th Australian Institute of Family Studies Conference, Melbourne,
12-14 February 2003: proceedings. Melbourne, Vic: Australian Institute of
Family Studies, 2003, 7p. Online only (PDF 29K)
This study, a
qualitative analysis of semi-structured interviews conducted with
separated parents, examines reasons why recent family law reform (Family
Law Reform Act (Cth) 1995) has been less than effective for parents
post-separation. From this, the author argues that separation is not
primarily a legal event and that important emotional and social needs of
post-separation parents are not being addressed in the present family law
system. She suggests that "much of the emphasis of primary dispute
resolution is on resolving conflict engendered by the perception of
competing interests or rights, and yet relationship conflict and the
struggle for emotional resolution lies at the heart of most
inter-parental conflict." and concludes that "it may be of considerable
benefit to promote a range of services or programs that look beyond
conflict as dispute and engage with a more complex emotional matrix that
may be impeding co-operative post-separation parenting".
Kangaroo court: family law in Australia.
Hirst, John
Quarterly Essay no.17 2005: 1-85
The Family
Court was a progressive reform of the 1970s. According to the author, now
it is perhaps the most hated institution in Australia. In this article
the author investigates what went wrong. By describing several cases, he
gives the reader the opportunity to view the workings of the Family
Court. He describes a court whose orders are habitually defied and where
malicious allegations regularly go unpunished. He notes the Court's
enormous power over individual lives, as well as its self proclaimed
status as a 'caring court', and wonders at its ability to overlook the
defiance of its own authority. In closing, he considers how to reform an
institution that has bred antagonism and extremism and too often
entrenched paranoia and despair.
Kangaroo court: correspondence.
Quarterly
Essay no.18 2005: 75-110
In the previous edition of Quarterly
Essay (no.17, 2005: 1-85), John Hirst's essay on the family court titled
'Kangaroo court: family law in Australia' investigated what he viewed was
wrong with the Court. The Family Court was supposed to be a progressive
reform of the 1970s but according to Hirst, it became one of the most
hated institutions in Australia. This section of the publication
provides the viewpoint of the following people about Hirst's essay, most
of whom take issue with and are critical of, but some of whom confirm,
what he has to say: Elizabeth Evatt and Richard Chisholm, p75-82; Peter
Ryan, p83-84; Alastair Nicholson, p85-p91; Bettina Arndt, p92-95; Joanna
Fletcher and Allyson Foster, p96; Justin Dowd, p97-100; Liz Olle et al,
p101-103; Barry Maley, p104-108; and Diana Bryant, p109-112.
Kangaroo court: response to correspondence.
Hirst, John
Quarterly Essay no.18 2005: 111-119
In this
response to correspondence received by the author concerning his initial
article on the family court, titled 'Kangaroo court: family law in
Australia' (Quarterly Essay no.17 2005: 1-85), he aims to either refute
or confirm each of the arguments of the correspondents.
Parenting after separation: the Family
Law Amendment (Shared Parental Responsibility)
Act 2006. new
Altobelli, Tom
Law Society Journal v.44 no.6 Jul 2006: 47-49
The Family Law
Amendment (Shared Parental Responsibility) Act may have brought about the
most significant changes to the family law system since 1976. This
article discusses the background to the changes and looks at what
separating parents should do before obtaining legal advice and when
obtaining legal advice. It outlines how the changes affect family law
matters through five stages: i) contemplating separation; ii) pre-action
iii) resolution stage; iv) the determination stage v) after the decision
- supervision and enforcement.
Pathways for
children: a review of children's representation in family
law.
Family Law Council (Australia). Child
Representatives Committee
Canberra, ACT: Attorney-General's
Department, 2004, 97p, and Online
This report on the
representation of children in family law was prompted by a recommendation
of the Family Law Pathways Advisory Group's 2001 report 'Out of the maze:
Pathways to the future for families experiencing separation'. The Family
Law Council has considered the role, and the basis of appointment, of
child representatives, particularly in the light of their 1996 report,
'Involving and Representing Children in Family Law'. Council has
considered the views expressed in a number of important reports, reviews
and papers and also has undertaken a small survey of judicial officers
and court counsellors to gauge the need for reform. The conclusion
reached is that, while some reforms should be made, particularly in
relation to the support provided to child representatives, there is no
need for radical reform in this area.
Post-separation parenting: public debates, reports, and
policies.
Chisholm, Richard
In: Families Matter:
9th Australian Institute of Family Studies Conference, Melbourne,
February 2005 - proceedings. Melbourne, Vic: Australian Institute of
Family Studies, 2005, 25p, Online only
This paper presents an
account of the current public debate in Australia about the family law
system and post-separation parenting. The author reviews the legal and
policy background, the report of the recent Parliamentary Committee, and
the Government's announced policies in response to that report. The
primary purpose of the paper is to set the scene for a stimulating
discussion of where the proposed reform framework is likely to lead.
Report on the exposure draft of the Family
Law Amendment (Shared Parental Responsibility) Bill
2005.
Australia.
Parliament. House of Representatives. Standing Committee
on Legal and Constitutional Affairs
Canberra,
ACT: Standing Committee on Legal and Constitutional
Affairs, Australian Parliament, 2005, 241p plus appendix,
and Online
In this report the Committee
considers the provisions of the exposure draft of the
Family Law Amendment (Shared Parental Responsibility)
Bill 2005 and their implementation of the measures
in the Government response to the 2003 report of the
House of Representatives Standing Committee on Family
and Community Affairs, 'Every picture tells a story'.
Specifically, the Committee considers whether the provisions:
a) encourage and assist parents to reach agreement
on parenting arrangements after separation outside
of the court system where appropriate; b) promote the
benefit to the child of both parents having a meaningful
role in their lives; c) recognise the need to protect
children from family violence and abuse; and d) ensure
that the court process is easier to navigate and less
traumatic for the parties and children.
Sixteen years of family law: a retrospective.
Nicholson, Alastair
Australian Journal of Family Law v.18 no.2 Jul
2004: 131-146
In this article, the retiring Chief Justice of
the Family Court of Australia, the Hon Alastair Nicholson, reflects on
the changes which have occurred in family law during his long career, and
in particular, the changes over the 16 years that he has led the Family
Court. During this time there have been many Parliamentary Inquiries and
other reports on family law and the work of the Family Court, as well as
a large number of changes to the family law system. Although the current
environment is one of increasing workloads, decreasing resources and an
increase in the complexity of litigated matters, the retiring Chief
Justice sees many positives in the work of the Family Court. A number of
important initiatives have been taken to improve the court's operation,
client services, and management of cases. The court is piloting
alternatives to the adversarial system in children's cases. The family
law system in Australia remains better than in most other western
countries.
State and federal reform agendas.
Caruana,
Catherine
Family Matters no.73 2006: 60-61
The
Australian Government's reform of the federal family law system takes a
more concrete form with the passage of amendments to the Family Law Act
(1975) and the announcement of mooted changes to the child support
scheme. With a similarly busy reform agenda, the states and territories
move towards a more encompassing definition of family. This family law
update provides information on modernising the Child Support Scheme, the
assent to the Commonwealth Powers (De Facto Relationships) Bill 2004
(Vic) which brings Australia one step closer to having a uniform family
law jurisdiction for married and de facto couples who separate, and
broadening the definition of de facto by South Australia to include same
sex couples in a range of state provisions impacting on families and
couples.
The changing meaning of 'de facto' relationships.
Millbank, Jenni
Current Family Law v.12 no.2 Apr 2006: 82-93
The meaning of 'de facto relationship' has changed dramatically
in Australian law in recent years. The most obvious changes are the raft
of legislative reforms including same sex couples as de facto couples in
a wide array of state laws through 1999 - 2004. Additionally, an
examination of recent case law reveals notable changes to the definition
of 'de facto relationship' through judicial interpretation, with a
distinct trend towards a broader, more flexible interpretation of the de
facto category, a less formalistic approach to the indicia of
cohabitation, and a lesser focus on the traditional hallmarks that are
thought to be 'marriage like', such as public reputation, mingled
finances and putative monogamy. These cases are important signposts, as
the Family Court will soon be grappling with questions around de facto
relationships, including how to determine the existence and duration of a
relationship.
The Family Law Council's report: Pathways
for children: a review of children's representation
in family law.
Paul,
Christopher
Australian Journal of Family Law
v.18 no.3 Dec 2004: 215-218
The Family
Law Council was requested to review the role and the
basis of appointment of child representatives in family
law proceedings. Council's response is contained in
the report, 'Pathways for children: a review of children's
representation in family law'. The report contains
10 recommendations. After providing some background
information on child representatives, this article
summarises some of Council's analysis and recommendations.
The family law handbook.
Livermore, Maree
Sydney, NSW: University of New South Wales Press, 2007, 451p
This handbook is a practical guide to the family law system, for
people facing divorce or separation. Topics include obtaining legal
advice, legal fees, dispute resolution, court action, marriage and
divorce law, negotiation and settlement, documents, evidence, child
custody, the principles of shared parenting and the best interests of the
child, property law, maintenance, hearings, and trials.
The United States experience.
Kelly, Joan
In: Smyth, B., Richardson, N. and Soriano, G. eds. Proceedings of the
International Forum on Family Relationships in Transition: legislative,
practical and policy responses: 1-2 December 2005. Melbourne, Vic:
Australian Institute of Family Studies, 2006, p72-84, and Online
Trends in family law policy and programs in the United States are
explored. These include encouragement of out of court mediation for
separating parents and the use of 'do it yourself' divorce processes.
The paper also discusses concerns about the high numbers of unrepresented
litigants, the failure of many family law services and policies,
education programs for separating parents, custody mediation, high
conflict families who re litigate, case management for disputing parents,
and parenting coordination for high conflict parents.
Thirty years of change.
Fogarty,
John
Australian Family Lawyer v.18 no.4 Autumn 2006: 4-15
Successes and failures during the last 30 years of
family law reform in Australia are explored in this
article. The article begins with a brief history of
family law matters prior to the 1975 Family Law Act,
and then discusses the Family Court of Australia, the
informality of the court, closed courts, informal hearings,
court attire, rules of evidence, specialisation, divorce,
cases relating to children, cross vesting, financial
claims, child support, family violence, and rules and
evidence.