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.
Updated February 2010
The new family law system
Being a family lawyer and being child focused - A question of priorities?
Banks, C
Australian Journal of Family Law, 2007: 21(3), 37-57.
This article provides empirical data from a small qualitative study of Queensland lawyers (sample of 42) that challenges current perceptions about the role of the family lawyer in the family breakdown discourse. It demonstrates how the dichotomous perception that family lawyers are aggressive, self-interested litigators or impartial adversarial advocates may not be well founded. Data from this study suggests an alternative model. Acknowledging the lawyer as a subjective participant on a very subjective journey with a client is a more realistic portrayal of what family lawyers do from day to day. This article focuses on lawyers understandings of being child focused, how those understandings are incorporated into their family law practice and what challenges they present. The analysis suggests that lawyers who identify as child focused often face ethical challenges that they do not feel well equipped to deal with.
Changes
to federal family law and state domestic violence
legislation (PDF 89 KB).
Caruana, Catherine
Family Matters no.70 Autumn 2005: 66-67, and Online
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.
The Child Responsive Program and the role of Family Consultants in the Family Court.
Hugall, D
Paper presented at the Calabro Consulting Family Law Residential, Brisbane. 2007.
This paper addresses the role of the Family Consultants as experts on the Child Responsive Program and less adversarial trial (LAT) in the Family Court and how social science experts provide services in the Federal Magistrates Court.
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.
Child-related proceedings under Pt VII Div 12A of the Family Law Act: What the Children's Cases Pilot Program can and can't tell us.
Hunter, R
Australian Journal of Family Law, 2006: 20, 227-248.
This article discusses the findings of the evaluation of the Children's Cases Pilot Program, run in the Sydney and Parramatta Registries of the Family Court in 2004-2006. The pilot provided the template for the court's less adversarial approach under the new Div 12A. It specifically addresses the types of cases that entered the Pilot Program, the achievement of better outcomes for children, the costs of the program and the new roles played by judges, solicitors, counsel, children's representatives and mediators within a less adversarial approach to child -related proceedings. Evaluation of the Children's Cases Pilot Program, run in the Sydney and Parramatta registries of the Family Court in 2004-2006, a pre-cursor to the less adversarial trial processes instituted under Div12A FLA.
The Child Responsive Program. Evaluation report.
McIntosh, J, & Long, C M
A report for the Family Court of Australia. Melbourne. 2006.
The evaluation of the Child Responsive Program (CRP) provides baseline data on families using the CRP.
The Child Responsive Program, operating within the Less Adversarial Trial: A follow up study of parent and child outcomes.
McIntosh, J, & Long, C M
Melbourne: Family Transitions. 2007.
This report describes a follow-up study of the Child Responsive Program (CRP) piloted in the Melbourne and Dandenong registries of the FCA in 2006. An initial evaluation was conducted, with a report in September 2006 providing baseline data on families using the CRP, together with 49 parents' immediate impressions of the CRP and its impacts.
The Children's Cases Pilot Project: An exploratory study of impacts on parenting capacity and child well-being.
McIntosh, J
Family Court of Australia. 2006.
The genesis of this study lies in the Family Court's desire to explore the ways in which a less adversarial approach in children's proceedings may impact on parenting and post-separation family adjustment, for parents and children. In addition to the process information yielded by a major evaluation of Children's Cases Pilot (CCP) procedures and efficiency (the Hunter study), the current study sought to explore those variables most likely to buffer children's adjustment to conflicted divorce: the nature of the co-parenting relationship and parent's capacity to provide less acrimonious care for their children post court. The aims of the study were to explore parents' experience of the CCP and mainstream court proceedings, any impacts on subsequent parenting alliance and capacity to manage conflict and parents' perceptions of the impacts of a less adversarial process on their children's well-being.
There were significant differences found between the two samples. The CCP was associated with greater protection of parental capacity. The process created ‘no further harm' to the nature of their co-parenting relationship and to children's adjustment, post court. CCP sample reported significantly lower acrimony and lower conflict, better emotional functioning of their children and far greater satisfaction of parents and children with the post-court living arrangements.
Collaborative practice in family law (PDF 868 KB).
Family Law Council
Canberra: Department of the Attorney-General, 2007
Collaborative practice is a unique method of dispute resolution which has the potential to deliver ongoing benefits to the general public and Australian professionals working in the family law area. This report considers commonly criticised aspects of collaborative practice, in particular its suitability in high-conflict cases, the costs, potential ethical concerns and the likelihood that the process can overcome discrepancies in parties’ relative bargaining power.
Decades of panic.
Hunter, R
Griffith Review, 10. 2005.
In this essay, the author places developments in Australian family law within the larger context of historical and structural forces at work in Australian society since the Second World War, and attempts to explain why this remains such a contentious and reform-driven jurisdiction.
Do family lawyers fear family violence as much as their clients? Keeping family violence on the agenda in the new world of shared parenting.
Rathus, Z
Paper presented at the The 13th National Family Law Conference, Adelaide. April 2008.
This paper explores what the author describes as "a disjuncture between social science and legislative change" in the 2006 reforms promoting shared care. She argues that the factors listed in the s65DAA(5) checklist for "reasonable practicability" should really be considered as "best interests" factors. By placing these matters in a practicability checklist there is a risk that the impact on children and the importance of some forms of abuse in determining post separation parenting arrangements is minimised.
Poses question: " How well are we dealing with family violence since 2006 reforms?"
Evaluation of the 2006 family law reforms.
Kaspiew, Rae; Gray, Matthew; Weston, Ruth; Moloney, Lawrie; Hand, Kelly; Qu, Lixia
Melbourne, Vic. : Australian Institute of Family Studies, c2009.
In 2006, the Australian Government introduced a series of changes to the family law system and increased funding for new and expanded family relationships services, including the establishment of 65 Family Relationship Centres. The reforms aimed to bring about a cultural shift in the management of separation, away from litigation and towards co-operative parenting. A study was commissioned to evaluate the impact of the changes and the reform's effectiveness in achieving its policy aims. This report presents the findings of this evaluation, which drew upon 3 projects: the Legislation and Courts Project (LCP), which examined the implementation of the legislative reforms; the Service Provision Project (SPP), which examined changes to the service delivery system; and the Families Project (FP), which examined the experiences of separated families. These projects involved a longitudinal study of 10,000 separated parents, two quantitative studies based on general samples of parents, analysis of data from 1,724 pre- and post-reform court files, and surveys with professionals, clients, and grandparents.
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: (a) 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, and (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.
Evidence of a different nature: The child-responsive and less adversarial initiatives of the Family Court of Australia.
McIntosh J, Bryant D & Murray K
Family Court Review, 2008: 46(1), 125-136.
This article charts the constellation of vision and research that underpin a new era in the Family Court of Australia, focusing on the development and outcomes of two programs that have attempted to meaningfully reinforce the centrality of children's rights and needs in family court proceedings.
The Less Adversarial Trial and its front-end Child Responsive Program (CRP) both aim to minimise the potentially negative effects on parents of a litigation process by application of a more intensive case management model adopted with the intention of altering the parents' experience of the journey. Key features of this approach include the adoption of inquisitorial techniques, which include direct consultation with children through the CRP, modified application of the rules of evidence, and strong judicial management rather than being party driven. Findings from two studies into the pilot Children's Cases Program (now the Less Adversarial Trial) and the CRP are discussed. Significantly, evidence is outlined around the capacity of the new processes to impact on both the co-parenting and parent-child relationships and to influence short-term adjustment of complex families in high-conflict dispute. In encouraging a more active focus on children's needs and views and by facilitating a stronger voice for children in proceedings that affect them, both initiatives advance Australia's commitments under the United Nations Convention on the Rights of the Child.
Family courts violence review.
Chisholm, Richard
Canberra, A.C.T. : Attorney-General's Dept., 2009
This review was commissioned by the Attorney-General to examine the practices, procedures and laws that apply in the federal family law courts in the context of family violence, and whether improvements could be made to ensure that the best possible support is provided to families who have experienced or are at risk of violence. This report presents the author's recommendations from the review, and discusses the review's findings on issues including facilitating and acting upon the disclosure of violence, and the experience of the 2006 amendment legislation and the 2003 Hull Committee recommendations in practice. The recommendations focus on promoting an understanding of family law among judicial officers, promoting risk identification and assessment in all cases, resourcing, and the best interest of the child.
Family Law Amendment (Shared Parental Responsibility) Bill 2005. 1-50.
Neilsen, M. A., & Norberry, J. (2006).
A useful summary of the 2006 amendments
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 29 KB)
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".
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.
Finding a better way: A bold departure from the traditional common law approach to the conduct of legal proceedings.
Harrison, M
Canberra: Family Court of Australia. 2007.
Report on the development of the less adversarial trial (LAT) procedures in children"s cases in the Family Court of Australia (FCoA). Provides useful background on the evolution of hybrid, less adversarial procedures in the FCoA, and in children"s matters in particular. Also provides a good history of external scrutiny of the FCoA leading up to the 2003 'Every picture tells a story' report.
The friendly parent provisions in Australian family law - how friendly will you need to be?
de Simone, T
Australian Journal of Family Law, 2008: 22, 56-71.
This article argues that the 'friendly parent' provisions (ss60CC and 60CC(4) Family Law Act 1975) incorporated in 2006 into Australian family law could be dangerous in cases where domestic violence is a feature of the case. In addition, it is argued that it is questionable whether the protections offered in the legislation around domestic violence will overcome these concerns. The author argues that when read in conjunction with the stricter definition of violence and the threat of costs for false allegations, pressure can be brought to bear on the party making the allegations.
Future governance options for federal family courts in Australia - Striking the right balance.
Semple, D
Canberra, ACT: Commonwealth of Australia. August 2008.
This report presents the findings of the review commissioned by the Federal Attorney-General's Department into the delivery by the federal courts of family law services. The review found that the existence of two courts with largely concurrent jurisdiction in family law matters (the Family Court of Australia and the Federal Magistrates Court) has resulted in a significant level of duplication of administrative structures and corporate services which is not sustainable under the current funding arrangement. The two-court system was also found to create competition for resources and confusion amongst litigants and practitioners. The recommended changes include the merging of the two courts into a single family law court, with two divisions: one comprising existing Family Court judges to handle appeals and complex matters, and one a general division to which Federal Magistrates would be offered appointments. The report stresses the importance of retaining the existing service culture of the Federal Magistrate's Court in the merger.
How judicial officers are applying new Part VII of the Family Law Act: A guide to application and interpretation.
Rathus, Z
Australian Family Lawyer, 2008: 20(2), 5-20.
This article endeavours to provide legal practitioners with a practical guide to how the new Part VII of the Family Law Act 1975 is being applied by the Family Law Courts, and offers examples of some interpretations which have been given to some of the new provisions.
The author argues from her reading of the case law that judges are making, and parties are negotiating equal and substantial & significant time arrangements, more frequently than they used to. Results of McIntosh and Long study suggest that judicial officers and advisors are being optimistic in ordering shared care where the usual pre-requisites are not there. Australian legislation goes further than many and yet there is little known about the impact for children of years of rotating contact. Good for analysis of case law and trends in judicial interpretation. Most of cases cited relate to relocation.
Improving responses to family violence in the family law system: An advice on the intersection of family violence and family law issues.
Family Law Council.
Canberra, A.C.T. : Attorney-General's Dept., 2009
In 2008, the Family Law Council was asked by the Attorney-General to provide advice on improving the coordination between the family law and the State and Territory family violence systems, with particular emphasis on court related services. The Council examined how the family law system could better identify and address allegations of family violence and how related authorities could share information and assessments. This report presents their advice, which includes recommendations addressing community education on domestic violence and parenting rights under the law, professional training on assessment and procedures, and interagency collaboration between courts, state and territory child protection agencies, and other related bodies. The report discusses: the impacts of family violence on children and parenting; definitions of family violence; family violence and specific issues, such as health and culture; the role of the Commonwealth Government; the need for a common understanding that is evidence based; the jurisdictional framework impacting on family violence and child abuse; adducing evidence in court; communication between States, Territories and Federal authorities; and a framework for legislative reform.
Integrated Client Service Delivery featuring mental health support: Final report - A Family Law Courts' skilling and client support program.
The final report from the Integrated Client Service Delivery (ICSD) program developed by the Family Court of Australia, summarises the mental health support program now operational in the Family Court of Australia and the Federal Magistrates Court. The mental health strategy, first piloted from 2005 to 2006 and, following an evaluation, rolled out nationally in early 2007, consists of the four major streams of coordinated referrals; the development of protocols to guide staff in their dealings with clients; a national, integrated client service training program, including improved registry support; and evaluation mechanisms to ensure a culture of continuous improvement. The report, released in January 2009, draws extensively on the evaluations undertaken as part of the national initiative.
Copies of the report, which include a resource CD and a DVD containing six training scenarios, can be obtained from the court by contacting communications.office@familycourt.gov.au.
Interim proceedings after the Family Law Amendment (Shared Parental Responsibility) Act 2006.
Chisholm, R
Australian Journal of Family Law, 2006: 20, 219-226.
In this Comment, Prof Chisholm examines the implications of the 2006 reforms to Part VII of the Family Law Act 1975 for interim proceedings. In particular, he considers whether the new provisions are likely to affect the well-established practice of conducting limited hearings in interim proceedings, and the extent to which they may require a departure from principles stated in the case of C and C. He suggests that while those principles have not been entirely displaced, they need to be reformulated, having regard to the new legislative provisions specifying the new approach to be taken in determining the child's best interests, and the new requirement that in some circumstances the court must consider whether the child should spend equal time, or substantial and significant time, with each parent.
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.
Making it work: The Family Law Amendment (Shared Parental Responsibility) Act 2006.
Chisholm, R
Australian Journal of Family Law, 2007: 21(2), 143-172.
This article examines how far the legislative background casts light on the 'cooperative parenting' provisions of the Family Law amendment (Shared Parental responsibility) Act 2006. It is argued that the background documents, in particular the Hull report (2003), show that there was an entrenched pattern of 80/20 parenting after separation and that this represented inadequate parental involvement after separation.
There may be a range of factors relating to the parents themselves or law related factors that could have caused this problem of inadequate parental involvement. However the report does not include a detailed discussion of the range of possible causes and appears to draw the conclusion that the cause of the 'problem' was the law, or the way it is perceived. and that the 1995 reforms failed in rectifying this problem.
These documents also reveal the absence of a clear or persuasive account of what the legislature considered was the cause of the problem. The lack of such an account, combined with some provisions of the legislation (notably those relating to 'primary' and 'additional' considerations in determining the child's best interests), lead to uncertainty about some fundamental aspects of decision-making, as illustrated by the problem of relocation cases.
The meaning of 'meaningful': Exploring a key term in the Family Law Act amendments of 2006.
Chisholm, R
Australian Journal of Family Law, 2008: 22, 175-196.
The significance of the references in the Act to parents having a 'meaningful' involvement in their children's lives is illuminated by the context: the legislative history of the amendments of 2006, and earlier statements by courts and child development specialists. Against this background, the terms refer (put briefly) to a positive and active involvement by the parents in their children's lives. It is necessary to determine in each case whether there is a 'meaningful' parent-child relationship because the Act requires that the benefit from such a relationship must be given particular importance when the court weighs up all the matters relevant to determining what orders will be in the child's best interests. It is unhelpful to draw further distinctions, such as that between an 'optimal' and a merely 'meaningful' relationship, and wrong to suggest that the Act aspires to nothing more than a parent-child relationship that can be characterised as 'meaningful'.
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.
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 251 KB)
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.
Parenting after separation: The Family
Law Amendment (Shared Parental Responsibility)
Act 2006.
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.
The role of the family consultant in the less adversarial trial.
Fry, D
Australian Journal of Family Law, 2007: 21, 113-122.
This article contains a brief description of the background of the development of the less adversarial trial (LAT) and collective ideas on what makes the LAT unique, based on the experiences of those in the Family Court involved in the LAT since its inception.
Shifting the gaze: Will past violence be silenced by a further shift of the gaze to the future under the new family law system?
Rathus, Z
Australian Journal of Family Law, 2007: 21, 87-112.
This article argues that the new family law system, encompassing the rollout of Family Relationship Centres (FRCs) and the shared parenting provisions, will shift the gaze away from the history of the "intact" family in ways that may be dangerous for women and children who have left domestic violence.
Argues that the "strong philosophical positioning of FRCs" (as flagship government services), and the fact that decisions made at FRCs are outside the developing jurisprudence of the courts, may mean that they reflect the government rhetoric behind the legislation rather than a nuanced interpretation of the law. This could act to cause the protective and violence related provisions to be under utilised or rendered of limited relevance." (90)
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.
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.
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.