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.
Conflict resolution and mediation
Australian families in post-separation disputes: comparative
outcomes of child focused and child inclusive family law mediation:
Summary (PDF 26 KB).
McIntosh, Jennifer
In: Family Services
Australia Conference proceedings 2005. Deakin West, ACT: Family Services
Australia, 2005, 4p, OnlinE
The Children in Focus
Research Program includes research into child focused and child inclusive
mediation. Participants were recruited from separated couples presenting
with parenting related matters to Relationships Australia mediation
services in Adelaide, Melbourne and Canberra. This paper explains the
study methodology and discusses the findings to date.
Cautionary notes on the shared care of children in conflicted parental separation.
McIntosh, J
Journal of Family Studies, 2008: 14(1), 37-52.
The FLA(SPR)Act 2006 has brought into sharp focus the issue of shared physical care of children, post separation. In this paper, the authors explore new data suggesting accumulative risks for children whose care is divided between parents who lack the core relational infrastructure to support a healthy environment for shared care. Developmental background is provided, giving context to the complex dynamics at play, particularly for young children who experience divided care in a hostile climate. A discussion of the amendments shows that, rather than endorsing an assumption of shared care, the legislation supports and indeed requires professionals to engage in active consideration of the child's best interests in each case. The paper outlines a tighter 'safety net' of considerations through which the 'best interests' question might be filtered. Implications for supporting separated parents to develop and maintain adequate foundations for shared care are discussed.
Child-focused and child-inclusive mediation: A comparative
study of outcomes.
McIntosh, Jennifer; Long, Caroline;
Moloney, Lawrie
Journal of Family Studies v.10 no.1 Apr 2004:
87-95, figure
Children have largely been absent from or on
the periphery of mediation processes in postseparation parenting
disputes. An accompanying paper (Moloney and McIntosh, pp71-86) canvasses
a number of reasons why this may be the case. Moloney and McIntosh draw a
distinction between child-focused and child-inclusive practice, provide a
definition of both, and argue that the time is now right for
child-focused mediation to become the minimum yardstick by which practice
is measured. Child-inclusive practice, on the other hand, more formally
fulfils the aspirations of the United Nations Convention on the Rights of
the Child (and statements from similar bodies) that children should be
consulted when decisions about their welfare are being made. Further,
child-inclusive practice (as defined in Moloney and McIntosh) allows for
consultation without placing the burden of decision making on the child.
The present paper goes on to describe a current prospective study of
outcomes for families utilising these two different forms of mediation:
child focused and child inclusive. Over 12 months, the study follows the
pathways of individual adjustment and parental alliance for families
across the two forms of intervention, addressing whether and in what
cases a child-inclusive mediation process enhances postseparation family
outcomes. (Journal abstract)
Child-focused and child-inclusive divorce mediation: Comparative outcomes from a prospective study of post-separation adjustment.
McIntosh J , Wells Y, Smyth B, & Long C
Family Court Review, 2008: 46(1), 105-124.
This study compared outcomes over 1 year for two groups of separated parents, who attended two different forms of brief therapeutic mediation for entrenched parenting disputes. The two interventions each targeted psychological resolution of parental conflict, enhanced parental reflective function, and associated reduction of distress for their children. The child-focused(CF) intervention actively supported parents to consider the needs of their children, but without any direct involvement of the children, while the child-inclusive(CI) intervention incorporated separate consultation by a specialist with the (school-age) children in each family, and consideration of their concerns with parents in the mediation forum.
Repeated measures at baseline, 3 months, and 1 year post-intervention explored changes over time and across treatments in conflict management, subjective distress, and relationship quality for all family members. Enduring reduction in levels of conflict and improved management of disputes, as reported by parents and children, occurred for both treatment groups in the year after mediation. The CI intervention had several impacts not evident in the other treatment group, related to relationship improvements and psychological well-being. These effects were strongest for fathers and children.
Child-focused programs for family dispute professionals: Recent steps in the evolution of family dispute resolution strategies in Australia.
Webb, N, & Moloney, L
Journal of Family Studies, 2003: 9(1), 23-26.
In 2001, the Australian Government funded professional development programs for both legal and non-legal professionals providing family dispute resolution to assist parents to resolve their disputes in a way that focuses on the best interests of their children. Within the framework of the Government’s overall strategy, this paper traces background and challenges, and describes two recent professional development programs.
Children and the shadow of the law: A resource for primary
dispute resolution professionals.
Fisher, T; Pullen, J
R
Journal of Family Studies v.9 no.1 Apr 2003: 81-105, table
A guide for Primary Dispute Resolution (PDR)
professionals with little or no legal training. It summarises information
relating to the legal context in which PDR in children's matters is
practiced in Australia and, to a lesser extent, overseas. It presents a
narrative perspective on the concept of the Best Interest of the Child
(BIC), paying particular attention to the relevant legislative framework
in Australia. It includes citations from international and federal
law, as well as summaries of pertinent discussions and references to
major sources for more detailed information. In addition, it summarises
some useful work by researchers and practitioners relating to major
sociolegal issues in enhancing the voice of the child and understanding
the culture within which lawyers practice.This resource is more
indicative than exhaustive, given the breadth of concerns PDR
practitioners are likely to have.
Children
beyond dispute: A prospective study of outcomes
from child focused and child inclusive post-separation
family dispute resolution.
McIntosh, Jennifer E; Long, Caroline M
Barton, ACT: Attorney-General's Department, 2006, 6p,
Online
The Children in Focus study explored the outcomes over
one year for two groups of families using two different types of
mediation: child focused mediation and child inclusive mediation. The
child focused intervention prioritised the psychological and relational
elements of parents' separation and the establishment of parental
arrangements that would best support the children's developmental needs.
The child inclusive intervention took the same approach but included
direct assessment of the children's experiences of the separation and
their relationships with each parent; the children's materials were then
incorporated into the parents' negotiations. This summary report
contains a study synopsis and findings under the following aspects:
outcomes common to both groups, outcomes unique to the child inclusive
intervention, durability of agreements and litigation patterns,
considering the difference in outcomes, children's mental health
outcomes, characteristics of poor progress.
Children exposed to domestic violence: Undifferentiated needs
in Australian family law.
Hart, Amanda Shea
Australian Journal of Family Law v.18 no.2 Jul 2004: 170-192, table
Contested contact cases comprise a significant proportion of
parenting disputes that come before the Family Court of Australia. Recent
research conducted on the Adelaide registry highlighted a
significant, but undifferentiated sub category of contact disputes cases
where domestic violence was an issue. Since the introduction of the Reform
Act legislation the increase in these cases, that reach the stage of a
full defended hearing, defines them as core business in the Family Court.
Contemporary research in the Western world consistently shows that
children exposed to domestic violence need protection and are at risk of
developing a range of serious short and long term problems. It is
critical in making decisions in the child's best interests that exposure
to domestic violence be recognised and addressed as a child protection
issue to more fully understand and
prioritise the complex special needs of these children. The author suggests there is an
urgent need to manage these cases as a differentiated population within
the Family Court.
Children in family law: Moving beyond the 'best interests'
rhetoric.
Moloney, Lawrie
Journal of Family Studies
v.10 no.2 Oct 2004: 160-169
In parenting disputes that occur
after separation or divorce, children's interests are often tangled up
inside the knots that are the result of parenting and property disputes.
Dispute practitioners need to know how to soften the edges of the
arguments so that the knots can begin to be loosened, and the child
can re-emerge as an individual in the eyes of his or her parents.
A child needs to be seen before his or her best interests can be
considered. In this article the author reflects on the concept of the
best interests of the child in family law decision making.
Children's voices: Reflections on the telling and the
listening.
Moloney, Lawrie
Journal of Family Studies
v.11 no.2 Oct 2005: 216-226
This article considers two
transcripts, illustrating that children are often wiser than we imagine.
The transcripts also reveal that tapping into this wisdom involves
considerable openness and skill on the part of the adult listener and
brings with it a considerable degree of adult responsibility. This, in
turn, has implications for child-inclusive practice in postseparation
mediation.
Child-focused and child-inclusive mediation: A comparative
study of outcomes.
McIntosh, Jennifer; Long, Caroline;
Moloney, Lawrie
Journal of Family Studies v.10 no.1 Apr 2004:
87-95
Children have largely been absent from or on
the periphery of mediation processes in postseparation parenting
disputes. An accompanying paper (Moloney and McIntosh, pp71-86) canvasses
a number of reasons why this may be the case. Moloney and McIntosh draw a
distinction between child-focused and child-inclusive practice, provide a
definition of both, and argue that the time is now right for
child-focused mediation to become the minimum yardstick by which practice
is measured. Child-inclusive practice, on the other hand, more formally
fulfils the aspirations of the United Nations Convention on the Rights of
the Child (and statements from similar bodies) that children should be
consulted when decisions about their welfare are being made. Further,
child-inclusive practice (as defined in Moloney and McIntosh) allows for
consultation without placing the burden of decision making on the child.
The present paper goes on to describe a current prospective study of
outcomes for families utilising these two different forms of mediation:
child focused and child inclusive. Over 12 months, the study follows the
pathways of individual adjustment and parental alliance for families
across the two forms of intervention, addressing whether and in what
cases a child-inclusive mediation process enhances postseparation family
outcomes.
Child-focused development programs for family dispute
professionals: Recent steps in the evolution of family dispute resolution
strategies in Australia.
Webb, N; Moloney, L
Journal
of Family Studies v.9 no.1 Apr 2003: 23-36
In 2001, the
Australian Government funded professional development programs for both
legal and nonlegal professionals who provided dispute resolution
assistance to separating or separated families. These programs included
'Changing the Face of Practice' (for family law practitioners) and 'Children
in Focus' (for mediators, conciliators, and counsellors). The aim was
to develop the ability of these professionals to assist more separated
parents than was the case to date, to resolve their differences in a
way that focused on the best interests of the children. The assumed
starting point was the encouragement of arrangements that allowed for
parenting responsibilities after separation to continue to be shared. The
precise manner in which these responsibilities are shared will vary
significantly from case to case. However, the principle underlying the
assumed starting point was that the arrangements were of benefit to the
children and not simply tokenism. Within the framework of the
Government's overall strategy, this paper traces background and
challenges, and describes the two recent professional development
programs.
Child focused family law: Competing visions and constraints.
Banks, C
Paper presented at the Law and Society Conference, Berlin. 2007.
Argues that the terminology of a child focused family law is relatively new and that there is little guidance for family lawyers about what this entails. Found that while both lawyers and mediators/counsellors demonstrate a strong commitment to child focused practice, they define it within their disciplinary framework and therefore don't have a shared and clear understanding of what the term means.
Both lawyers and FDR practitioners felt constrained in their ability to be child focused. Lawyers find it more challenging than FDR practitioners. Most lawyers saw the two concepts of child focus and best interests as synergistic. This different to the understanding used by FDR practitioners.
Child-responsive practices in Australian family law: Past
problems and future directions.
Moloney, Lawrie; McIntosh,
Jennifer
Journal of Family Studies v.10 no.1 Apr 2004: 71-86
This paper considers key systemic issues that have to date
constrained the hearing of children's voices in both litigation and
mediation processes in Australian family law. It is proposed that the
time is now right for child-focused and child-inclusive approaches,
described in this and previous publications, to become the default
position in mediated disputes over children following separation. The
application of child-inclusive practice to non-adversarial forms of
litigation is also considered.
Collaborative law: Family lawyering in the 21st
century.
Ford, Juliette
Australian Family Lawyer
v.18 no.4 Autumn 2006: 20-25
The practice of collaborative
law, a dispute resolution process where all parties agree not to go to
court and where, if the process fails, the clients must restart
litigation with new lawyers, is discussed. The article looks at the
origins of collaborative law, the current system of litigation, how
collaborative law differs from mediation, what cases are suitable for
collaboration, how collaborative law fits in with government initiatives
in relation to the family law system, and the National Centre of
Collaborative Law. The article includes a case study.
Current findings on Australian children in postseparation
disputes: Outer conflict, inner discord.
McIntosh,
Jennifer; Long, Caroline
Journal of Family Studies v.11 no.1 Apr
2005: 99-109, figures
This paper sets out descriptive
baseline data on the first 111 Australian families participating in a
current study of the efficacy of child-focused and child-inclusive Family
Law Mediation.The families come from the first of two treatment groups in
that comparative study. While outcome data are not yet available on this
group, the baseline data, gathered prior to intervention, are of interest
and value. The paper describes the nature of parents' conflict with each
other, the strength of their parental alliance, and the psychological
functioning of their children at the time of presentation to the
mediation service. High mental health risk for the children in these
families is evident, both from parents' and children's perspectives.
Uniquely, the paper includes the perceptions of 73 children about their
parents' conflict and its impact on them. Implications are discussed,
underscoring the imperative of early intervention with separating
families that includes screening of the children's experience of conflict
and their own needs for recovery.
Domestic violence and child contact arrangements.
Kaye, M; Stubbs, J; Tolmie, J
Australian Journal of Family Law
v.17 no.2 Jul 2003: 93-133
This article outlines the results
of an Australian study examining the experiences of 40 women who have had
to negotiate and facilitate contact arrangements with an ex-partner who
has abused them. Those results are supplemented by findings from
interviews with 22 individuals and representatives of bodies
professionally involved in the process of facilitating the development or
implementation of child contact arrangements. It was found that for most
of the women the end of the relationship had not meant an end to violence
towards them. Much of that violence was linked in some way to the
negotiation or exercise of child contact. It was also found that the
protection of women and children was frequently overlooked in the process
of negotiating and implementing child contact arrangements.
Domestic Violence & Incest Resource Centre
Behind Closed Doors: Family Dispute Resolution and Family Violence. DVIRC Discussion Paper 6, 2007.
The new family law system requires separating parents participate in family dispute resolution before their parenting dispute proceeds to court. Concerns have been raised in various quarters as to how the new requirements will impact on victims of family violence who participate in the process. This report sets out these concerns and discusses a range of the issues and dilemmas for practitioners and service providers.
Family
and child dispute resolution: New directions
in the Family Court (PDF 145 KB).
Gibson, Dianne
In: Pursuing
excellence in family services: Family Services
Australia National Conference, Sydney, October
2004: proceedings. Deakin, ACT: Family Services
Australia, 2004, 8p, Online
Legal
practitioners in the field of family law have a
responsibility to provide people with services
that are relevant and responsive to the needs of
all family members at different stages in family
disputes. This paper outlines several factors being
considered in the Family Court of Australia's review
of its primary dispute resolution services in relation
to disputes involving children. It outlines the
Court's proposed changes to its existing child
dispute resolution procedures and its proposed
new model for family and child dispute resolution.
Family Court mediation and indigenous families.
Ralph, Stephen
Indigenous Law Bulletin v.6 no.5 Aug - Sept 2004:
10-12
The Family Court offers many services that aim to
respond sensitively and appropriately to the needs of Indigenous
families. This article describes these services, considers the
characteristics and nature of Indigenous family law disputes, and
presents a case study that illustrates the model of court mediators and
Indigenous family consultants working together.
Family dispute resolution: Opportunities,
risks and challenges in the new system.
Bickerdike, Andrew
DVIRC Quarterly no.2 Winter 2006: 11-15
The new emphasis on
providing dispute resolution services for separating couples is examined.
The article discusses the opportunities of the new system for separating
parents, the risks for clients affected by family violence and some of
the dilemmas for mediation service providers. It summarises some results
of research that examined the use of mediation services. It discusses
screening, practices that assist disclosure, assessing the abuser,
assessing the victim's capacity to participate, mediation strategies,
neutrality, boundaries and limitations of the mediator's role, the need
for clear information and the need for containment.
Family Law Council: Family law and child protection (PDF 42 KB).
Parkinson, P
In: Conference papers: Child Sexual Abuse: Justice
Response or Alternative Resolution Conference, Adelaide, May 2003.
Canberra: Australian Institute of Criminology, 2003, 7p. Online only
In this keynote address the author discusses the Family
Law Council's report, 'Family law and child protection' (October 2002),
which explores the interface between state systems involved in child
protection and the work of the family courts. The report recommends the
establishment of a specialist child protection service, based on the work
of Project Magellan, to prepare reports for the court where child abuse
allegations arise in family law proceedings. This paper explains the
reasons for the report's recommendations, and sets out the One Court
principle which would decide at the earliest possible point whether a
matter should proceed under state or territory child welfare law or under
the Family Law Act, and recommends that admissions of child abuse should
be excepted from the normal rule that nothing said in confidential
counselling or mediation sessions may be admitted into evidence in court
proceedings.
Family lawyers' attitudes to ADR.
Altobelli,
Tom
ADR Bulletin v.7 no.9 May 2005: 173-176, figure, tables
New South Wales Accredited Specialists in Family Law were
recently surveyed about their use of alternative dispute resolution (ADR)
processes outside the Family Court and their perceptions of the barriers
to the greater use of ADR. This article looks at the use of pre filing
counselling, post filing counselling, mediation and arbitration; the
knowledge of ADR processes; and the potential of ADR processes to benefit
clients.
Family mediators and lawyers communicating about children:
PDR-land and lawyer-land.
Fisher, Tom
Journal of
Family Studies v.9 no.2 Oct 2003: 201-217
This article presents the
text of a simulated dialogue between a person practising as a
child-focused mediator/conciliator, who is attempting to resolve a
parenting dispute, and a family lawyer, who is acting on behalf of one of
the disputants, Carina, concerning a client with whom they are both
working. The dialogue, part of the 'Children in Focus' national training
program, was designed to highlight examples of differing perceptions held
by the two professionals and to suggest ways in which primary dispute
resolution (PDR) practitioners may take the lead in building bridges
between a predominantly legal subculture focused on individual rights
(which the author terms 'Lawyerland') and a predominantly conciliatory
culture focused on systemic child-focused solutions (termed 'PDR-land').
At strategic points, the dialogue was interrupted and participant
feedback was solicited. Invariably, there ensued a lively conversation
among participants, often reflecting differences between those with legal
and counselling / mediation backgrounds. It is suggested that this
article be read in conjunction with the article by Fisher and Pullen in
the April 2003 issue of this journal, which provides an introduction to
the legal context in which family separation takes place in Australia.
Federal family law reform in 2005: The problems and pitfalls
for women and children of an increased emphasis on post-separation
informal dispute resolution.
Field, Rachael
Law and
Justice Journal v.5 no.1 2005: 28-51
Australia's proposed
family law reform appears to focus more on the interests of fathers than
children, and has the potential to endanger, or deny justice to, many
separated women and children. This article takes a feminist perspective,
discussing the decision to increase the use of informal dispute
resolution processes in family matters and the disadvantages and dangers
women face in this process, the dangers of rhetoric not reflecting
reality with regard to victims of violence in informal dispute
resolution, and removing post separation agreements from the context of
established legal protections. It explores recommendations for involving
lawyers to assist women in informal dispute resolution, considering a
lawyer's potential in preparing women to participate effectively in
informal processes, a lawyer's support and advocacy role to facilitate
women's effective participation in informal processes, and addressing
concerns about involving lawyers in informal dispute resolution
processes.
From adversaries to collaborators: Innovative family law
practice.
Mosten, Forrest S
In: Beyond the horizon:
conference handbook: 11th National Family Law Conference, Gold Coast,
September 2004. Melbourne, Vic: Television Education Network, 2004,
p557-598
In recent years, the trend for family law
practitioners has been unbundling of services, whether through sharing
certain lawyer tasks with their clients or handling only specific issues
or representing clients only for certain stages of litigation. This paper
outlines values and strategies of unbundling and new roles for lawyers.
It discusses operating models of unbundling, organised efforts to promote
unbundling in the US, alternatives to litigation, mediation and other
dispute resolution processes, legal health and legal check ups for
clients, preventing future conflict, and practice tips.
The Gordoncare Parent Orders Program. An evaluation.
Brown, Thea; Smale, Sarina
Melbourne, Vic: Monash University
Creating and sustaining workable post-separation and divorce parenting and contact arrangements can be difficult in cases where there are high levels of hostility and conflict between the parents. The Parent Orders Program was set up by the Commonwealth Government in a small number of sites throughout Australia to help and support parents to find ways of resolving conflict and managing their parenting responsibilities as cooperatively as possible. Gordoncare (located in Victoria) was among the first agencies to run this program. This report covers the evaluation of the program objectives, explores the impact of the unique features of the Gordoncare program, and examines the profile of program clients. The evaluation includes contributions from parents involved in the program as well as staff members, and also touches on the implications for the agency of undertaking this work.
Implications for Family Dispute Resolution Practice: Response from Relationships Australia (Victoria) to the 'Allegations of Family Violence and Child Abuse in Family Law Children's Proceedings' Report.
Bickerdike, A
Family Matters 77, 2007.
This article discusses allegations of family violence in cases presenting to family dispute resolution (FDR) services, and the procedural challenges these present. Just like the high prevalence of allegations in court cases - as examined by the research report 'Allegations of family violence and child abuse in child-related disputes in family law proceedings' - FDR services face increasing numbers of violence-affected clients, many of whom will enter the court system. The article discusses service provision; quality assurance; assessing allegations; the use of FDR prior to court; adversarial courts versus the FDR process - 'allegation' versus 'disclosure'; client outcomes; and practitioner neutrality versus advocacy.
Making a 'genuine effort' in family dispute resolution: What does it mean?
Astor, H
Australian Journal of Family Law, 2008: 22, 102-121.
The Family Law Act now strongly encourages and, in some cases, mandates people who have a dispute about parenting to go to family dispute resolution. Before they can litigate they must make a 'genuine effort' to resolve the issues in family dispute resolution. Genuine effort is not defined in the Act. There are so many difficulties in defining it and implementing it that there must be some doubt about whether the genuine effort provisions of the Act will be implemented or avoided by family dispute resolution practitioners. This article suggests a definition of 'genuine effort' based on behaviour. It also suggests that family dispute resolution practitioners should develop a practice framework for 'genuine effort' to assist in its open, consistent and effective implementation. Some of the issues that arise in developing such a framework are suggested and considered.
Making appropriate parenting arrangements in family violence cases: Applying the literature to identify promising practices.
Jaffe P, Crooks C, & Bala N
Department of Justice, Canada. 2005.
Written to assist policy makers and practitioners in dealing with the difficult issues that arise in making appropriate post-separation parenting arrangements in cases where there are family violence issues. There has been a move in Canada and elsewhere to cease the traditional legal concepts of “custody” and “access” which tends to promote a “winner” and a “loser” mentality, and to start using concepts such as “co-parenting” and “parenting time” and such tools as “parenting plans” to facilitate the making of cooperative arrangements. However, cases in which there are family violence issues demand a different approach, one that recognizes the need to promote safety and accountability. In the majority of cases involving separating parents, cooperative co-parenting arrangements are ideal because these arrangements maximize children’s ability to have the best of what both parents offer. At the same time, there is extensive literature on “high-conflict” divorces, which focuses on couples that are unable to resolve their disputes without extensive court involvement. Within this high conflict group, family violence allegations are present in the vast majority of cases (Jaffe, Austin, & Poisson, 1995; Johnston, 1994). Assessing the validity and context of these allegations provides a critical basis for appropriate post-separation parenting arrangements. This paper is based on a literature review of this area, including sourcing in-press articles to ‘benefit from the most up-to-date materials’.
Mediating 'in front of the mirror': A case
study in child-inclusive practice.
Holmes,
Penny
Journal of
Family Studies v.9 no.2 Oct 2003: 267-272
In
this article, the author illustrates some of the subtleties
that can be involved within the practice of child focused
mediation. She describes a case study in which two
children were at considerable risk of losing meaningful
contact with their father, while they continued to
be overly vigilant about their mother's well being.
The National Abuse Free Contact Campaign.
Hume, Marie
Domestic Violence and Incest Resource Centre Newsletter
no.1 Autumn 2004: 21-23
The National Abuse Free Contact
Campaign is a coalition of organisations that advocate on behalf of women
and children going through the Family Court system, in cases where there
are concerns about domestic violence and child abuse. The campaign aims
to make the government prioritise the need for safety from violence for
children in contact arrangements. This article presents background
information on the current position of the Family Court, and makes
recommendations in the areas of the Family Court and child protection
systems, legal aid, training and education, and custody arrangements.
New approach to child dispute services
in the Family Court of Australia.
Gibson, Dianne
Family
Relationships Quarterly no.1 2006: 7-8, Online only
The Child
Responsive Model is described. The model is designed by the Family
Court's Child Dispute Services for working with families involved in
disputes over arrangements for children following family separation. The
model includes expert assessment and opinion provided to families, legal
practitioners and the courts in a way that community models don't offer,
and an increase in children's involvement.
Opportunistic research: Making the most of
a captive audience and a ready timeslot!
Doran,
Catherine
ADR Bulletin
v.6 no.7 Nov -Dec 2003: 35-39
The results
of a small survey of family lawyers about their attitudes
to alternative dispute resolution (ADR), the numbers
of clients they refer to mediation and other forms
of ADR, and why they refer clients to ADR, are presented.
The article includes the questionnaire that was used
and discusses the results.
Outer conflict, inner discord: Australian children in
post-separation disputes.
McIntosh, Jennifer; Long,
Caroline
Health Issues no.84 Spring 2005: 22-25, figures
Research indicates that divorce can have an impact on the wellbeing of
the children concerned, particularly their mental health. This article
looks at baseline data on 111 Australian families gathered prior to their
participation in child-focused Family Law Mediation as part of an
on-going Australian study. Data gathered includes the nature of parents'
conflict, the strength of their parental alliance, and the psychological
functioning of their children at the beginning of the mediation process.
The larger study aims to establish which form of intervention has the
most benefits for families.
Parental alienation syndrome: A paradigm for child abuse in Australian
family law.
McInnes, E
In: Conference papers:
Child Sexual Abuse: Justice Response or Alternative Resolution
Conference, Adelaide, May 2003. Canberra: Australian Institute of
Criminology, 2003, 8p. Online only (43 KB)
At its simplest, the
Parental Alienation Syndrome paradigm claims that allegations of child
abuse are invented and that children's statements and manifestations of
fear are the outcome of parental coaching. This paper argues that
conditions are created for the de facto operating presumption of the
Parental Alienation Syndrome paradigm in the courts because the Family
Court of Australia lacks the funding to investigate allegations of child
abuse by a parent. The author suggests that because the private
adversarial system of family law commonly fails to substantiate
allegations of child abuse, safety for children in family law proceedings
who are subject to abuse depends on access to a national professional
investigative service to inform the Court. She calls for a redefinition
of a child's best interests in the Family Law Act to give safety the
highest value.
Parental alienation syndrome in family court disputes.
Quadrio, C
In: Conference papers: Child Sexual Abuse: Justice
Response or Alternative Resolution Conference, Adelaide, May 2003.
Canberra: Australian Institute of Criminology, 2003, 9p. Online only
(37 KB)
Parental Alienation Syndrome is sometimes invoked in
family law proceedings to explain false allegations made by one parent
against another; usually the mother is said to be alienating the children
from the father, and the allegations usually refer to the sexual abuse of
a child. The author reviews the syndrome as defined by Gardner, and its
utility or otherwise in legal proceedings. She also reviews the issue of
false allegations of sexual abuse, which have been shown by various
studies to be uncommon, and the credibility of children making
disclosures.
Parental alienation syndrome revisited.
Achimovich,
L
In: Conference papers: Child Sexual Abuse: Justice Response or
Alternative Resolution Conference, Adelaide, May 2003. Canberra:
Australian Institute of Criminology, 2003, 10p. Online only (57 KB)
After discussing the influence in family courts of Parent
Alienation Syndrome (PAS) and related ideas, the author examines the
outcomes of reframing court processes in the light of these ideas. She
claims that no apparent improvements either in the quality of expert
witness testimony or in the welfare of children have resulted from these
efforts. She also believes that the 1995 reform of the Family Law Act has
encouraged the use of the PAS diagnosis, engendering an increase in
adversarial cases and a neglect of issues of child development and
attachment. The Act's protection of the child's right to contact has
resulted in the transfer of the right from child to parent, outweighing
the Act's increased recognition of the effects of violence upon children.
The author argues for longer and broader outcome studies to assess the
effects on the child and the protective parent of forced contact and
change of residence.
Partnership projects: Primary dispute
resolution: A report on partnerships.
Australia. Attorney-General's Department
Canberra, ACT: Attorney-General's Department, Family Law and Legal
Assistance Division, 2004, 93p, Online (PDF 413 KB)
This report
describes the experiences of seven Partnership Projects funded for two
years in 2001 by the Australian Government. Their aim was to develop
integrated and collaborative approaches for the early and effective use
of Primary Dispute Resolution (PDR) services in the community. The focus
of the partnership projects was on cooperation at the local level between
the agencies and professions that deal with family law disputes. As part
of the report, 'Collaboration Worklists' have been developed for use by
groups entering new family pathways networks and developing integrated
approaches to service delivery. These worklists have been informed by the
literature and the lessons learned during the partnership projects.
Policy considerations in family dispute resolution: Who's mediating the mediators?
Douglas, K, & Martin, J
Just Policy, 2007: 44, 22-29.
Whilst FDR is clearly a preferred option by government, there is a disjuncture between legislation, accreditation, policies and practices. This paper seeks to provide some clarity in these areas and to suggest a possible way forward in policy development.
Putting your children first: A video for separated
parents.
Australia. Attorney-General's Department
Canberra, ACT: Great Southern Communications for the Attorney-General's
Department, 2004, 15 minute video
This video explains how
primary dispute resolution (PDR) works and what its benefits are for
children and separated parents. Through several interviews with legal
practitioners, counsellors, psychologists, family services workers and
others, it discusses the importance of recognising children's needs, the
benefits of staying out of court and the outcomes of PDR for children and
parents. The video presents case studies of families undergoing difficult
separations that were helped by the PDR process offered as part of the
Contact Orders Program, funded by the Commonwealth Attorney-General's
Department.
Report on the
inquiry into child custody arrangements.
National
Alternative Dispute Resoultion Advisory Council (Australia)
Barton,
ACT: National Alternative Dispute Resoultion Advisory Council, 2004, 6p,
Online
NADRAC provides comments concerning proposals
contained in the Report of the Parliamentary Inquiry into Child Custody
Arrangements in the Event of Family Separation that are particularly
relevant to alternative dispute resolution policy and practice. Issues
discussed include obligations on mediators; mandatory mediation; shop
front single entry point; families tribunal; child inclusive practice;
timing of mediation; training of family law practitioners; family
conferencing.
Representing clients effectively in negotiation, conciliation
and mediation of family disputes.
Wade, John
Australian Journal of Family Law v.18 no.3 Dec 2004: 283-302, tables,
figure
This article argues that a major task for lawyers in
family disputes, negotiations, conciliation and mediation, is to assist
clients make wise decisions in the face of uncertainty. A short
preparation model of five hypotheses is set out. This model is
then applied to a fact scenario as an illustration. Example precedent
forms are attached.
Resolving disputes and making decisions in the family law
system: Ongoing challenges.
Behrens, Juliet
Legaldate v.16 no.3 Jul 2004: 8-10
What is the role of
alternative dispute resolution (ADR) in family law? This article provides
a background to the use of ADR in family law and considers the benefits
it offers over adversarial methods, including that it is cheaper, it
assists an ongoing relationship between the disputing parties, and that
family law matters are private and are more appropriately sorted out by
those involved. The article then critiques the use of ADR in family law
and considers future challenges.
Rethinking children's involvement in decision-making after parental
separation.
Smith, A B; Taylor, N J
In: 8th
Australian Institute of Family Studies Conference, Melbourne, 12-14
February 2003: proceedings. Melbourne, Vic: Australian Institute of
Family Studies, 2003, p17p. Online only
The authors draw on
recent caselaw and key findings from socio-legal research studies
undertaken by the Children Issues Centre (CIC) in New Zealand which
explored post separation family life and access/contact arrangements with
non resident parents, the role of counsel for the child, and custody and
access proceedings in the Family Court. Comparison is be made with other
CIC studies exploring children's participation within schools and the
community. Findings show that children can effectively communicate their
views, intentions and concerns, provided their social contexts and adult
partners (family members and/or professionals) are sensitive to their
perspectives. Recent trends within New Zealand's family law system
indicate much greater respect being shown for children's views and
participation. The authors conclude that enabling supportive and
reciprocal relationships to develop between children and adults, as well
as overcoming procedural barriers to their participation, are the keys to
further progress.
Risks and opportunities in mediation and primary dispute
resolution for women survivors of domestic violence (PDF 412 KB).
Bailey, Allie
Australian Domestic and Family Violence Clearinghouse
Newsletter no.20 Dec 2004: 14, and Online
Possible changes to the family law system that may mandate families to
attend mediation have the potential to put victims of domestic violence
at risk. This article calls for women survivors of domestic violence who
have undertaken mediation or primary dispute resolution to share their
experiences and contribute to a research project.
Roundtable dispute
management: A model for integrating legal practice and PDR in family
law (PDF 156 KB).
Ibbs, Walter; Crowley, Paul
In: Pursuing
excellence in family services: Family Services Australia National
Conference, Sydney, October 2004: proceedings. Deakin, ACT: Family
Services Australia, 2004, 8p, Online
Roundtable
dispute management (RDM), a model used by Victoria Legal Aid in primary
dispute resolution (PDR), is outlined in this presentation. The
presentation lists what RDM is, what its core values are, and the five
stages of the model from application to follow up.
Share the care: Parenting plan. Collaborative parenting apart.
Flahavin M, Bickerdike A, Brass T, Field B, Hunt M, Mertin-Ryan M, et al.
Relationships Australia 2007: pp 1-32.
Self help booklet for the negotiation and preparation of parenting plans.
Therapeutic divorce mediation: Strengths, limitations, and
future directions.
Smyth, Bruce M; Moloney, Lawrie
Journal of Family Studies v.9 no.2 Oct 2003: 161-186
Therapeutic divorce mediation is one of several interventions that hold
promise for assisting highly conflicted parents to resolve disputes about
their children. But how is it defined, what do we know about it, how is
it constrained, and does it work? This article seeks to address these
questions by reviewing the divorce mediation-therapy literature, and
critically examining the recent Conjoint Mediation and Therapy (CoMeT)
initiative, which is currently being trialled in Australia. (Journal
abstract)
Transformative mediation: Assumptions and
practice.
Goodhart, Ian; Fisher, Tom; Moloney, Lawrie
Journal of Family Studies v.11 no.2 Oct 2005: 317-322
The 'world view' from which the
theory of transformative mediation (TM) derives is explained and
differentiated
from other mainstream approaches. The role of the
transformative mediator is described. Some world view similarities between TM and
humanistic psychology are noted and the authors conclude by speculating
on the possible place of TM in postseparation disputes.
Using the feminist critique of mediation to explore 'the
good, the bad and the ugly' implications for women of the introduction of
mandatory family dispute resolution in Australia.
Field,
Rachael
Australian Journal of Family Law v.20 no.1 May 2006:
45-78
The 2006 amendments to Australia's system of family law
are significant. For example, family dispute resolution (processes such
as mediation) will now be mandated for parenting disputes. This article
considers, from a feminist perspective, issues arising for women as a
result of the introduction of mandatory mediation. (Journal
abstract)
Women's safety after separation project.
Hume, Marie;
Joy, Heather
Child Abuse Prevention Newsletter v.12 no.1 Winter
2004: 19-21, and Online
The Women's Safety after Separation
Project aims to assist separated women who have experienced violence and
abuse by developing resources to support and assist them in negotiating
children's matters, identifying policy approaches and supporting
research. This article covers the project's development, objectives and
anticipated outcomes.
Working on their relationships: A study of inter-professional practices in a changing family law system.
Rhoades H, Sanson A, Astor H, & Kaspiew R
Research Report 1: University of Melbourne. 2006.
First stage of project investigating the way in which family lawyers and family dispute resolution practitioners manage their inter-professional relationships when helping clients to resolve post separation conflict. In depth, semi-structured interviews with a sample of practitioners from each professional group. Identifies factors that facilitate good working relationships within these contexts and provides data about how these professionals view themselves and each other when they are dealing with the welfare of children or cases involving violence. Sets out views on suggested improvements to training and practice.
Working with gay and lesbian partners: Process and practice
issues.
Fisher, Linda
Australasian Dispute
Resolution Journal v.15 no.4 Nov 2004: 273-284
Issues in
family mediation with gay and lesbian partners are explored in this
article. It discusses: assumptions about mediation and about homosexual
men and women; parties' needs; the necessary skills and attributes of a
same sex mediator; issues in mediation practice and process; departures
from process; and mediating non disputes, such as the formation of
cohabitation, commitment and parenting agreements.