Family Law
- Area of law that deals with family matters & relationships
It includes laws to do with: � Marriage, civil unions, defacto relationships, Surrogacy, Family violence, Termination of relationships & ancillary matters including divorce, property settlement,
History: Pre 1975 Divorce/Separation
Fault-based: adultery, desertion, cruelty, habitual drunkenness, imprisonment, insanity,
attempted murder of spouse, persistent refusal to consummate marriage, sodomy (homosexual relationships)
History Pre: 1975 Custody of Children
Decisions for children were grounded in notions around "tender years", maternal
preference, stronger
attachments to mothers and her supposed/ believed superior capacity to meet a
child's needs.
1975/76:Family Law Act &
Family Court
� Since 1976 - 69 amendments.
� Terms used: custody, access, guardianship,
"no-fault divorce".
� Decisions for children - gender neutral, best interest of the children. CROC also informed
way in which children were treated.
� Under the Act, parents do not
History: 1995/96:
Change of terminology was designed to promote an attitudinal change. Now refer to residence, contact and specific issues. Parenting plans introduced.
� 2000:Federal Magistrates Court - dealt with less complex matters (in-house Family Consultants and Reg 7
Adversarial System
- Family Law: Mother vs Father
Magellan (2001)
- Cases where serious allegations are raised about sexual or physical abuse of children
The Magellan case:
Management pathway consists of a team of Judges, Registrars and
Mediators ('Family Consultants') who handle the case from start to finish. Independent
Children's Lawyers (ICLs) represent the interests of children. Significant resources (i.e., uncapped leg
2003 - Child Custody Arrangements in the Event of Family
Separation
- Inquiry leading to the 'Every Picture Tells a Story' report
- In 2006- Informed current legislation - Shared Parental Responsibility Bill
2006
- Introduced a rebuttable presumption at the outset of shared
parental responsibility. NOT (necessarily) equal
Change of Terms
� Court Counsellor > Family Consultant
� Marriage Counselling > Family Counselling
� Contact > the time a child spends with or communicates with another person
� Residence > the person with whom a child is to live
� Child Representative > Independent Chil
A rebuttable presumption at the outset of shared
parental responsibility
- Parental responsibility is to do with decisions regarding the child's welfare such as schooling, medical/ dental, religious- baptism
- Both parents have an equal say in these matters
- If one of the parents don't believe it should be equal, they can reb
How does this affect human service workers, social workers, psychologists, family therapists?
When the Bill was implemented:
� Federal Government committed $400m to the
establishment of 65 Family Relationship Centres (FRC).
� Except in special circumstances, parties will be required to
participate in family dispute resolution prior to Court appear
Evaluation of FRCs (Moloney, 2013)
� FDR (family dispute resolution) is the FRC's main mode of direct service delivery.
� Most clients who attend FDR reach agreement about their parenting
arrangements either at FDR or subsequent to attending FDR.
� Agreements reached at FDR tend to hold up
When FDR is unsuccessful:
Best interest factors
- Two tier approach
� Primary considerations (about having a meaningful relationship & protecting child from harm)
� Additional considerations (including willingness and ability of the parents to facilitate and encourage a close
and continuing relationshi
Family Report
A professional appraisal of the family from a non-legal, non-partisan perspective, independent of the case presented by either party to a dispute. This comprehensive
and impartial social science perspective is otherwise not available to the Court, and has
When Family Reports are Ordered the Following Should be Considered:
� The maturity of the child
� The nature of any disputes regarding the parent/child relationship
� CAR- children at risk
� A report is the best method of obtaining desired outcome
What do Family Reports tell the Court?
� Demographics (difficult matters- relocation)
� Personal history - schooling, relationships, genogram
� Past relationships
� Current arrangements - living, legal, personal
� Individual culture - ethnicity, beliefs
� Physical, emotional, mental health (me
Why Do This Work- Family Law: Psychologists Need Expertise In:
� Forensic assessment of families,
� Detailed knowledge of child development,
� Particular skills in placing information in context,
� Knowledge of family law, and some understanding of the broader legal context.
� Our client is the Court rather than and
The challenges - The People
� Plain language explanations are often made to little avail.
When cautioned that the report writing process is not confidential, a parent will still disclose something and say:
"but don't put that in the report".
� If you get to this "pointy end", you ar
The challenges - The System
� The adversarial nature of family law in Australia is an anathema to the way in which most psychologists see
themselves and the work they undertake.
� Exposes psychologists and their work to intensive criticism.
Parties will critique and criticise family
Results of the People and the System
� Psychologists working in the family law area are reported to registration boards more frequently than any of their colleagues in other branches of psychology.
� The families referred for a family report usually reflect the most
embedded, conflict ridden