Legislative aspirations and social realities: empirical reflections on Australia's 2006 family law reforms

Abstract

The Australian government has recently introduced a Bill into Parliament that is intended to improve the way concerns about family violence and child abuse are dealt with in the context of post-separation parenting disputes. The move follows recent reports examining the impact of significant reforms to the family law system introduced in 2006. Motivated by a desire to ensure that children maintain involvement with both parents after separation and to place greater emphasis on non-court-based dispute resolution mechanisms, the reforms encompassed legislative change and new and expanded relationship services. The empirical evidence base on the 2006 reforms has highlighted shortcomings in the existing responses to family violence and child abuse, with one large-scale study by the Australian Institute of Family Studies (AIFS) demonstrating that a history of family violence was as prevalent among shared care arrangements as other arrangements, contrary to the intention of the reforms. This article uses the empirical findings from the AIFS Evaluation to reflect on some key theoretical ideas about how law operates. The Evaluation findings highlighted the prevalence of a history of family violence among separated parents in Australia and provided evidence that this issue complicates the fulfilment of the reform objectives in a range of ways, most obviously in the context of applying appropriate dispute resolution processes and making parenting arrangements that safeguard the well-being of children.

Keywords:

• Australian family law reforms 2006
• empirical evaluation

Notes

 1. The Bill passed through the lower house of Australia's bi-cameral Parliament on May 31 with a one-vote majority. It is expected to be considered by the Senate in November 2011.

 2. Attorney General of Australia. Protecting children at risk of violence (media release, 11 November 2010). The reports are: Kaspiew R., Gray M., Weston, R., Moloney, L., Hand, K., and Qu, L. (2009) Evaluation of the family law reforms, Melbourne: Australian Institute of Family Studies; R Chisholm (2009) Family Courts Violence Review, Attorney General's Department, Canberra; Australian Law Reform Commission/NSW Law Reform Commission (2010) Family Violence – A National Legal Response, Sydney: Commonwealth of Australia (ALRC); Family Law Council (2009) Improving responses to family violence in the family law system: an advice on the intersection of family violence and family law issues, Attorney General's Department, Canberra. This article refers extensively to Evaluation findings. Because of the size of the Evaluation Report, pinpoint references are provided to particular findings in endnotes.

 3. See Kaspiew R. et al. (2009), Section 1.2.

 4. Family Law Pathways Advisory Group. (2001). Out of the maze: Pathways to the future for families experiencing separation. Report of the Family Law Pathways Advisory Group (hereafter Out of the Maze) Canberra: Attorney-General's Department. John Howard (then Prime Minister of Australia), Reforms to the Family Law System, media release, 2 August 2004, http://www.pm.gov.au/news/media_releases/medi_Release1030.html

 5. Every Picture, 4.36–4.69.

 6. Mazorski and Albright (2007) 37 Fam LR 518, Brown J.

 7. In other circumstances a registered dispute resolution practitioner may issue a certificate indicating that a matter has been assessed as unsuitable for family dispute resolution or that a genuine attempt had been made to resolve the dispute (FLA s60I(8)). These certificates allow parents to lodge a court application.

 8. For a full description of the methodology, see Kaspiew R et al. (2009), Appendix B.

 9. See, eg, Bainham, A. (2003) ‘Contact as a right and obligation’ in A Bainham, B. Lindley, M. Richards and L Trinder (ed), Children and their Families: Contact, Rights and Welfare, Oxford: Hart, p 62. Some researchers have concluded that the link between law and human behaviour in the family law context is extremely tenuous: see eg Trinder, L. (2003) Contact after divorce: What the law has to offer in G. Miller (Ed.). (2003). Frontiers of family law (pp. 23–58) Aldershot: Ashgate; Byas, A. (2004). Post-separation parenting: What's law got to do with it? Unpublished doctoral dissertation, Adelaide: Flinders University.

10. This schema and this terminology are adopted here because they arise out of the Evaluation data. Other conceptualisations and labels (in relation to family law and dispute settlement in other legal contexts) are numerous eg Mnookin, R., and Kornhouser, L., (1979) ‘Bargaining in the shadow of the law: The case of divorce’, Yale Law Journal, 88, 95–997; Sarat, A and Felstiner, W, (1995) Divorce Lawyers and their Clients, New York: Oxford University Press; Christine Parker, Just lawyers, 1999, Oxford University Press, Oxford. The discussion here has been informed by this body of scholarship.

11. Chisholm 2010, drew attention to an imbalance in the legislation in the way that shared parenting arrangements were emphasised in key ways, such as in the obligations of advisors (FLA s63DA), whilst the need to protect children from harm was not: 107.

12. Kaspiew R et al., 2009, pp 22–28.

13. Ibid, pp 77–80, 100–102, 223–236.

14. Ibid, pp 232–233.

15. Ibid, section 2.2.

16. These are all important issues in considering gender and family violence: see eg Taft A and Flood M, (2001) ‘Are men and women equally violent to intimate partners?’ Australia and New Zealand Journal of Public Health, 25(6) 498–500.

17. Kaspiew R et al., 2009, p 26.

18. Ibid, pp 27–28.

19. Ibid, p 28.

20. Ibid, p 31.

21. Ibid, pp 77–79.

22. Ibid, pp 232–233.

23. Ibid, p 119.

24. Ibid.

25. Ibid, p 169.

26. Ibid.

27. Ibid, pp 113–117.

28. Ibid, p 168. See also Smyth B, ed (2004), Parent-Child Contact and Post-separation parenting arrangements. (Research Report No 9), Australian Institute of Family Studies, Melbourne.

29. Ibid, p 169.

30. See eg Mnookin and Kornhauser, above n9, Sarat, S. and Felstiner, W.L. (1995) Divorce Lawyers and their Clients: Power and Meaning in the Legal Process, New York: Oxford University Press, Howieson, J. (2011) The professional culture of Australian Family Lawyers: Pathways to Constructive Change 25(1) International Journal of Law, Policy and the Family 71-99.

31. Rhoades H, Astor, H, Sanson, A, and O'Connor, M., (2008) Enhancing inter-professional relationships in a changing family law system, Final Report, University of Melbourne: Melbourne; Howieson, above n55.

32. Kaspiew R et al., 2009, section 9.2

33. Ibid, pp 207–214.

34. Ibid, section 9.4.2.

35. Howieson's recent study highlights the role played by the interaction between the approaches of lawyers and the psychology of clients in decision making concerning family law dispute resolution.

36. Kaspiew et al., 2009, pp 222–229 and 245–255.

37. See also Laing, L. (2010), No way to live: women's experiences of negotiating the family law system in the context of domestic violence, University of Sydney, NSW.

38. Of note in this context is the Evaluation finding that whilst two (Family Court of Australia and Federal Magistrates Court) of the three main courts exercising family law jurisdiction introduced processes in which routine screening for family violence occurred when the reforms were introduced, the third court (Federal Magistrates Court) which handles the highest volume of children's matters did not have the resources to do likewise: 13.1.

39. Kaspiew R et al., 2009, p 313. The proportion of cases in which such allegations were raised in FMC matters remained relatively stable in the two time frames. Allegations were raised less frequently in FCoA matters but due to changes in process in this court (resulting in changes in the nature of the way evidence is presented) there is limited comparability in the pre-and post-reform data on this point.

40. Ibid, pp 132–135.

41. These figures are for cases in which the hours of contact are specified in the court files.

42. See eg Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005:40.

43. Kaspiew R et al., 2009, p 248.

44. Ibid, pp 340–1.

45. Ibid, p 357.

46. Chisholm 2009, Rec 4.3, FLC Rec 3, ALRC Rec 31.1–31.6.

47. Chisholm, 2009, Rec 2.3 (in relation to courts), FLC Rec 3, ALRC 21.1–21.5.

48. FLC Rec 5, ALRC Rec 21.4, 29.1–29.5.

49. Attorney General, Protecting children at risk of violence, media release, 11 November 2010; Family Law Amendment (Family Violence) Bill 2010, Exposure Draft and Consultation Paper, November 2010.

50. Kaspiew R et al., 2009, p 271.