Using professional practice experience to guide family law reform

Abstract

This article explores the possibility of using professional practice experience as a basis for family law reform. It draws on a recent Australian study which is seeking to use an understanding of everyday practice in the family law system to generate a coherent child focused decision-making framework for children's care arrangements that can be used by all professionals within the system. The study, the Children's Needs project, responded to practitioner complaints about the complexity of the current legislation and to evidence of the law's role in creating inconsistent messages about children's care needs across the system's different dispute resolution sites. This article discusses the project's potential as a law reform methodology in jurisdictions like Australia's, where recent policy developments have encouraged the use of alternative dispute resolution processes alongside changes to the law that reduce the discretion of the courts.

Keywords::

• family law reform
• Australian family law system
• professional practice experience
• children's care arrangements

Acknowledgements

This article is based on a paper presented to the RCSL Sociology of Law and Political Action conference, Toulouse, France, 2–6 September 2013. This work was supported by an Australian Research Council Discovery Project, No. DP110100707. The authors wish to thank Dr Deborah Keys, Ms Georgina Dimopoulos, and Ms Rebecca Apostolopoulos for their valuable research assistance on the project, and the Hon. Professor Richard Chisholm for his insightful feedback on an earlier version of this article.

Notes

^1. Note that in some jurisdictions, counselling, therapeutic and non-legal advisory services are located outside the family justice system: see, for example, Eekelaar and Maclean (2013, p. 8. For information about the Australian family relationship services sector, see Family and Relationship Services Australia (http://www.frsa.org.au/).

^2. The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) came into effect on 1 July 2006. The Act amended the Family Law Act 1975 (Cth).

^3. Each of which built on an earlier generation of policy reforms in the mid-1990s: see, for a description of the earlier reforms, Chisholm (1996).

^4. The presumption can be displaced if there are reasonable grounds to believe that a parent has engaged in child abuse or family violence, and can be rebutted if the court finds that shared parenting is not in the child's best interests in the circumstances: s. 61DA(2) and (4) Family Law Act 1975 (Cth).

^5. Parties are exempted from the requirement to attempt family dispute resolution before seeking court orders where there is a history or risk of family violence or child abuse or the application is urgent or made by consent of all parties: s.60I(9) Family Law Act 1975 (Cth).

^6. Carlyle & Muldoon [2011] FamCA 51; Benelong & Elias [2009] FamCA 1312; Henley v Marple [2009] FAMCA 948; Seaford & Seaford [2007] FamCA 1460; Vaughn & Vaughn & Scott [2010] FMCAfam 863; Beale & Beale [2011] FMCAfam 305.

^7. Participants, who were recruited from seven well established community sector organisations that provide family dispute resolution services in Australia, were selected for inclusion in the study based on their experience in the field and their breadth of understanding of children's developmental needs.

^8. The majority of practitioners responded to two vignettes and each vignette was the subject of between nine and 11 opinions. This allowed for saturation to be achieved for each vignette as well as across all six vignettes: See Ajjawi and Higgs, (2007).

^20. In the recent case of SCGV & KLD [2014] FamCAFC the Full Court held that there is no need to revisit s. 65DAA(1) where an earlier order for equal shared parental responsibility is to continue and equal time had previously been refused and was not explicitly raised in a subsequent interim hearing.

^21.Goode & Goode [2006] FamCA 1346, at para. 82.

^9. The research team for this stage of the project combined disciplinary expertise in law, psychology and sociology.

^10. University of Melbourne Ethics Approvals Nos 1339232.1 (interviews); 1339232.2 (roundtables); and 1339232.3 (questionnaire). A total of 17 judges and 20 family lawyers participated in the interviews and roundtables.

^11. These are found in Family Law Act 1975 (Cth), s. 60CC(3)(b), (f) and (i).

^12. See for the genesis of this terminology, Mazorski v Albright (2007) 37 Fam LR 518, at 526, per Brown J.

^13.Henley v Marple [2009] FAMCA 948.

^14.Henley v Marple [2009] FAMCA 948, at para. 83.

^15.Henley v Marple [2009] FAMCA 948, at paras 76, 97 & and 98.

^16. The Family Law Legislation Amendment (Family Violence & Other Measures) Act 2012 (Cth) commenced operation on 7 June 2012.

^17. Underpinning its introduction was a message that the ‘safety of children’ must be the ‘top priority’ for the family law system: Australian Government Attorney-General (2011). According to the government, this message was deemed necessary because of evidence that a number of the 2006 amendments had led to community misperceptions of the law which detracted from an appropriate focus on child safety: Australian Government (2010, at [4]).

^18. At the time of writing, the Australian Institute of Family Studies was conducting research to examine the impact of these amendments: see Australian Institute of Family Studies (2013).

^19. Note that the Full Court in SCGV & KLD [2014] FamCAFC (at para. 74) pointed out that the first three of these steps are not derived from the legislation.

^22. There were notable differences of outcome within the sample in relation to two2 vignettes. Of the 12 participants who were given the Peter & Sylvia vignette (based on the case of Seaford), five practitioners arrived at the same conclusion as the court (making an order for equal time), while seven practitioners decided that the child should live primarily with the father. A split also occurred in relation to the Joanna & Brett vignette (based on Henley & Marple). Of the 11 participants who responded to this vignette, six practitioners decided that the children should live primarily with their mother. Three of remaining participants decided to defer any change to the existing shared time arrangement (as the court did in this case), on the basis that the father should be given an opportunity to improve his parenting capacity. Two respondents were concerned about the existing arrangement but not able to reach a decision about whether to change it or give it one last chance without further information.

^23. Australia, House of Representatives Standing Committee on Family and Community Affairs, Child Custody Inquiry, Official Committee Hansard 13 October 2003, at 16–17. [Hereafter ‘Official Committee Hansard’].

^24.Official Committee Hansard, 20 October 2003, at 19.

^25.Official Committee Hansard, 29 August 2003, at 17.

^26. See on this problem in child protection settings, Dickens (2004, p. 17).

^27. See, for example, the following publications about child development concepts by family court judges: Altobelli (2011); Sexton (2012).

^28. This phrase comes from our Stage 2 data. It refers to the phenomenon of advice-giving by friends about legal issues, which is common in family law matters. See Law and Justice Foundation of New South Wales (2012).

^29. The Family Law Council, established in 1976, has responsibility under s. 115 of the Family Law Act 1975 (Cth) to provide advice and make recommendations to the Australian Government on ‘the working of the Family Law Act and other legislation relating to family law, the working of legal aid in relation to family law and any other matters relating to family law’. Its members are drawn from the different sectors of the family law system, including the family courts, the legal profession, legal aid, and the family relationships services sector (see Attorney-General's Department (2011).