8. Court phase 1: Family Law and Domestic Violence

Question 1

What is family law?

Answer 1

Family law is an area of the law that deals with family matters and relationships. It includes laws to do with:
Marriage, civil unions, defacto relationships
- Surrogacy
- Family violence
- Termination of relationships and ancillary matters including divorce, property settlement, parenting arrangements
- Child abduction
- Paternity testing

Question 2

What is the history of family law?

Answer 2

Pre 1975: Divorce/separation
was fault-based -
adultery, desertion, cruelty, habitual drunkenness, imprisonment, insanity, attempted murder of spouse, persistent refusal to consummate marriage, sodomy (homosexual relationships)

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.

Question 3

When was the family law act and the family court established?

Answer 3

1975/1976 with several amendments since 1976-69

Question 4

What are the terms commonly used on the family court?

Answer 4

custody, access, guardianship,

“no-fault divorce”

Question 5

What is involved in decisions for children?

Answer 5

gender neutral, best interest of the children. CROC also informed way in which children were treated

Question 6

What are a parent’s rights under the family law act?

Answer 6

Under the Act, parents do not have rights to their children, they have duties and responsibilities – “parental responsibilities”.

Question 7

what did no-fault divorce change?

Answer 7

it changed the trend for increasing to drastic decreasing

Question 8

What happened in 1995-1996 in regards to the family law act?

Answer 8

Change of terminology was designed (in part) to promote an attitudinal change. Now refer to residence, contact and specific issues. Parenting plans introduced.

Question 9

What happened in 2000 regarding family law?

Answer 9

Federal Magistrates Court – dealt with less complex matters (in-house Family Consultants and Reg 7 consultants), including issues related to self-represented litigants and issues of the adversarial system

Question 10

what is the Magellan case management pathway?

Answer 10

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 legal aid; focused report from CP Department; family report; other expert reports) are directed to the case in the early stages with an aim of resolving the case within six months.

Question 11

What are the Magellan cases?

Answer 11

cases where serious allegations are raised about sexual or physical abuse of children

Question 12

What happened in 2003 in family law?

Answer 12

Child Custody arrangements in the event of family separation – inquiry leading to the ‘Every Picture Tells a Story’ report

Question 13

What did the ‘Every Picture Tells a Story’ report inform?

Answer 13

Informed current legislation – Shared Parental Responsibility Bill 2006.

Question 14

What was introduced in 2003?

Answer 14

Introduced a rebuttable presumption at the outset of shared parental responsibility … NOT (necessarily) equal time.

Question 15

What terms changed in 2003?
Count Counsellor >
Marriage counselling >
Contract >
Residence>
Child representative>

Answer 15

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 Children’s Lawyer

Question 16

How did the family law affect human service workers, social workers, psychologists, family therapists?

Answer 16

• Federal Government committed $400m to the establishment of 65 Family Relationship Centres.
• Except in special circumstances, parties will be required to participate in family dispute resolution prior to Court appearance.
• Presumption – at the outset – of shared parental responsibility/roles/decision-making
• Must be an accredited FDRP in order to issue section 60I certificates.

Question 17

What is the FDR (family dispute resolution)?

Answer 17

It is the FRC (family resolution center)’s main mode of direct service delivery

Question 18

What do most clients achieve with FCR?

Answer 18

Most clients who attend FDR reach agreement about their parenting arrangements either at FDR or subsequent to attending FDR.

Question 19

When do agreements reached at FDR tend to hold up?

Answer 19

in the medium term

Question 20

what reduces the chances of agreement in FDR?

Answer 20

Dysfunctional behaviours such as family violence reduce the chances of agreements being reached during or subsequent to FDR

Question 21

what is more likely to be granted in FDR?

Answer 21

Increased time with fathers is more likely to be negotiated at FDR than increased time with mothers.

Question 22

what do majority of parents believe occurs at FDR?

Answer 22

Majority of parents, in order of strength of endorsement, believe that at FDR, the child(ren)’s needs were taken into account; the parenting agreement worked for the child(ren); and the parenting agreement worked for them.

Question 23

Who is more likely to endorse positive responses?

Answer 23

fathers rather than mothers

Question 24

What is the approach when FDR is unsucessful?

Answer 24

best interest factors

Question 25

what is the two tier approach to the best interest factors?

Answer 25

1. Primary considerations (about having a meaningful relationship & protecting child from harm)
2. Additional considerations (including willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the child and other parent).

Question 26

what is a family report?

Answer 26

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 a functional value of contributing to informed and child-centred judicial decisions.

Question 27

what should be considered when family reports are ordered?

Answer 27

• The maturity of the child
• The nature of any disputes regarding the parent/child relationship
• CAR
• A report is the best method of obtaining desired outcome

Question 28

what do reports tell the Court?

Answer 28

Demographics
Personal history – schooling, relationships, genogram
Past relationships
Current arrangements – living, legal, personal
Individual culture – ethnicity, beliefs
Physical, emotional, mental health (meds)
Drug and alcohol use
Criminal record
DOCS involvement
Conflict resolution style
“time over”
Optimal parental qualities
Why here, why now, how come
Preferences – explain how these are child focused
CURRENT THINKING IS “JUST TELL ME WHAT TO DO!!”
What the child likes/dislikes
Any preferences? What’s that about?

Question 29

Why are family reports so effective?

Answer 29

• Dr Jennifer Neoh, Vincent Papaleo, Dr Simon Kennedy
  Run for the Hills. Why would you specialise in Family Law Assessments.
• Psychologists need to have 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 individual, family or child

Question 30

what is the challenge of family reports in regards to plain language?

Answer 30

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”.

Question 31

what is the challenge of family reports in regards to separation psychosis?

Answer 31

Separation psychosis – is very real with this population – irrational, amoral. Find it difficult to recognise or own poor behaviour.

Question 32

What does the single expert result in?

Answer 32

The single expert is an easy target that enables avoidance of self reflection and responsibility.

Question 33

what is wrong with the family law system?

Answer 33

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

Outside of the court, psychologists are “used” to gain advantage or increased leverage.

Question 34

What is the issue of intensive criticism of psychologists and their work?

Answer 34

Parties will critique and criticise family report to further their agenda. The report and psychologist come under critical scrutiny and frequently cross-examination in a very formal process within court. At cross-examination litigants are afforded considerable due process – at the expense of the expert’s feelings/sensitivities.

Question 35

What are results of the issues of family law?

Answer 35

• 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 and litigious group.
• Complaint boards are unfamiliar with broader context – compromised ability to appropriately deal with complaint.
• Safety issues

Question 36

what are the safety issues of the family law?

Answer 36

anecdotally the reports of threats of violence, physical and verbal intimidation, property damage and harassment of psychologists have, unfortunately, become expected consequences of this work.