Jurisdictions around the world have been grappling with the appropriate boundaries for the State's role in family law, particularly during this time of fiscal restraint. This article draws on some of the history and research from New Zealand, Canada and the United States to outline the fundamental elements of a just family law system. The authors suggest that wherever each State draws its boundaries, it should nevertheless provide for each of those elements.
The Child Protection Mediation Guidelines Workgroup came together under the auspices of the Child Welfare Collaborative Decision Making Network to examine program development and the practice of Child Protection Mediation (CPM). The Workgroup convened and began its work in 2010. The resultant “Guidelines for Child Protection Mediation” was approved by the AFCC Board of Directors in 2012.
Family Relationship Centres formed the centrepiece of major reforms to the family law system in Australia which were introduced from 2006 onwards. They were established all over the country between 2006 and 2008, providing information and advice and offering free or heavily subsidised mediation of parenting disputes. They are an early intervention strategy to help parents manage the transition from parenting together to parenting apart in the aftermath of separation, and are intended to lead to significant cultural change in the resolution of post-separation parenting disputes. They also play a role in strengthening intact family relationships (mainly through advice and referral). This article explains the concept of Family Relationship Centres and how they operate. It also explains the background to their development and how the idea came to be accepted by the Australian Government.
As a centrepiece of Australia's 2006 family law reforms, the community-based Family Relationship Centres (FRCs) represented a major development in the Government's commitment to incorporate family relationship services into its family law system. This paper sees FRCs as a logical development of the original conceptualising the Family Court of Australia as a “helping court”. The paper suggests that the aspiration to create a helping court was partially achieved in 1976 via the creation of an in-house family court counselling service, which was primarily focused not on law and legal principles, but on supporting the ways in which family members were managing the task of redefining relationships. While generally valued by judges and others, this service nonetheless found itself in tension with the Family Court's continued primary commitment to legally informed and adversarially driven negotiation and decision-making processes. Since 2006, the creation of FRCs has spearheaded a family law system that provides relationship-focused interventions away from the courts as the default option for most parenting disputes. Consistent with this aim, there is evidence of a diminished percentage of cases now requiring judicial intervention. The 2006 legislation also provides for courts to conduct “less adversarial trials.” Paradoxically, this has occurred alongside unequivocal evidence from the Australian Institute of Family Studies’ evaluation data that judicial officers are dealing mainly with families displaying seriously dysfunctional attitudes and behaviours. The legal challenge in dealing with these cases is for courts to provide child focused, fair and non-destructive internal processes. In addition, however, it is increasingly clear that to support and help facilitate their decisions, courts also need good working relationships with FRCs and other community based services. FRCs and the 2006 reforms offer the possibility of moving beyond the ideal of a “helping court” to the broader concept of helping family law system.
]]>This article deals with the process undertaken by the Australian Government to develop and implement Family Relationship Centres (FRCs) as part of a major package of reforms to the Australian family law system. The article outlines consultation undertaken in developing the reforms and explains the role of the FRCs. The article details the practical steps taken to roll-out the new FRCs. The services were to be outsourced to community-based service providers but there were many issues for the Government to address, including: how an FRC should operate; where they should be located; how to allocate the funding; and how to manage the roll-out of so many services. Other aspects of the implementation covered in the article include: addressing accessibility and quality control issues; training FRC staff; establishing a national telephone advice line and website; and informing the public about the new services. The article also refers to steps taken to support the introduction of compulsory dispute resolution; and research and evaluation undertaken to measure the impact of the reforms.
Family Relationship Centres (FRCs) have been described as a centerpiece of Australia's 2006 family law reforms. This paper places these centres in the larger context of the reforms and their commitment to providing community-based family services in the family law area. The paper also examines the empirical evidence regarding FRCs' use and effectiveness. It notes that while the objectives and intentions of FRCs place considerable emphasis on strengthening family relationships and assisting families to stay together, the centres themselves have only a modest level of direct involvement with intact families. FRCs tend to have strong links with other community-based family services, many of whom are more engaged with intact families; but it is difficult to gauge their effectiveness in this area. Most FRCs' direct services are aimed at separating families and most of that work involves family dispute resolution (family mediation) and associated services such as screening and assessment and the provision of relevant information. A substantial majority of clients who attend FDR at an FRC reach agreement about their parenting arrangements either at FDR or subsequent to attending FDR. These agreements also tend to hold up in the medium term. A majority of parents 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. A substantial proportion of FRC clients come from families that have experienced family violence or other dysfunctional behaviours, and such behaviours reduce the chances of resolving parenting disputes. The paper concludes by suggesting that having been created mainly as a default alternative to legal interventions and court processes, it is likely that a major future strength of FRCs will lie in their emerging capacity to work constructively not only with other relationship services and networks, but with family lawyers and the courts.
]]>In June 2009, the Commonwealth Attorney General in Australia announced a Family Relationship Centres/ Legal Assistance Partnerships Program, (the “Better Partnerships” program). Its aim was to assist separated or separating families, “by providing access to early and targeted legal information and advice when attending Family Relationship Centres” (McClelland, 2009). After contextualizing this significant shift in policy and practice, the present paper reports on largely positive key results of an evaluation of the program by the Australian Institute of Family Studies. The paper concludes with reflections on future challenges and possibilities regarding ongoing collaboration between Australia's legal and family relationship sectors.
]]>Family Relationship Centres (FRCs) established in Australia in 2006 are seeing parents from increasingly complex backgrounds including families where child protection matters may be of serious concern. These matters have required practitioners to shift their thinking about what responsibility they have for hearing the voices of children and their role in child protection. Many of the safety issues that present at FRC's fall below the statutory threshold for child protection intervention and this paper argues that FRC's are well placed to act as a referral and assessment point for families who might not otherwise be assessed or referred to services. This paper outlines a model of child inclusive practice (CIP) used in Anglicare WA's FRC's which is child inclusive but does not proceed to family dispute resolution. Where a risk factor such as family violence, mental health issues, or drug and alcohol issues is identified on intake with parents, children are routinely seen for an interview in order to obtain information about their needs and wellbeing. Literature indicates that many victims minimise violence and the risks associated with it; many parents maintain child contact with perpetrators for fear of retaliation; and many children protect their parents by not disclosing violence or other issues, because they do not want to “add fuel to the fire” or “be disloyal” to a parent. Case studies are provided to underline the importance of safety assessment.
This Commentary provides a brief overview of the search for alternatives to the adversarial legal system for separating parents in the United States as a context for understanding the vision and importance of the Australian legislation, and then turns to a consideration of six critical aspects of the 2006 Family Relationship Centres legislation that were essential to ensuring success from the outset.
The one family, one judge model is a recommended “best practice” adopted in jurisdictions across the country. This article reports findings from a survey of professional stakeholders (N = 165) in Baltimore regarding their perception of a recently implemented one family, one judge model in their jurisdiction. Perceptions of the one family, one judge practice are mostly positive; stakeholders believe that it improves the fairness and consistency of decision-making. Stakeholder concerns focused on implementation, scheduling, and familiarity among parties. Based on our findings, we highlight the importance of ongoing efforts to reduce potential bias, to improve scheduling practices, and to increase inter- and intra-agency coordination and communication to ensure that the one family, one judge model lives up to its promise while mitigating potential concerns.
Mandatory Child Abuse Reporting Statutes date back as early as the 1960s. These statutes require certain individuals to report any instance of suspected child abuse that is made known to them. Individuals who are mandated reporters include, but are not limited to, physicians, therapists, and schoolteachers. Over the past decade, with the eruption of sexual abuse in the Catholic, Jewish, and Mormon communities, special attention has been given to reporting statutes in determining who qualifies as mandated reporters. The clergy-penitent privilege, which exempts clergy members from having to report instances of abuse made known to them in their religious or otherwise professional capacity, remains one of the last reporting statutory exemptions today. This Note advocates for the abrogation of the clergy-penitent privilege in cases of child sexual abuse. In religious communities, where religious personnel are often the first to be made aware of child abuse, clergy members should be required to report instances of child sexual abuse in an effort to better protect children.
Most states have central registries for reporting suspected child abuse to help child protective services, childcare providers, adoption agencies, and professions that have contact with children, know whether an individual has a history of child abuse. If the local agency finds that there is some credible evidence to support the complaint, the report is marked “indicated” and the individual who is the subject of the report is listed on the central register. Although this information can be invaluable in preventing future child abuse, central registries may contain false or unsubstantiated accounts of child abuse, implicating innocent individuals. These falsely accused parents are left to deal with the consequences, such as loss of employment opportunities. To address the problem of indicated reports and the harsh consequences innocent foster parents face as subjects of such reports, this Note proposes that the standard for substantiating reports of child abuse or maltreatment should be raised from the “credible evidence” standard to the “fair preponderance of the evidence” standard.
Increasingly lawyers for children follow a model of “client centered” (as opposed to “best interests”) representation in child custody disputes in which the child client defines the objectives of the representation. The client-centered model, while appropriate in most cases to give voice to the child's preferences in a process that deeply impacts him or her, can create an ethical dilemma for the child's lawyer in cases where a child is truly alienated from the other parent by the actions of the alienating parent. Alienated children strongly and unreasonably express a preference for objectives of representation that might further damage the alienated parent's relationship with the child. The alienated child's objectives may be the result of a campaign of denigration and “brainwashing” by the alienating parent. This Note suggests that when a child is truly alienated from a parent, as diagnosed by a mental health expert, the child may have “diminished capacity” and therefore, the client-directed model of representation is not adequate. This Note proposes that the Child's Attorney must determine whether the child is of diminished capacity under the Model Rules of Professional Conduct and, if so, must treat the client accordingly under Rule 1.14. Specifically, the attorney may, if all other remedial measures are inadequate, override the child's wishes and advocate a position that the child would take, but for the brainwashing of the child used to alienate him or her from a parent.
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