Lawrie Moloney

Child-Responsive Practices in Australian Family Law: Past Problems and Future Directions⋆

This paper considers key systemic issues that have to date constrained the hearing of children’s voices in both litigation and mediation processes in Australian family law. It is proposed that the time is now right for child-focused and child-inclusive approaches, described in this and previous publications, to become the default position in mediated disputes over children following separation. The application of child-inclusive practice to non-adversarial forms of litigation is also considered.

Changes in patterns of post-separation parenting over time: A brief review

Abstract In Australia, there has been considerable interest in recent years in the policy and practical implications of sharing parental care and responsibilities after separation – concepts that have culminated in the Family Law Amendment (Shared Parental Responsibility) Act 2006. While there is now good information on the prevalence, demography and dynamics surrounding different patterns of parenting after separation, not a great deal is known about the extent to which patterns change for individual families over time. This article reviews international and Australian studies that shed light on the stability of post-separation parenting arrangements in relation to shared and sole care. The notion of ‘stability’ is shown to have several dimensions, not all of which are necessarily beneficial to children. The implications ofplacing a greater focus on how post-separation parenting arrangements evolve over time are discussed in the context of child focused dispute resolution and decision-making.

Child-focused and Child-inclusive Mediation: A Comparative Study of Outcomes

Children have largely been absent from or on the periphery of mediation processes in postseparation parenting disputes. An accompanying paper (Moloney & McIntosh, 2004) canvasses a number of reasons why this may be the case. Moloney and McIntosh draw a distinction between child-focused and child-inclusive practice, provide a definition of both, and argue that the time is now right for child-focused mediation to become the minimum yardstick by which practice is measured. Child-inclusive practice, on the other hand, more formally fulfils the aspirations of the United Nations Convention on the Rights of the Child (and statements from similar bodies) that children should be consulted when decisions about their welfare are being made. Further, child-inclusive practice (as defined in Moloney & McIntosh) allows for consultation without placing the burden of decision making on the child. The present paper describes a current prospective study of outcomes for families utilising these two different forms of mediation: child focused and child inclusive. Over 12 months, the study follows the pathways of individual adjustment and parental alliance for families across the two forms of intervention, addressing whether and in what cases a childinclusive mediation process enhances postseparation family outcomes.

Changes in patterns of post-separation parenting over time: Recent Australian data

Abstract This article examines continuity and change in post-separation patterns of parenting across a three-year time span. We analyse longitudinal data from two recent Australian studies: the Household, Income and Labour Dynamics in Australia (HILDA) Survey; and the Caring for Children after Parental Separation (CFC) Project. Mother-residence was found to be the most common and the most stable pattern. Though far less common, father-residence also appeared to be reasonably stable. By contrast, shared care was found to be the most fluid of these three parenting configurations.

Child-focused Development Programs for Family Dispute Professionals: Recent Steps in the Evolution of Family Dispute Resolution Strategies in Australia

In 2001, the Australian Government funded professional development programs for both legal and nonlegal professionals who currently provide dispute resolution assistance to separating or separated families. These programs include Changing the Face of Practice (for family law practitioners) and Children in Focus (for mediators, conciliators, and counsellors). The aim has been to develop the ability of these professionals to assist more separated parents than has been the case to date, to resolve their differences in a way that focuses on the best interests of the children. The assumed starting point is the encouragement of arrangements that allow for parenting responsibilities after separation to continue to be shared. The precise manner in which these responsibilities are shared will vary significantly from case to case. However, the principle underlying the assumed starting point is that the arrangements are of benefit to the children and not simply tokenism. Within the framework of the Government’s overall strategy, this paper traces background and challenges, and describes the two recent professional development programs.

Key social issues in the development of Australian family law: Research and its impact on policy and practice

Abstract As in other Western countries, Australian society has changed considerably over the past 50 years, creating demands for shifts in family-related policies, practices and legislation. The social sciences have played an important role in this process by monitoring changes, informing the development of appropriate responses and assessing the effectiveness of such responses. In this article, we briefly explore four key social changes that have had a profound impact on Australian families – women’s increasing participation in the workforce; changing perceptions of fatherhood; greater recognition of the existence and destructive consequences of family violence and child abuse; and the increased emphasis on the rights of the child. We suggest that the first two of these changes contributed significantly to the introduction of the Australian Family Law Act 1975 (Cth), and that the other two changes have had a continuing significant influence on legislators’ attempts to articulate and implement acceptable decision-making principles with regard to post-separation parenting. Next we consider the most recent major amendments to Australian family law, the 2006 ‘shared parental responsibility legislation, and its subsequent evaluation by the Australian Institute of Family Studies. We show how this evaluation has provided a basis for examining both the extent to which the policy and practice intentions of these reforms were being achieved, and the extent to which further changes were required. We conclude by noting how the evaluation, along with other research, has contributed to further important changes to family law service provision and further significant legislative amendments.

Being in the room: Family Dispute Resolution practitioners’ experience of high conflict family dispute resolution

Abstract Since 1 July, 2007, under provisions linked to the Australian Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), separated and divorced couples in dispute about future parenting arrangements have, with some exceptions, been required to make a bona fide attempt at mediation (known under the legislation as family dispute resolution [FDR]), before being permitted to put their dispute before a court. While the effectiveness of mandatory FDR has been and continues to be the subject of close evaluation, the concerns of the research reported in this article are focused on the experiences of the family dispute resolution practitioners (FDRPs) themselves. What is it like to be “in the room” day after day with highly-conflicted family members, many of whom may not be attending voluntarily? What motivates FDRPs to continue with this work and from where do they derive their satisfactions? How do they deal in the moment and in their lives with the more toxic interactions that can take place at the very high conflict end of the spectrum? And what implications might any preliminary findings about these matters have for the long-term future of mandatory dispute resolution in family law?

Transformative Mediation: Assumptions and Practice

In this article, we articulate the “world view” from which the theory of transformative mediation (TM) derives. We differentiate TM from other mainstream approaches and describe the role of the transformative mediator. We note some world view similarities between TM and humanistic psychology and conclude by speculating on the possible place of TM in postseparation disputes.

Government's Response to the Family Law Maze: The Family Relationship Centres Proposal

In this paper, I consider the nature of the problem that Family Relationship Centres (FRCs) are attempting to address. Next, I suggest a typology of postseparation disputes, the purpose of which is to link families to the services that best suit their needs. I then posit reasons why the success of FRCs will inevitably depend on their recognition in the community as the default service for separation-related disputes. Next, I pay some attention to how an FRC might look from the inside, before addressing strategic issues related to their introduction. Finally, I consider FRCs’ strengths and limitations within the larger family law system.

Mandatory Dispute Resolution and the 2006 Family Law Reforms: Use, Outcomes, Links to Other Pathways, and the Impact of Family Violence

Abstract Community-based mandatory family dispute resolution (more generically known as family mediation) is a central plank of the 2006 changes to the Australian family law system. This paper provides an overview of the data on family dispute resolution from the Australian Institute of Family Studies’ evaluation of the 2006 changes. It reports on usage rates of family dispute resolution as well as immediate and medium term outcomes, perceived pathways towards resolution and the impact of family violence on both outcomes and pathways. Though the story is a generally positive one, the data also suggest a need for family relationship sector practitioners and family lawyers to engage proactively in assisting those families who are experiencing significant violence and or significant levels of ongoing serious conflict.