Rae Kaspiew

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

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.

Family violence in children's cases under the Family Law Act 1975 (Cth): past practice and future challenges

Abstract The issue of family violence poses one of the most significant challenges in making post-separation parenting arrangements. Australian Institute of Family Studies research on allegations of family violence in family law children’s proceedings (Moloney et al 2007) has confirmed that under the previous family law framework, the issue of family violence was not dealt with effectively. This article examines the legal context for the report’s findings in Part I and considers how family violence will be dealt with under the new family law system in Part II.

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.

Children in Family Justice Data Share project and the Public Law Applications to Orders tool

Seven years ago, the Family Justice Review declared that the lack of ‘worthwhile management information’ on the family justice system was astonishing. It described a fragmented and siloed range of data systems that were a very long way from working together, even to provide performance-related administrative data for the family justice system, let alone outcomes insights for the children and families in it. Significant advances have been made in this area in recent times, with the release of the Children in Family Justice Data Share (CFJDS) project. Through a collaborative effort, databases from three areas have been brought partially together to enable children-focussed interrogation. A technically challenging and logistically complex endeavour, the project includes the family court case management system FamilyMan (Ministry of Justice), Cafcass’ electronic case management system, the Department for Education’s National Pupil Database and Children Looked After data. This potentially means that the pathways of families and children in the family justice system will be amenable to tracking in a multi-dimensional way over time, with the availability of data on educational performance expanding the possibilities beyond trajectories and towards a limited but important insight into outcomes. The project increases transparency of the operation of the system, with the release of a data set on applications and orders made under the Children Act 1989. The data set covers 706,630 children who interacted with public law (178,236) or private law (528,394) processes under the Children Act between 2000 and 2016. It covers England, and to a more limited extent, Wales. The release of the first product of the CFJDS, the Public Law Application to Orders (PLATO) tool, with further analysis, provides evidence on the operation of the justice machinery that children are subject to when local authorities have concerns about the way they are cared for in their families. According to the Children in Family Justice Data Share report, which sets out the method and rationale for the CFJDS project, the PLATO responds to substantial curiosity about regional variations in public law decisions among policy makers and academics and in cross government areas. In the context of an international drive towards evidence-based policy development and decision-making, apparent in England recently through the Nuffield Foundation’s £5 million commitment to incubate a Family Justice Observatory, the CFJDS project offers a hitherto unavailable opportunity. Realisation of the potential of the data set is dependent on the extent to which further analysis, thus far undertaken by Ministry of Justice (MoJ) analysts, occurs with capacity for external researchers to gain access under controlled conditions at the MoJ. Presently configured as a once off endeavour, the extent to which this opportunity is taken up will no doubt inform the priority that will be placed on measures such as this in the longer term. Used well, these data will provide a springboard for rigorous analysis of the operation of the family justice system, an opportunity that

Mapping paths to family justice: resolving family disputes in neo-liberal times

How strong is the shadow of law in agreement-based processes for post-separation disputes and what impedes resolution in these pathways? Answers to these and other important questions are to be found in a book that reports findings from an empirical study of the resolution (or not) of disputes through lawyer-led negotiation, mediation and collaborative law in the UK. Despite increasing policy support for such processes since the mid-1990s, empirical evidence on their efficacy has been sparse. This volume starts to fill an important evidence gap in this area, through its exploration of users’ experiences and professionals’ approaches to the resolution of parenting and property disputes in these three agreement-based pathways. The research was based on survey data (2975 respondents drawn from the TNS-BMRB Omnibus Survey [Omnibus Survey] and 3700 from the Social Justice Panel Survey [SJPS]), in-depth interviews with 95 parties drawn from the survey samples and also recruited through legal and mediation practitioners and interviews with 40 practitioners experienced in one or more of the three pathways. Recordings of sessions (five mediations, three collaborative law and five initial lawyer client interviews) were an additional data collection strategy in the methodology. Through the survey data, the research assessed levels of awareness of the three pathways among separated and non-separated sub-samples (both surveys) and experiences of the pathways among those who had used them (the Omnibus Survey). The interviews and recordings supported further assessment of the operation of and dynamics in each of the three pathways. Overall, the research findings on experiences are informed by data from a total of 253 people who had experienced these processes: 123 participants who had used solicitor negotiation (70 from the survey and 53 from the interviews), 105 who had been involved in mediation (46 from the survey and 59 from the interviews) and 25 who had used collaborative law processes (16 from the survey and 9 from the interviews), although the authors acknowledge that there is some lack of clarity about what people understood to be collaborative law processes. Experiences of survey participants extended as far back as 1995. In the context of publicly funded mediation starts of around 4000 annually between 2009–2010 and 2012–2013 (Figure 4.2), these samples are capable of supporting the development of a qualitatively rich rather than quantitatively extensive understanding of the operation of agreement-based pathways. The study sought to interrogate some complex issues. These included, ambitiously,

The family relationship centre legal assistance services partnerships program: Evolution and evaluation

Abstract In June 2009, the Commonwealth Attorney General announced a Family Relationship Centres/ Legal Assistance Partnerships Program, (the ‘Better Partnerships’ program) the aim of which 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). The present paper contextualizes this significant shift in policy and practice. It then reports on key results of an evaluation of the program, completed in late 2010 by the Australian Institute of Family Studies. The paper concludes with reflections on the program and on future directions.