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

Abstract

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.

Participation, agreement and reduced acrimony through family mediation: Benefits for the ambivalent client in a mandatory setting

“…The agreement rate reported in this study (66%) is higher than earlier reports of agreement in Australian FDR (Kaspiew et al, 2009; Qu, 2019), though in keeping with studies of mediation elsewhere (Emery, 2012; Moloney et al, 2013). The agreement rate was lower among ambivalent participants (58%).…”

“…5 Studies from California, where mediation has been mandatory for several decades, provided cause for optimism in reporting majority agreement rates and strong client satisfaction (Depner et al, 1992;Kelly, 2004;Kelly & Duryee, 1992). 6 These statistics are not comparable for a number of reasons, including that the random sample surveys did not allow for partial agreements, and count respondents whose co-parent refused to participate in FDR in the denominator, or total of those who attempted FDR (Kaspiew et al, 2009;Moloney et al, 2013). This is an important difference, since as many as half of all FDR cases initiated do not progress to joint mediation because the respondent co-parent declines to participate (Morris et al, 2016).…”

“…The reforms greatly increased the number of clients accessing FDR, with 65 Family Relationship Centres (FRCs) established around Australia to facilitate this growth (Kaspiew et al, 2009; Moloney et al, 2010; Qu, 2019). However, in a mandated context, mediation may become a “tick‐box” exercise for some (Kovach, 1997).…”

“…Though this reduction undoubtedly reflects agreements reached through FDR, reported rates of agreement have varied according to methodological approach. A 2009 survey of clients found that 57% of parents ( n = 860) at FRCs and other centers offering FDR reached full or partial agreements in parenting matters, and most parenting clients were satisfied with their outcomes (Kaspiew et al, 2009). By comparison, surveys involving large random samples of the broader population of separated Australian parents suggest that those who attempt FDR in parenting matters achieve an agreement in less than half of cases, though the proportion has increased over the years since pre‐filing became compulsory (47% in the 2014 Survey of Recently Separated Parents; Qu, 2019).…”

Academic and Intercultural Competences of International Students in Higher Education

“…However, there are scenarios that are exempted to such process such as family violence or child abuse. An evaluation conducted found that one quarter of cases are successfully screened-out or excluded of family mediation because of these situations (Kaspiew et al, 2009).…”