Bibliographies
The following bibliography has been compiled from the Australian Family & Society Abstracts database and other resources held in the Institute's library. Where available a link to the document on the Web is provided. Most items can be borrowed from the Institute's library via the inter library loan system. Online publications in PDF format require Adobe Acrobat Reader.
Post separation parenting
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Children's living arrangements and contact with parents
Adolescents' views on the fairness of parenting and financial
arrangements after separation.
Parkinson, Patrick;
Cashmore, Judy; Single, Judi
Family Court Review v.43 no.3 Jul
2005: 429-444, figures
Young people aged 12 - 19 years were
interviewed about their experiences of parenting and financial
arrangements after separation. The following results are discussed:
young people's general views about the decision making process; dividing
time between the parents; the importance of sibling relationships;
patterns of residence; how much say participants had in their living
arrangements; contact patterns; young people's control over contact;
young people's views about the fairness of the contact arrangements;
comparing children's and resident parents' views about the fairness of
the contact arrangements and the financial arrangements; and fairness of
arrangements concerning money and property division.
The attitudes of separated resident mothers
in Australia to children spending time with fathers.
McInnes, Elspeth
Australian Journal of Family Law v.21 no.1 Apr 2007: 20-36, tables
Separated mothers are strongly supportive of children spending
time with their fathers as long as their children are safe, but fathers'
interest in and availability for contact are the key determinants of
contact practices, according to a survey of 175 separated resident
mothers in Australia. Mothers who had been afraid of their ex-partner
were much more likely to be concerned that their children were safe with
their father, however mothers' attitudes had no significant impact on the
frequency of contact. The distance between households was significantly
related to child-father contact frequency. Fathers were twice as likely
as mothers to cancel or not take planned contact. Child safety and child
health were the main reasons mothers gave for stopping contact on few
occasions. The research findings point to the policy limitations of
perceiving mothers' attitudes and practices as determinant of
post-separation child-father contact and the need for a greater focus on
women's and children's safety in family law policy. (Journal
abstract)
Children abused in contact arrangements: some implications
for practitioners.
Rendell, K
Domestic Violence and
Incest Resource Centre Newsletter no.2 Winter 2001: 3-8
Kathryn Rendell, Zoe Rathus and Angela Lynch recently completed 'An
Unacceptable Risk.. A Report on Child Contact Arrangements where there is
Violence in the Family'. This report was the result of a research project
conducted in Queensland under the auspices of the Women's Legal Service
Inc. for the Abuse Free Contact Group. The full report explores issues
associated with the investigatory agencies, the Family Court and the
legal aid system. This article outlines the approach taken by the
researchers and provides an extract from the findings in relation to
children and violence in the family. Some implications for working with
children experiencing abuse in contact arrangements are offered. The
report is available from the Women's Legal Service in Brisbane. (Journal
abstract)
Children's
living arrangements after parental separation.
Qu, Lixia
Family Matters no.67 Autumn 2004: 4-7, and Online
(PDF 195K)
Most children live with their mothers after parental
separation, and little is known about those who live
with their fathers. By using data from the study,
'Caring for Children after Separation', undertaken
by the Australian Institute of Family Studies, the
author investigates changes in the residence arrangements
of children. Looking at parents' reports of where
children were living at separation and at the time
of interview, this article explores the relevance
of age and gender of children and the repartnering
of parents as factors influencing residence choices.
Dealing with child contact issues: A literature review of mechanisms in different jurisdictions.
Fran Wasoff, University of Edinburgh, 2007.
Scottish Executive Social Research. (PDF 465K)
This paper presents a review of the ways in which post-separation child contact arrangements are addressed across a number of jurisdictions: Australia, Canada, United States, Sweden, New Zealand, France, Denmark, England and Wales. The author points out that, while policy in this area in particular must be based on solid research evidence, robust, systematic evaluations of the services provided by the countries reviewed are relatively rare.
Exploring options for parental care of children
following separation: a primer for family law specialists.
Smyth, Bruce; Chisholm, Richard
Australian Journal of Family Law v.20 no.2 Sept 2006:
193-218, figures
Managing the relationship between children and parents
where parents separate can pose enormous challenges
for family members, especially children. There are
also significant challenges for lawyers, counsellors
and other professionals whose task it is to help families
and children work towards a satisfactory agreed outcome
wherever this is possible. These challenges have been
much discussed in recent times in the context of the
Family Law Amendment (Shared Parental Responsibility)
Act 2006, and the associated reform package. In this
article, the authors look to recent research and the
creative ideas that might help family law specialists
work constructively with their clients towards outcomes
that, wherever possible, will be workable, consensual,
and for the benefit of the children. (Journal abstract)
Father-child
contact after separation: profiling five different
patterns of care.
Smyth, Bruce; Caruana, Catherine; Ferro, Anna
Family Matters no.67 Autumn 2004: 20-27, and Online
(PDF 281K)
Using data from the Institute's study, 'Caring for
children after Separation', this article reports
on the experiences and motivations of fathers with
a range of different parenting arrangements. The
following five different patterns of father-child
contact are examined: 50/50 shared care; standard
contact of every weekend or every other weekend;
daytime only contact; holiday only contact; and little
or no contact. The authors summarise some of the
key insights to emerge from this research.
Parent-child
contact and post-separation parenting arrangements.
Smyth, Bruce, ed.
Melbourne, Vic: Australian Institute of Family Studies,
2004, 140p, tables, figures, (Research report no.9)
and Online
This report presents qualitative data from a series
of ten focus groups which formed the Parent-Child
Contact Study, a component of the larger Australian
Institute of Family Studies Caring for Children after
Parental Separation Project. Fifty-four separated
or divorced parents took part in the focus group
discussions about different aspects of parent-child
contact. The qualitative data are also embedded in
the wider national picture through an examination
of data derived from a large representative sample
of separated/divorced parents who participated in
the Household, Income and Labour Dynamics in Australia
(HILDA) survey. Chapters in the report are: Why study
parent-child contact? by Ilene Wolcott and Bruce
Smyth; Research design by Bruce Smyth; Fifty-fifty
care by Bruce Smyth, Catherine Caruana and Anna Ferro;
Little or no contact by Bruce Smyth; Holiday-only
contact by Bruce Smyth and Carol Whitfield; Daytime-only
contact by Catherine Caruana and Bruce Smyth; 'Standard
contact' by Anna Ferro; Points of convergence by
Catherine Caruana and Anna Ferro; The demography
of parent-child contact by Bruce Smyth, Lixia Qu
and Ruth Weston; and Summary and conclusions by Bruce
Smyth.
Parenting after separation. A literature review prepared for the Australian Psychological Society. (2007)
Susie Burke, Jennifer McIntosh, and Heather Gridley (PDF 226K)
Drawing on a project undertaken by the APS in 2006 about the impact of separation and divorce on children, this report summarises the research findings on the impact of separation and divorce on various aspects of the lives of separating parents and their children, including their physical, psychological and emotional health, the financial and social impact, and the effect on the parenting role. The report also analyses the impact of separation and divorce on children at different developmental stages, noting the key issues to consider at each stage and the signs and symptoms of distress. Interventions to ameliorate the effects of divorce on children are also considered.
Rethinking contact arrangements involving young
children.
Altobelli, Tom
Australian Journal of
Family Law v.19 no.1 May 2005: 29-43
There is in Australia,
once again, much attention and enquiry focussed on decision making in
children's cases, both as to the substantive law that is to be applied
and the processes to be utilised. The purpose of this article is, among
other things, to contribute to the discussion that is taking place by
suggesting that there might be another way to deal with the interests and
needs of non-resident parents who desire to have meaningful roles in the
lives of their children. That other way would be to reconsider current
standard patterns of contact, particularly for young children, so that
these patterns not only more closely match the current research into
child development, but also more closely meets the developmental needs of
young children. (Journal abstract)
Satisfaction and dissatisfaction with father-child
contact arrangements in Australia.
Parkinson, Patrick; Smyth, Bruce
Child and Family Law Quarterly v.16 no.3 2004: 289-304,
figures
Patterns of contact between non-resident fathers
and their children, and mothers' and fathers' satisfaction
with contact arrangements are examined in this article.
The data indicate that more than one third of children
whose parents do not live together do not see their
fathers, while 17 percent have daytime contact only.
There is a clear contrast between the level of satisfaction
with contact arrangements for a majority of women
and the corresponding position for the majority of
men. Although 40 percent of resident mothers would
like to see more father- child contact taking place,
only 5 percent thought that there was too much contact.
However, 75 percent of fathers would like to have
more contact with their children. Those parents involved
with shared parenting arrangements indicated the
greatest levels of satisfaction.
Shared
parenting: the views of separated parents with 50:50
care arrangements.
Smyth, B; Caruana, C; Ferro, A
Family Matters no.65 Winter 2003: 48-55, ill.
What are the motives, arrangements, and reflections
of separated parents who spend equal time with their
children? This paper aims to provide some insights
by drawing on qualitative data derived from a series
of focus groups. Participants were recruited through
a story in a Melbourne newspaper combined with snowball
sampling. Responses are analysed of 12 separated or
divorced parents, each of whom had an equal (or near-equal)
shared care arrangement. Key themes that emerged from
the data are summarised, and a number of conditions
- relational and structural - that appear conducive
to making shared care a viable option for separated
parents are identified.
Sharing the parenting after separation:
a 10-year-old's tips for dealing with difference.
Moloney, Banu
Journal
of Family Studies v.12 no.2 Nov 2006: 277-280
Child focused
and child inclusive practices in post separation dispute processes are
informed by the principle of the best interests of the child. But also
informing these practices is the truth that children are capable of deep
understanding of complex life situations and can indeed educate adults in
ways that are wise and compassionate. A challenge for adults is to place
trust in the wisdom of the child. This article presents an interview
with a ten year old about her experiences of shared parenting. (Journal
abstract, edited)
Some
whens, hows and whys of shared care: What separated
parents who spend equal time with their children
say about shared parenting.
Smyth, Bruce; Caruana, Catherine; Ferro, Anna
In: Australian Social Policy Conference, 9-11 July
2003 - Papers. Sydney, NSW: Social Policy Research
Centre, 2003, 25p, Online only (349K)
Despite the broad policy push towards encouraging
co-parenting after separation - most notably the
recently announced parliamentary inquiry into a rebuttable
presumption of joint residence - little is known
about parents who opt for shared care of their children,
how these arrangements are structured, and how well
they work. This paper examines the motives and reflections
of separated parents who share equally in the care
of their children, as well as the types of schedules
devised. The data are qualitative and derive from
a series of focus groups in which fifty-six separated
parents (27 mothers, 29 fathers) were interviewed
on a range of issues related to parent-child contact.
Groups were structured around five different patterns
of father-child contact. The data offer useful insights
into shared parenting - particularly in relation
to the work/family balance, co-parental conflict,
and financial issues.
The unbreakable chain under pressure: the
management of post-separation parental rejection.
Clarkson,
Dale; Clarkson, Hugh.
Journal of Social Welfare
and Family Law v.28 no.3 - 4 Sept - Dec 2006: 251-266
There is controversy about the reasons for children rejecting one parent
after parental separation, and about how family courts should manage the
problem. This article reviews research into the causes of post
separation parental rejection and discusses ways in which the legal
system in New Zealand and other countries can respond. Various
management strategies within existing legal processes are proposed as a
means of maximising the chance that the child will maintain a
relationship with both parents. This article stresses the need for
professionals to make a commitment to the goal of children's entitlement
to two parents and to join forces to achieve the goal.
Time to rethink time? The experience of
time with children after divorce.
Smyth, Bruce
Family Matters no.71 Winter 2005: 4-10, figures
This article re examines the notion of time in the
context of post separation parenting. It is argued
that much of the recent debate in Australia on the
merits or otherwise of 50/50 shared care after separation
is not about parenting time per se, but about the
subjective experience of time with children. Two
types of time may exist after separation, each largely
gendered: for non resident fathers, time with children
is typically experienced as stilted, shallow, artificial
and brief; for resident mothers, time with children
may often be experienced as fluid, deep, demanding
and a given. Patterns of care after separation that
allow children to experience meaningful time with
each parent are important for children's and parents'
well being. This article explores these ideas in
the context of recent research into parent child
contact after separation.
When
the difference is night and day: parent-child
contact after separation.
Smyth, B; Ferro, A
Family Matters no.63 Spring - Summer 2002: 54-59,
figures and Online (PDF 195K)
Research into post separation parent child contact
has focused almost exclusively on the measurement
of the frequency of face-to-face contact. However,
there is more to parent child contact than just time.
The broad cultural, legal and policy push towards
encouraging post separation cooperative parenting
needs to be underpinned with detailed research that
goes beyond simply measuring the frequency of contact
between children and non resident parents. This article
considers one important dimension that has attracted
little attention to date: day-only contact versus
overnight stays.
Conflict/ abuse issues
Child abuse in the context of parental separation and
divorce: new reality and a new intervention model.
Brown,
T; Sheehan, R; Frederico, M; Hewitt, L
Children Australia v.27 no.2
2002: 35-40
Child abuse allegations in the context of
parental separation and divorce have long been seen as merely weapons
fashioned by angry and vindictive parents involved in separation and
divorce wars. They have been disregarded on the basis that they were
unlikely to be real. However recent research from Australia and overseas
has shown that this picture is not true. Child abuse in this context is
real and it is serious. Moreover the research has shown that the
socio-legal system does not serve children caught in this situation at
all well. The Magellan program, a world first experimental program to
overcome the problems for these children and their families as they
progress through the socio-legal system, was introduced by a consortium
of agencies in Victoria recently. This article reports on the program and
its outcomes, and considers implications of some of the components of the
new program for the various professionals working with this issue.
(Journal abstract)
Childcare, violence and fathering - are violent
fathers who look after their children, likely to be less
abusive?
Harne, L
In: Poverty, Violence and
Women's Rights: Setting a Global Agenda - Townsville International
Women's Conference, July 2002 - Conference papers. Sydney, NSW:
Australian Domestic Violence Clearinghouse, 2002, 11p, Online only (PDF
219K)
This paper reports findings from an exploratory
qualitative study with 20 fathers who had been identified as domestically
violent and were separated or divorced from their partners. The sample
was drawn from men who volunteered to be interviewed and were attending
perpetrator programs in different geographical areas of England. Most of
these fathers had contact with their children in the post-separation
context. The main method used was semi-structured depth interviews and
these were supplemented with violence and abuse indexes to assess the
extent of the men's violence. One of the aims of this research was to
explore the way violent fathers conceptualised their relationships with
their children when they were still living with them and their
experiences and views about contact in the post separation context.
Another salient area in the interviews was to explore men's perceptions
of their roles and responsibilities as fathers and to find out how much
they were involved in child care when living with partners. A separate
sample of ten mothers who had experienced domestic violence from partners
and whose children were having ongoing contact post separation were also
interviewed about their ex-partner's fathering practices to provide
comparative perspectives.
Columbus Stage III report: feedback from parents, children, and service
providers.
Pike, Lisbeth; Murphy, Paul; Ford,
Linley
In: Families Matter: 9th Australian Institute of Family
Studies Conference, Melbourne, February 2005 - proceedings. Melbourne,
Vic: Australian Institute of Family Studies, 2005, 7p, Online only
The Columbus Pilot project was implemented in the Family Court
of Western Australia in July 2001. Conceptualised as an inter-
disciplinary early intervention process in matters where there were
allegations of child abuse, domestic violence or family violence where
there were risk concerns for the children, Columbus has since become a
catalyst for a number of changes within the Western Australian family law
system. This paper reports some of the feedback from an evaluation of
Columbus which explored such issues as how parents experienced the court
system and the Columbus process, their views and experiences of child
representatives, court experts and legal practitioners, their experiences
with external service providers, and what impact they felt the Columbus
process had had on them, their former partner, and their children.
Similar themes were explored with children. Data were generated from a
series of semi-structured interviews with 19 parents, seven children
whose parents had participated in the Pilot, and a range of court
personnel, lawyers, child representatives as well as staff from agencies
who support the Court.
Current findings on Australian children in postseparation
disputes: outer conflict, inner discord.
McIntosh,
Jennifer; Long, Caroline
Journal of Family Studies v.11 no.1 Apr
2005: 99-109, figures
This paper sets out descriptive
baseline data on the first 111 Australian families participating in a
current study of the efficacy of child-focused and child-inclusive Family
Law Mediation.The families come from the first of two treatment groups in
that comparative study. While outcome data are not yet available on this
group, the baseline data, gathered prior to intervention, are of interest
and value. The paper describes the nature of parents' conflict with each
other, the strength of their parental alliance, and the psychological
functioning of their children at the time of presentation to the
mediation service. High mental health risk for the children in these
families is evident, both from parents' and children's perspectives.
Uniquely, the paper includes the perceptions of 73 children about their
parents' conflict and its impact on them. Implications are discussed,
underscoring the imperative of early intervention with separating
families that includes screening of the children's experience of conflict
and their own needs for recovery. (Journal abstract)
Domestic violence and child contact arrangements.
Kaye, M; Stubbs, J; Tolmie, J
Australian Journal of Family Law
v.17 no.2 Jul 2003: 93-133
This article outlines the results
of an Australian study examining the experiences of 40 women who have had
to negotiate and facilitate contact arrangements with an ex-partner who
has abused them. Those results are supplemented by findings from
interviews with 22 individuals and representatives of bodies
professionally involved in the process of facilitating the development or
implementation of child contact arrangements. It was found that for most
of the women the end of the relationship had not meant an end to violence
towards them. Much of that violence was linked in some way to the
negotiation or exercise of child contact. It was also found that the
protection of women and children was frequently overlooked in the process
of negotiating and implementing child contact arrangements. (Journal
abstract)
Family violence and family mediation.
Bailey,
Allie; Bickerdyke, Andrew
Domestic Violence and Incest Resource
Centre Newsletter no.1 Autumn 2005: 10-14
The Domestic
Violence and Incest Resource Centre (DVIRC) and Relationships Australia
Victoria (RAV) have formed a partnership to explore how separating
families can best gain the benefits offered by primary dispute resolution
(PDR) and not be disadvantaged or put at risk by mediation. This paper
summarises the purpose of the partnership, outlines the partners'
concerns about the use of mediation where family violence is present, and
describes the common ground between the agencies and their current
practice methods. It also explores initial findings from a research
project conducted by DVIRC and RAV to look at the experience for women of
mediation where there has been family violence. (Journal abstract,
edited)
Fathers and child abuse allegations in the context of
parental separation and divorce.
Brown, T
Family
Court Review v.41 no.3 Jul 2003: 367-380, tables
Issues
surrounding stereotyping of fathers in families where child abuse
allegations have been made has been increasing. In this article the
author examines the reality of the role that fathers play in relation to
child abuse allegations in the context of parental separation and
divorce, as projected against current research.
Group interventions for separated parents in entrenched
conflict: an exploration of evidence-based frameworks.
McIntosh, Jennifer; Deacon-Wood, Helena B
Journal of Family Studies
v.9 no.2 Oct 2003: 187-199
This paper explores the nature of
enduring postseparation conflict between parents; it looks to a growing
body of research around group interventions designed to help parents move
on from entrenched dispute, toward a more constructive coparenting
relationship, in the interests of their children. Interventions range
from traditional education approaches to therapeutic and treatment
oriented models. Evidence regarding the impact of specific interventions
is reviewed, and while encouraging, the need for more flexible,
differentiated models emerges. Simultaneously, attention is drawn to the
need for increased research activity in this burgeoning area of dispute
resolution. (Journal abstract)
Parents with enduring child disputes: multiple pathways to
enduring disputes.
Kelly, J B
Journal of Family
Studies v.9 no.1 Apr 2003: 37-50
The normative course of the
divorce process is one of heightened anger and conflict, anxiety,
diminished communication, and sadness or depression for one or both
partners. Frequently caused by feelings of betrayal, abandonment,
suspicion, and sharp disappointment, these emotions are often accelerated
by the separation and the adversarial nature of the divorce. The majority
of couples significantly diminish their anger and conflict in the first
two to three years following divorce (Hetherington <lt; Kelly, 2002; King <
Heard, 1999; Wallerstein < Kelly, 1980). Most of these emotionally
disengaged couples will provide parenting in a parallel fashion in each
home, or will cooperatively parent their children (Hetherington, 1999;
Maccoby < Mnookin, 1992). In either instance, the parents and their
children will generally experience low conflict in the ensuing years. A
small percentage of parents, estimated to be between 8 to 12%, continue
to engage in conflict in the years following divorce, with little if any
diminution of anger and hateful feelings (King < Heard, 1999; Maccoby <
Mnookin, 1992). This relatively small group of chronically contentious
and litigating parents utilise disproportionate resources and time of the
courts, and their children are very likely to be exposed to emotional and
physical interparental aggression (Johnston < Campbell, 1988; Johnston <
Roseby, 1997). (Journal abstract)
Post-separation violence: the male perspective.
McMurray, A M; Froyland, I D; Bell, D G; Curnow, D J
Journal of
Family Studies v.6 no.1 Apr 2000: 89-105
This study
investigated the male perspective of violence using a socio-ecological
framework wherein violence is seen as the product of individual, social,
cultural, environmental and situational factors. Structured questions
were developed for telephone interviews with separated males in Western
Australia. Volunteers were recruited via a media campaign focusing on:
'Why do some men hit women: Why don't all men hit women?' One hundred and
forty six interviews were analysed using Spearman's rho and Pearson's
chi-square and thematic analysis. Sixty-one of the men reported having
been violent, 14 at separation only. In 23 cases children witnessed the
violence. Influencing factors were reported as finances, alcohol/drugs,
fatigue/ stress, 'the system'. No significant association was found
between violence and having a source of support. Nearly half of the men
believed their violence was justified, either unequivocally or sometimes.
Fairness in the legal system was the most frequent suggestion for
redressing violence in society, followed by provision of counselling,
support, and education appropriate to the needs of males. Implications
for individual and societal responses are discussed. (Journal
abstract)
The Columbus Pilot: catalyst for an emerging model of an integrated
Family Court system in Western Australia.
Murphy, P;
Kerin, P; Pike, L
Family Matters no.64 Autumn 2003: 82-86 and
Online (PDF 102K)
The Columbus Pilot project was developed by
the Family Court of Western Australia to assist, enable, and encourage
separated parents to acknowledge the debilitating effects of continuing
conflict, violence or abusive behaviour, and to encourage couples to
resolve their differences without recourse to prolonged litigation in the
Family Court. The Project has acted as a catalyst for a number of changes
as both the judicial officers and counselling service staff have
developed new skills and knowledge in what is a difficult area of family
litigation and dispute resolution.
The impact of violence on mothers' and children's needs
during and after parental separation.
McInnes, Elspeth
Early Child Development and Care v.174 no.4 2004: 357-368
Exposure to domestic violence before, during and after separation has
direct negative and potentially long term impacts on women and their
children. The information reported in this paper was collected from
interviews with 36 single mothers in South Australia who had left violent
relationships. The article discusses some key contexts of separation from
violence, including access to housing and property, legal issues arising
from violence, post separation violence and sole parenting after a
violent relationship.
Relocation
Can we go or must we stay? Being able to
relocate with the children.
Watts, G
Law Society Journal v.40 no.10
Nov 2002: 66-69
Referring to significant
relocation cases subsequent to the commencement of
the amendments to the Family Law Act in 1996, in particular
to the September 2002 decision in U v U (HCA 36), the
author examines the legal situation in Australia and
compares it with law in the United Kingdom. He explains
that the current law in Australia is that the court
looks at the available proposals and chooses which
proposal is in the best interests of the child. He
reviews proposal options, considers whether the law
could be improved, and concludes that there is no clear
answer to the question posed in the title of the article,
stating that because the Australian law gives no clue
as to what the result will ultimately be, litigation
flourishes and new proposals are manufactured.
Case
study on 'best interests of the child': Family Law
Act 1975 in action.
Rowe, Margie
Legaldate v.18 no.3 Jul
2006: 2-5
The child relocation case of
ZN and YH and The Child Representative was heard
in the Family Court in 2002. This article discusses
the case and examines the legal principles regarding
parental responsibilities for the welfare and development
of their children, and the best interests of the
child principle. It considers how the court can work
out the best interests of the child, the types of
parenting orders the court can make, and the effects
of the 2006 family law reforms.
Family law and the indissolubility
of parenthood.
Parkinson, Patrick
Family Law Quarterly v.40
no.2 Summer 2006: 237-280
This article
examines the changing laws and social assumptions
of joint legal custody in western society since
the 1980s. It begins by noting that while marriage
may be dissoluble, parenthood is not, and laws
in Australia, America and European nations are
changing and tested by the new ongoing relations
between parents after they divorce. The article
discusses the change in child custody allocation,
the reconceptualisation of the post separation
family and the promotion of shared parenting.
These laws are highlighted by relocation issues
and parental disputes.
Family Law Council discussion paper on
relocation.
Mackay, Anita
Australian Journal of
Family Law v.20 no.1 May 2006: 9-11
The
relocation of a separated parent could have a significant
impact on any residence and contact arrangements that
have been put in place. This article summarises a discussion
paper on relocation that has been issued by the Family
Law Council. The discussion paper considers how relocation
should be defined, and outlines the current law on
relocation and the proposed reforms to family law contained
in the Family Law Amendment (Shared Parental Responsibility)
Bill 2005. It discusses the complex range of issues
at stake in a relocation, and invites submissions from
interested individuals and organisations on whether
and how the law on relocation in Australia should be
reformed.
New High Court decision on relocation.
Parkinson, P
Australian Journal of Family Law
v.16 no.3 Dec 2002: 170-171
The author
provides information about the relocation case of
U v U (2002) HCA 36; the basis for the appeal lodged
by the mother; the reasoning behind the affirmation
by the Full Court of the decision by the trial judge
preventing her from relocating her daughter to India;
and dissenting judgments.
Relocation.
Family Law Council (Australia)
Barton, ACT: Family Law Council, 2006, 90p, and Online (PDF 989K)
This report brings together the findings of a public
consultation in response to a discussion paper and offers advice on the
Attorney-General's terms of reference. Currently there are no specific
provisions in the Family Law Act 1975 relating to relocation nor is the
term 'relocation' defined. In addition to recommending changes to the
Family law Act, the report makes recommendations regarding: the impact of
relocation on children; the impact of relocation on parents; and the
impact of relocation on other people; and also reviews current law in
Australia and in other jurisdictions.
Relocation: balancing the judicial tightrope.
Kordouli, Vicky
Australian Journal of Family
Law v.20 no.1 May 2006: 89-110, table
After
parents separate, the parent with whom the child lives,
the 'residence parent', may wish to relocate. This
article considers the application of the paramountcy
principle to this situation. It argues that case law
suggests that the High Court favours a narrow interpretation
of the paramountcy principle and takes a narrow view
of relocation, while the Family Court favours a wide
interpretation of this principle and takes a broad
view of relocation. It is suggested that the recent
relocation decisions of the Family Court and Federal
Magistrates' Court reveal that, not withstanding that
each case is judged on its own merits, a wide interpretation
of the paramountcy principle translates into a tendency
to permit the relocation of the residence parent and
the children. (Journal abstract)
Relocation
cases: an Australian perspective.
Rice, A
In: Food for thought: conference handbook:
the 10th National Family Law Conference. Melbourne,
Vic: Television Education Network, 2002, p257-280
This
paper traces the history of leading authorities
relating to relocation issues, particularly those
which have been delivered since the introduction
of the Family Law Reform Act 1995 in the context
of the most recent Full Court and High Court decisions.
Relocation:
parents' right to 'intrametropolitan movement'.
Cooper, Donna
Queensland Lawyer v.24 no.3
Dec 2003: 132-134
In the case of D v SV, a non resident
father complained after the mother moved the children
115km away. The author discusses the facts of the
case, the decision of the trial judge, and the
appeal to the Full Court, which characterised the
move as short and allowable. She explains that
practitioners must now assess whether cases involving
the moving of children are relocation cases or
'intrametropolitan movement'. If acting for a resident
parent proposing a short move, all possible parenting
options should be canvassed that can satisfy the
trial judge that the children will continue to
have an ongoing relationship with the contact parent.
The
tyranny of distance: international relocation
re-examined.
Melton-Hill,
Susan
Australian Family
Lawyer v.18 no.3 Spring 2005: 5-12
The
relocation of children is a growing concern in Australia.
This article looks at the law on relocation, with
a focus on international relocation. It discusses
the difference between case law in England and in
Australia, considers reasons why parents may choose
to move, and argues the need for international conformity
and guidelines in this area.
U v U: a chauvinistic
approach to relocation?
Roebuck, J
Australian Journal of Family Law v.17 no.2 Jul
2003: 208-217
This article examines the question of how the
judiciary sorts through the sometimes ambiguous
guidelines in the Family Law Act concerning cases
of relocation, and makes the 'right' decision
for the child or children concerned. In U v U
the High Court made it clear that various outcomes
in respect of relocation may be considered by
the court.
U and U: the
High Court reconsiders relocation in the Family
Court.
Young,
L
University of Western Sydney Law
Review no.6 2002: 241-251
In the case of
U and U, the High Court considered the issue of
whether the residence parent and child should be
restrained from relocating away from the contact
parent. The author reviews the case, raising questions
about the best interests of the child, the child's
wishes, and whether judicial decisions are correct
in seeking to govern where the residence parent
may live without considering where the contact
parent should live.
U and U: reflections
on the High Court and family law.
Young, L
Alternative Law Journal v.28 no.2 Apr
2003: 78-82
The author critiques the way
in which the High Court has approached cases
involving family law relocation: those in which
a dispute arises from a parent's wish to move
and which thereby impact on parenting regimes.
She discusses High Court relocation cases AIF
v AMS (1999) and U and U (2002), and identifies
fundamental issues that she believes the majority
of the High Court failed to address.
U
v U, you v me, us v them.
Green,
M
In: 8th
Australian Institute of Family Studies Conference,
Melbourne, 12-14 February 2003: proceedings. Melbourne,
Vic: Australian Institute of Family Studies, 2003,
5p. Online only (PDF 28K)
The author
examines how the Family Court decides what is in
the best interests of the child in cases of relocation
- when parents wishing to relocate with children
after marital separation means that regular and frequent
contact with the non-custodial parent is prevented.
He suggests we should start with the notion of community
and proposes that 'Separation can explode a child's
sense of his or her community. Not only is the day
today relationship with each parent threatened, but
all that is familiar, secure and solid is threatened,
too. To remove a child from that community, if it
is a healthy one, is undesirable and harmful to the
child's wellbeing. It should only be done if absolutely
necessary and with great care.' Rather than focusing
on their own needs the question parents should consider
is 'What are the best possible arrangements we can
make for our children bearing in mind the community
in which they currently live?'
Shared parenting law
Family
Law Amendment (Shared Parental Responsibility)
Bill 2005.
Neilsen, Mary Anne; Norberry, Jennifer
Canberra, ACT: Parliamentary Libary, Parliament of
Australia, 2005, 54p (Bills digest no.99 2005-06)
Online (PDF 419K)
In this bill digest, the authors outline the main
features of the Family Law Amendment (Shared Parental
Responsibility) Bill 2005, which makes a wide range
of amendments to the Family Law Act 1975, implementing
a number of recommendations of the 2003 report, Every
Picture Tells a Story. The changes aim to bring about
a cultural shift in how family separation is managed
- away from litigation and towards co-operative parenting.
The main provisions are as per the following schedules:
shared parental responsibility; compliance regime;
amendments relating to the conduct of child-related
proceedings; changes to dispute resolution; representation
of child's interests by independent children's lawyer;
family violence; jurisdiction of courts; removal
of references to residence and contact; relocation
of defined terms used in Part VII. The digest also
outlines responses to the Bill, concluding that "the
diversity of views about the Bill is indicative of
how family law has the capacity to polarise views".
Family law: one size does not fit all.
Byas,
Anna
Alternative Law Journal v.28 no.5 Oct 2003: 250-251
The federal government has recently moved to resurrect a legal
presumption of joint custody. The author uses her own research data to
show that legal rules have little power over how people adjust to
separation and that the significant variation among separated parents
should be taken seriously before policy makers implement a one size fits
all legal presumption of equal time.
Family law reform: putting children first.
Ruddock, Philip; Roxon, Nicola
Law Institute Journal v.80 no.4 Apr 2006: 28-29
The merit of the Family Law Amendment (Shared Parental
Responsibility) Bill 2005 is debated. The author
of the first part of this article argues that the
proposed legislation defends the right of children
to grow up in a safe environment with both parents.
The second author, on behalf of the Australian Labor
Party, acknowledges that the Bill makes significant
improvements to the family law system, but disagrees
with some aspects, particularly those that relate
to victims of family violence.
Recent developments in shared parenting
and joint custody: a personal view from the Court.
Rowlands, Alwynne
Sydney, NSW: Family Court of Australia, Papers and
Reports - Paper presented to the 14th Annual Family
Law Masterclass Conference, Sydney, May 2005, Online
In recent years the Australian Government has shown
a particular interest in child custody arrangements,
following parental separation, with a Committee of
the House of Representatives looking into the matter
and the Executive releasing a discussion paper seeking
input from the community in relation to wide-ranging
reforms to the family law system. The Family Court
of Australia has responded to both these consultation
processes and the author discusses them in this paper.
Review of exposure draft of the Family
Law Amendment (Shared Parental Responsibility)
Bill 2005.
Banks, Cate; Batagol, Becky; Carson, Rachel; Fehlberg,
Belinda; Harrison, Margaret; Hunter, Rosemary; Kaspiew,
Rae; Maclean, Mavis; Rathus, Zoe; Rhoades, Helen;
Sheehan, Grania; Young, Lisa
Australian Journal of Family Law v.19 no.2 Aug 2005:
79-93
An Exposure Draft of the Family Law Amendment (Shared
Parental Responsibility) Bill 2005 (Cth) (the Bill)
was released by the Federal Attorney-General on 28
June 2005. The Attorney-General asked the House of
Representatives Standing Committee on Legal and Constitutional
Affairs (the Committee) to review the draft Bill
and report by 11 August 2005. The Committee in turn
invited community submissions by 15 July 2005. The
Bill amends the Family Law Act 1975 (Cth) (FLA) by
implementing a number of recommendations of the 2003
'Every Picture Tells a Story' report of the House
of Representatives Standing Committee on Family and
Community Affairs and subsequent government proposals
put forward in the 2004 'New Approach to the Family
Law System' discussion paper with funding being announced
in the 2005-2006 Federal Budget. In essence, the
changes aim to bring about a cultural shift in how
family separation is managed: away from litigation
and towards co-operative parenting. This article
comprises a submission made to the Committee responding
to the proposed changes, slightly expanded where
necessary to provide background information on the
proposals.
The 'best interests of the child' and parental
separation: on the 'civilizing of parents'.
van Krieken, Robert
Modern Law Review v.68 no.1 2005: 25-48
The concept of 'the best interests of the child'
has become paramount in current family law. This
article discusses the difficulty of establishing
the best interests of the child as a definable standard
in Australian family law, framing the discussion
within legal, social and political constructions
of the concept. It considers the inherent conflict
in applying the concept of the best interests of
the child to a post separation co parenting model.
It draws on Norbert Elias' analysis of social processes
of civilisation to argue that the joint parenting
model represents part of a social trend towards a
civilising of parents.
The law of postseparation parenting in
Australia.
Parkinson, Patrick
Family Law Quarterly v.39 no.2 Summer 2005: 507-525
Australian legislative responsibility in family law
and the language of parenting law in Australia are
explained in this article. The following aspects
of the process of allocating parental responsibilities
after separation are discussed: the court system,
private ordering, alternative dispute resolution
and the voice of the child in parenting cases. The
article summarises recent reforms of the family law
system, including the creation of Family Relationship
Centres and moves towards a less adversarial system.
It discusses a range of factors the courts must consider
when making parenting orders: no maternal preference,
gender, other patterns in determining outcomes of
parenting cases, shared parenting and relocation.
The article also looks at child protection issues
such as child abuse and domestic violence, and addresses
international child abduction and the recognition
of overseas' child custody determinations.
Parental alienation syndrome
Alienation
revisited
Lodge, P
Sydney, NSW: Family Court of
Australia, Papers and Reports - Paper presented at
Third Family Court of Australia National Conference,
Melbourne, October 1998, 15p, Online only (53K)
Parental Alienation Syndrome (PAS) is defined in this
paper as a disturbance in the child who, in the context
of divorce, becomes preoccupied with deprecation and
criticism of one parent which is either unjustified
or exaggerated. It arises from a combination of parental
influence and the child's active contributions to the
campaign of denigration. The incidence of PAS is explored
and the social context of alienation, parental alienation
and its manifestations, and children and alienation
are discussed. Suggested responses are considered,
highlighting the need for interventions to emphasise
and be guided by the restoration of contact as the
primary objective.
Are
children protected in the Family Court? A perspective
from Western Australia.
Jenkins,
S
In: Conference papers:
Child Sexual Abuse: Justice Response or Alternative
Resolution Conference, Adelaide, May 2003. Canberra:
Australian Institute of Criminology, 2003, 14p.
Online only (67K)
There is a
widespread belief that mothers make false accusations
of child sexual abuse against fathers in residency
and contact cases. This paper examines the validity
of this view as applied to the Family Court of
Western Australia, in particular, the belief
that false accusations are rampant; the questionable
nature of parental alienation syndrome; and the
belief that young children's accounts of abuse
lack credibility. The author claims that empirical
research demonstrates the rarity of false allegations.
She also expresses concern over judgements made
in the Family Court of Western Australia where
allegations of child sexual abuse are involved.
She examines the quality of expert testimony,
which often labels as unreliable disclosures
of sexual abuse from children. She argues that
ruling in favour of contact with a parent previously
accused of having abused the child does not necessarily
equate with the serving the best interests of
the child.
Children of divorce who reject a parent and refuse
visitation: recent research and social policy implications for the
alienated child.
Johnston, Janet R
In: Beyond the
horizon: conference handbook: 11th National Family Law Conference, Gold
Coast, September 2004. Melbourne, Vic: Television Education Network,
2004, p219-234, figure
A small proportion of children whose
parents have divorced develop strong negative attitudes towards one of
their parents. This paper critiques parent alienation syndrome theory and
reformulates it as the alienated child. It models factors that contribute
to alienation and presents supporting evidence from recent research
findings. The paper then discusses whether or not children need a
relationship with both parents, whether children who reject a parent are
at risk for future emotional or psychological disorders, and whether they
need court ordered treatment. It asks: at what point should children be
given their own voice and have their self determination respected?
Parental alienation syndrome revisited.
Achimovich,
L
In: Conference papers: Child Sexual Abuse: Justice Response or
Alternative Resolution Conference, Adelaide, May 2003. Canberra:
Australian Institute of Criminology, 2003, 10p. Online only (57K)
After discussing the influence in family courts of Parent
Alienation Syndrome (PAS) and related ideas, the author examines the
outcomes of reframing court processes in the light of these ideas. She
claims that no apparent improvements either in the quality of expert
witness testimony or in the welfare of children have resulted from these
efforts. She also believes that the 1995 reform of the Family Law Act has
encouraged the use of the PAS diagnosis, engendering an increase in
adversarial cases and a neglect of issues of child development and
attachment. The Act's protection of the child's right to contact has
resulted in the transfer of the right from child to parent, outweighing
the Act's increased recognition of the effects of violence upon children.
The author argues for longer and broader outcome studies to assess the
effects on the child and the protective parent of forced contact and
change of residence.
Parental alienation syndrome: a paradigm for child abuse in Australian
family law.
McInnes, E
In: Conference papers:
Child Sexual Abuse: Justice Response or Alternative Resolution
Conference, Adelaide, May 2003. Canberra: Australian Institute of
Criminology, 2003, 8p. Online only (43K)
At its simplest, the
Parental Alienation Syndrome paradigm claims that allegations of child
abuse are invented and that children's statements and manifestations of
fear are the outcome of parental coaching. This paper argues that
conditions are created for the de facto operating presumption of the
Parental Alienation Syndrome paradigm in the courts because the Family
Court of Australia lacks the funding to investigate allegations of child
abuse by a parent. The author suggests that because the private
adversarial system of family law commonly fails to substantiate
allegations of child abuse, safety for children in family law proceedings
who are subject to abuse depends on access to a national professional
investigative service to inform the Court. She calls for a redefinition
of a child's best interests in the Family Law Act to give safety the
highest value.
Parental alienation syndrome in family court disputes.
Quadrio, C
In: Conference papers: Child Sexual Abuse: Justice
Response or Alternative Resolution Conference, Adelaide, May 2003.
Canberra: Australian Institute of Criminology, 2003, 9p. Online only
(37K)
Parental Alienation Syndrome is sometimes invoked in
family law proceedings to explain false allegations made by one parent
against another; usually the mother is said to be alienating the children
from the father, and the allegations usually refer to the sexual abuse of
a child. The author reviews the syndrome as defined by Gardner, and its
utility or otherwise in legal proceedings. She also reviews the issue of
false allegations of sexual abuse, which have been shown by various
studies to be uncommon, and the credibility of children making
disclosures.
Parents behaving badly: parental alienation syndrome in the
Family Court: magic bullet or poisoned chalice.
Berns, S
S
Australian Journal of Family Law v.15 no.3 Nov 2001: 191-214
The author suggests a connection between the popularisation of
Parental Alienation Syndrome (PAS) and the apparent requirement of
adversarial processes to deliver a knockout blow. In an attempt to
investigate this, research was conducted into the way in which PAS
allegations have played out in the Brisbane registry of the Family Court
over a 5 year period. During this research, family law professionals were
surveyed and all unreported judgments between 1 January 1995 and 15 March
2001 were examined for evidence of PAS. Following analysis of the survey
data and the unreported judgments, semi-structured interviews were
conducted with a small sample of legal practitioners and counsellors. A
complex picture emerges from the judgments. This picture differs somewhat
from the expectations of those surveyed and interviewed and those of the
author and supports the likelihood of gender differences with respect to
the purposes of PAS allegations and the rhetorical contexts in which they
occur. (Journal abstract)