Families, policy and the law

Families, policy and the law

Edited by Alan Hayes and Daryl Higgins

This AIFS book seeks to explore some of the complexities that confront both those who frame social policy and those involved in the legal systems that intersect with child and family issues.

1. Weaving a common narrative: An introduction to essays on families, policy and the law in Australia

by Alan Hayes and Daryl Higgins

The collected essays in this book seek to explore some of the complexities that confront both those who frame social policy and those involved in the legal systems that intersect with child and family issues. This introductory chapter sets out the themes and issues addressed. This book narrates not only historical perspectives and current views, but points to some of the challenges for future directions in policy and law relating to the protection and wellbeing of children and their families in Australia.

PART A - Diverse family formation: Identity, recognition and law

2. Trends in family transitions, forms and functioning: Essential issues for policy development and legislation

by Ruth Weston and Lixia Qu

This chapter looks at the various ways in which family formation pathways and the characteristics and functioning of families have changed over the decades in Australia. It discusses trends in marriage, divorce, and cohabitation, and the resulting rise in new forms of families, such as grandparent-headed families, same-sex parented families, couples living apart together, and shared care. Though trends in the formation and stability of families have changed in striking ways over past decades, the fundamental things about families do not change. Most importantly, they represent the basic unit of society and the site in which most children are raised.

3. Ancestry, identity and meaning: The importance of biological ties in contemporary society

by Rhys Price-Robertson

Biological ties are important to people, there is no doubting that. But exactly why they are important is increasingly relevant at a time when so much about the family exists in flux - the shapes of families are shifting, as are the technologies used to assist in creating them. This chapter explores the role that biological relationships play in identity formation, taking as a starting point the writings of prominent philosophers David Velleman and Sally Haslanger.

4. Past adoption practices: Key messages for service delivery responses and current policies

by Pauline Kenny and Daryl Higgins

This chapter explores the themes of identity, connection and access to information in the lives of adults who were adopted as children, and the implications for service provision. It draws on findings from the Australian Institute of Family Studies' research project Past Adoption Experiences: The National Research Study on the Service Response to Past Adoption Practices, which featured surveys and interviews with over 1,500 people affected by adoption, including 823 adopted individuals.

5. The forced adoption apology: Righting wrongs of a dark past

by Nahum Mushin

On 21 March 2013, the Prime Minister of Australia offered a national apology to people affected by the forced adoption practices of the past. This chapter outlines the process leading to the apology, including the elements of drafting the document itself and the language used, issues considered, and the concrete measures of restitution that accompanied the apology.

6. Current open adoptions: Mothers' perspectives

by Phillipa Castle

Contact between birth mothers and adoptive families has been legally mandated and practised in Victoria since 1984. The legislation asks mothers to nominate a preferred frequency of contact in the form of face-to-face meetings and information exchange, which, with the agreement of the adoptive parents, is written into the adoption order. This chapter summarises findings from a study of the mothers' experience of mandated contact, focusing on the relationship between the right to have contact and the experience of the contact itself. The chapter describes the contact arrangements, the contact event, the mother's mental health, information exchange vs face-to-face contact, and the role of the adoptive parents and the County Court of Victoria.

7. Perfecting adoption? Reflections on the rise of commercial offshore surrogacy and family formation in Australia

by Denise Cuthbert and Patricia Fronek

Australians are increasingly using offshore surrogacy arrangements to satisfy their desire to become parents. By comparing this rise in offshore surrogacy with the rise of intercountry adoption in the 1970s, this chapter argues that offshore surrogacy is the latest shift in a highly dynamic market for having children as part of family formation.

8. Use of surrogacy by Australians: Implications for policy and law reform

by Sam Everingham

Based on a survey of 217 Australians who have used or intend to use surrogacy, this chapter looks at how surrogacy is practiced and arranged today. Sections include: parent characteristics, alternative options considered, use of uncompensated surrogacy arrangements, use of compensated arrangements overseas, costs, future intentions, response to criminalisation laws, and intentions on informing children. The chapter concludes with a discussion of current challenges in Australian law and policy.

9. Secrecy, family relationships and the welfare of children born with the assistance of donor sperm: Developments in research, law and practice

by Sarah Wise and Gabor Kovacs

An increasing number of babies are being born using donated sperm, where the resulting child is genetically related to the mother but not to the father who raises the child. This chapter discusses a tendency towards secrecy among parents of donor-conceived children, and developments in law and practice designed to ensure children born through donated sperm know how they were conceived and have access to information about their donors and half-siblings. This is couched in what we know about the implications of knowledge and secrecy for family wellbeing and child adjustment. It draws on new research from the Follow-Up of Children Conceived Through Donor Insemination project - a study of 111 Victorian donor-conceived children nested within the Australian Institute of Family Studies' Children and Family Life study.

10. Gay and lesbian parenting: The legislative response

by Adiva Sifris

Just as same-sex parenting is now more widely recognised by society in Australia, so too is it increasingly incorporated and recognised in family law. This chapter reviews how Australian law has responded to the social reality of gay and lesbian couples having children and raising families. It discusses the constitutional and jurisdictional framework, legal parentage and parenting orders, and pathways to parenthood, including assisted conception, surrogacy, foster care and adoption, and blended families.

11. Step-parenting

by Claire Cartwright

Step-parents enter the family as an outsider to the parent-child relationship and face significant challenges as they attempt to build relationships with children. This chapter focuses on the role of the step-parent and presents an overview of research and clinical literature that informs our understanding of the role and experiences of being or having a step-parent. Sections include: step-family terminology; structural differences of step-families; stereotypes and ambiguity; the step-parent role and child wellbeing; adaptive roles for step-parents; and the special difficulties of step-mothers.

12. Grandparents as primary carers of their grandchildren: Policy and practice insights from research

by Deborah Brennan and Bettina Cass

Grandparents have long played a major role in the lives of their children and grandchildren, with some providing extensive emotional, material, and practical support. This chapter presents major findings from a new study by the University of New South Wales on grandparents, focusing on the ways in which grandparent care is positioned at the intersections of state and family, public and private, and formal and informal care provision. A national survey was conducted with 335 grandparents regarding their demographic characteristics and family circumstances; financial disadvantage, employment and housing; physical and mental health; relationship and social issues; and access to support groups. In-depth interviews were also conducted with Indigenous grandparents on their particular issues, as well as with policy makers, service providers and support groups. The chapter concludes with issues for policy and practice.

PART B - Legal and statutory responses to families in difficulty

13. Contemporary issues in child protection intake, referral and family support

by Leah Bromfield, Fiona Arney and Daryl Higgins

Child abuse notifications have risen significantly over the last few decades. This chapter outlines the historical origins that underpin the current approach to child protection in Australia and discusses the theory and intent behind current reforms. It also discusses the promises of the public health approach to child protection and why it appears not to be delivering the desired outcomes.

14. Mandatory reporting laws

by Ben Mathews and Kerryann Walsh

To help protect children from significant abuse and neglect, each state and territory in Australia has enacted legislation commonly known as "mandatory reporting laws". Under mandatory reporting, specifically designated professionals who work with children are legally required to report certain kinds of child abuse and neglect to government authorities. This chapter explains the nature of these laws, professional duty of care, and the different legislative principles operating across Australia. It also highlights the need for effective reporter training and public awareness, especially given the tension between the widely perceived need for a community response to child abuse and neglect and the simultaneous concern to avoid unnecessary reporting of innocuous events and situations.

15. Children in the out-of-home care system

by Judy Cashmore

There has been a significant growth in the number of children being removed from the care of their parents in Australia - many of whom are placed in relative or kinship care. Children benefit from permanence and feeling secure in their placement. Although Australia has a relatively low rate of adoption from care, compared to UK and US, this reflects the lessons from past practices where ties with biological family were severed. This essay explores the role of shared family care in Australia - an alternative model for out-of-home care where the whole family is "fostered" rather than the child. It may expand the pool of carers, and balance the needs of protecting children while providing permanence and maintenance of identity and family connection.

16. Justice and the protection of children

by John Faulks

This chapter is about how the Family Court of Australia deals with matters involving children where there are allegations of abuse. The balancing of the interests of the children, parents, and other people associated with the children is at the centre of what is just in the family law system. This chapter examines this issue together with the differences in the roles of judges and experts in child development and abuse, and child psychology and psychiatry, and how each has a part to play in the system of justice. It is also concerned about how the voices of children are being heard in the system. Critics of the Family Court have suggested using a tribunal or a court of experts to deal with child abuse cases. This chapter analyses such systems and suggests that even if the current legal system is not ideal - and no one would suggest that it is - it is preferable to the alternatives.

PART C - Relationship breakdown and family policies and practices

17. Children, families and the law: A view of the past with an eye to the future

by Helen Rhoades

Despite the many amendments to the Family Law Act over the years, recent research suggest that it has failed to keep pace with the growing diversity of family practices in Australia, and that its original focus on children's developmental needs is in want of restoration. This chapter explores the current challenges for family law in relation to children, and how they might be met, by examining the background to the introduction of the Family Law Act in the 1970s and its modern resonances in Australia today.

18. The ties that bind: Separation, divorce and the indissolubility of parenthood

by Patrick Parkinson

There can be few areas of law or public policy where there is as much conflict and turbulence as in the law concerning parenting arrangements after separation. This chapter traces the shifts over the last few decades in Australia, from awarding custody to one parent to the more recent presumption of shared care. Inherent in this also are the issues of the indissolubility of parenthood and the problem of family violence. Sections include: Parenting after separation and the gender war; The abolition of custody; Tensions about law reform in Australia; Shared parenting and family violence; The 2006 reforms; Shared care and the changes made by the 2006 amendments; The Australian reforms in international perspective; and Finding the middle ground.

19. Confidentiality and "family counselling" under the Family Law Act 1975

by Richard Chisholm

Though family counselling is traditionally confidential, the law has a different tradition: namely, that the courts should be able to receive any evidence that will help them determine disputes that come before them. This chapter reviews the relevant provisions to discover just what the law means by "family counselling", and to what extent it protects confidentiality. It seeks to explain the legal rules and the reasons for them, and to indicate some of the underlying policies. The chapter aims to help those in this sector work effectively within the law and, if they wish, make an informed contribution to issues of law reform.

20. Has confidentiality in family dispute resolution reached its use-by date?

by Tom Altobelli and Diana Bryant

The confidentiality of consensual dispute resolution processes, such as mediation and counselling, has long been considered one of the defining features of dispute resolution and essential to its effectiveness. This chapter will briefly explore those claims and assert that there is little, if any, empirical evidence to support them. Indeed the Family Consultants Confidentiality Survey 2012, the results of which will be presented and discussed in this chapter, suggest quite to the contrary.

21. Family law: Challenges for responding to family violence in a federal system

by Rosalind F. Croucher

This essay explores the complexity of responding to family violence in a federal family law system in which these private law matters intersect very directly with public law matters relating to protection of children. The "different planets" that are reflected in the separate legal frameworks pose some very practical contradictory experiences - being a protective parent, but equally not undermining a child's right to a meaningful relationship with both parents. The Australian Law Reform Commission / NSW Law Reform Commission proposal for all federal family courts to have "concurrent jurisdiction" with state and territory courts is one such solution. The essay provides a number of improvements to legal frameworks and practice to synchronise efforts in order to achieve the goal of providing a seamless, accessible, fair, and effective response to separating families where there are concerns about family violence.

22. Families with complex needs: Meeting the challenges of separation

by Rae Kaspiew, John De Maio, Julie Deblaquiere and Briony Horsfall

This chapter identifies some of the main challenges pertinent to program development in relation to family law parenting disputes. As the evidence base about the families who use family law system services has expanded in recent years, it has become clear that better ways of meeting complex needs are required. Families that have the most need for services are those affected by issues such as family violence, child safety, mental illness and substance abuse. The evidence highlights the need for holistic, multidisciplinary responses in meeting the needs of these families, whose engagement with the system often requires solutions that address both legal and psychosocial issues in parenting disputes. This analysis draws on evidence from a recently released evaluation of the Coordinated Family Dispute Resolution (CFDR) pilot program to reflect on the service requirements of families with complex needs and the challenges in meeting them.

23. Post-separation parenting arrangements involving minimal time with one parent

by Rae Kaspiew, John De Maio, Lixia Qu and Julie Deblaquiere

The 2006 Family Law reforms introduced the principles of equal shared parental responsibility and a children's right to a meaningful relationship with each parent. However, there are still post-separation parenting arrangements involving only minimal time with one parent. This chapter examines the characteristics of these families, their care-time arrangements, and the mediation or court processes used to come to these arrangements. Findings are taken from recent research from the Coordinated Family Dispute Resolution (CFDR) pilot evaluation study and the Longitudinal Study of Separated Families.

24. Family violence and financial outcomes after parental separation

by Belinda Fehlberg and Christine Millward

This chapter explores the financial impact of family violence in separated families. It presents findings from a Victorian study on parenting arrangements, financial and property settlements, child support, and financial difficulties in separated families. The study found that family violence or the fear of violence often influenced parenting arrangements and thus indirectly influenced financial settlements, as well as having a negative influence on legal processes, disputes, and outcomes.

25. Lionel Murphy and the dignified divorce: Of dreams and data

by Lawrie Moloney

One of the goals of removing the concepts of fault and matrimonial offence from divorce law in Australia was to reduce conflict between separating parents. This chapter describes the work of Attorney General Lionel Murphy in introducing "no fault" divorce in the 1970s and - using data from the Longitudinal Study of Separated Families - examines whether relations between separating parents are more amicable three decades later. This longitudinal study commenced in 2008 with a sample of 10,000 separated parents, and looks at cooperation and conflict in relationships, violence, decision-making pathways, and use of family dispute resolution.

PART D - Social science and developments in Australian criminal and family law

26. Prosecuting child sexual abuse: The role of social science evidence

by Antonia Quadara

Despite significant reforms to the criminal prosecution of sexual offences against children, a gap persists between the number of people who have experienced sexual abuse as a child and the far lower number of incidents that are adjudicated. Through a process of attrition, only a small number of cases are prosecuted. This chapter briefly discusses the persistent "prevalence vs attrition" gap before highlighting three key issues that affect the extent to which a comprehensive narrative of sexual abuse can be presented to the jury: the laws of evidence, judicial warnings and directions to the jury, and the extent to which "extra-legal" evidence can be, and is, adduced by the court.

27. The scientists are coming: What are the courts to do with social science research?

by Michael Kearney

Decisions about the parenting of children is a balanced process, relying on and made within the context of the knowledge offered by the social sciences, both on an individual and broader basis. The manner in which social science knowledge may be used as a part of parenting determinations is a vexed and at times controversial topic. This chapter outlines how social science knowledge is taken into account in parenting proceedings pursuant to the Family Law Act 1975 (Cth) and considers some of the issues that have troubled courts in recent times.

28. Social science and family law: From fallacies and fads to the facts of the matter

by Alan Hayes

This chapter examines some of the fallacies and fads regarding social science "evidence" that can get in the way of the facts. As such, it has bearing on the broader question of how social science "evidence" is to be used in family law matters. It looks at: the historically contextualised and ever-changing nature of knowledge; some myths of uniformity and common misinterpretations of developmental science; and the primacy of discernment and judgement when assessing the facts of the matter, including the weight to be placed on social science evidence.

Concluding reflections

29. Complex family issues: Collective awareness, common narratives and coordinated approaches to promoting resilience

by Alan Hayes and Daryl Higgins

The collected essays in this book seek to explore some of the complexities that confront both those who frame social policy and those involved in the legal systems that intersect with child and family issues. This concluding chapter highlights the importance of collective awareness, common narratives and coordinated approaches in addressing contemporary social problems that bear on children and their families and promoting resilience and wellbeing. When it comes to addressing these needs, both policy and the law are framed in the context of the following realities: change is a constant, difference is the norm and complexity is a simple fact of life!

Producing an edited volume such as this involves intricately coordinating contributions from many people. First and foremost are all the authors, who were universally delightful "partners in crime". Our biggest debt of gratitude goes to them for their unhesitating willingness to join the venture, their unswerving commitment, and the fine scholarship that went into each of the chapters. We must also acknowledge our colleagues at the Australian Institute of Family Studies who supported, encouraged and provided ever-wise counsel as the collection of essays became a reality. We particularly thank our executive colleagues Sue Tait and Ruth Weston, and our executive assistants, Nancy Virgona, Aaron Dohnt and Rosemary Harding. The Institute's Publishing Manager, Lan Wang, deserves profound acknowledgement and appreciation for her inimitable skill in editing and typesetting and liaising with each of the authors. As always, Lan has gone "above and beyond" to lend her expert eye to the publication. The high standard of the finished product owes much to her intellectual insight. Lan was ably assisted by Katharine Day, who brought fresh eyes to the final proofreading, and Neil Conning, who undertook the indexing. Last, but by no means least, we thank our families for their forbearance, unfailing support and understanding as we focused on this, at times, consuming passion.

Alan Hayes and Daryl Higgins

Cover art

The cover painting is by Gloria SternBricks and Mortar, 2012, oil on canvas 92 × 122 cm, Artman Gallery, Melbourne, Victoria.

March 2015
308 pp.