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Disrupted Families

Disrupted Families

The law

By Stephanie Charlesworth, J Neville Turner and Lynne Foreman

CONTENTSREVIEWSEXTRACTS

Any publication based on an Australian family law would be misleading if the law were considered stable over a ten year period.

This new work takes into account the very different government policy initiatives over the past decade. The development of primary dispute resolution, by both legislation and procedures, has had an important impact on attitudes of both practitioners and clients. It also deals with the effects of these policies in practice, and discusses changes which may be anticipated in the near future. The latter include the pervasive and divergent effects of curtailing public funding, such as the limitations on legal aid and the rise in self representation and delays in the Family Court. Also dealt with is the response of the Family Court itself to these difficulties, in the form of streamlined case management, and adaptation of its non-litigation services to curtailments and pressures.

There have been other policy initiatives, such as attempts to encourage focus on children's needs and the establishment of primary dispute functions outside the Court. The latter include mediation and some counselling services. The establishment of an independent summary jurisdiction of Federal and Magistrates' Courts is discussed in the book, and which, if adopted in their proposed form, will make a considerable difference to clients and practitioners.

The aim of the book is to meet changing professional needs in the family law context which prevails at the beginning of the 21st century. Given the breadth of the task and the limitations of a single book, footnotes are used to provide information about available background reading, as well as current research and analysis.

Disrupted Families is the successor to Lawyers, Social Workers and Families.

Review of Lawyers, Social Workers and Families in the Australian Law Librarians Newsletter:
" ... an extremely readable and useful text for anyone working at the interface between law and social work."


CONTENTS

Law and social work issues: a team approach

Law, behavioural and social sciences issues
Professional responsibility and accountability in family matters
Family law and its implementation
Separation and its aftermath

Family law matters under State jurisdiction

Family law and State jurisdictions
Family violence and child welfare
Mediation
Professional training and roles

Table of Cases/ Table of Statutes/ Index


REVIEWS

"The present volume certainly drags any reluctant therapist screaming into the present with the need to understand the legal context of many family issues, including professional accountability for information given and not given.
Such headings as Confidentiality and Negligent Disclosure, Confidentiality and the Law, Obligation to Disclose and Duty to Warn will call to the mind of many a therapist those ethical concerns sometimes earnestly addressed without clear conclusion. The discussion under these and other headings is forthright and contains many recognizable examples. Detailed endnotes provide further information without disruption of the flow of the reader.
Those who work in the family law area will find this an invaluable reference book, dealing as it does with State jurisdictions as well as the Family Court itself. The writers give authoritative commentary …
Showing a fine understanding of the different perspectives brought to their work by lawyers and social scientists, the authors repeatedly present the thinking of each professional group, highlighting how this might be complemented to the benefit of the client, by the other. The result is an unusually rich and informative text with much to offer its dual readership."

ANZ Journal of Family Therapy, Vol 23 No 4, December 2002

"The major subjects are tackled here by three very experienced practitioners. They are (1) the family law of Australia and its division between federal and state jurisdictions; and (2) the relevant roles of lawyers and social workers in the aftermath of the break up of family relationships. Both subjects are bravely tackled and add much to the sum of received knowledge. … There is an excellent chapter dealing with mediation from both the theoretical and practical aspects. … this book faithfully and helpfully tackles important questions and offers solutions in response."

Family Law, January 2002

"[Disrupted Families] represents the best of the 'legal education for professions' texts. It is … an interesting and informative discussion of legal principles, cases, statutes and a wide variety of social science research material [which] does not patronise the reader. … The authors argue that social workers need a sound understanding of relevant law not just to protect themselves from litigious clients but also because '[s]tudy of the legal framework of practice and legal sources of help for their clients should produce a better understanding of constructive solutions to their client's problems.'

[T]he first section [of Disrupted Families] examines a range of issues in law and social work. These include professional responsibilities, including duty of care and accountability, a valuable overview of Australian family law including the problems and consequences of separation and divorce. This is all readable and engaging material … The second section examines a number of family law issues that are regulated under State jurisdiction including family violence, child welfare law, and professional training and roles. … Finally, mediation is considered in some detail …"

Alternative Law Journal, December 2001

"In the foreword, his Honour Chief Justice Nicholson states that 'Family law is … far more than black letter law, which on its own can be a particularly blunt instrument. Disrupted Families recognises the diversity of family disputes, the variety of means by which they may be resolved and the importance of interdisciplinary skills in that process.'

It is a comprehensive, informative reference work in a complex area of law.
The coverage of the distinctions between the laws of each State is, for example, well researched. The footnotes are excellent and detailed. … the examples of how mediation works are useful and illustrative. …
Disrupted Families is a comprehensive reference to family law for non-lawyers."

Law Institute Journal (Vic), December 2001

"When families in modern Australian society experience disruption, any effective help will require a working partnership between lawyers and social workers. That is the theme of this impressive work. Its academic/practitioner authors have succeeded in unravelling a complex tangle of State, Federal and Territorial laws, regulations, government policies and practical realities an involved professional needs to comprehend.

They acknowledge the difficulties many legal practitioners have had with what was once perceived as lack of accountability and even professionalism from social workers, but argue that misunderstanding and mutual ignorance have existed on both sides. They call for a co-operative inter-disciplinary approach, together with greater accountability and acknowledgement by social workers of legal parameters and confidentiality and duty of care obligations.
One of the most satisfying features of the book is the extensive citations, footnotes and references, including comprehensive tables of statutes and cases supplied. The authors justifiably make the point that the book may be read on at least three levels: as an overview of family law, a source of information for practitioners and a source book for research.
… there is a heavy, and in my view correct, emphasis on the effects of family disruption on children …
Case studies familiar to any family law practitioner are cited to point up the nightmare complexity of our federal system of laws. … Even to contrast the advantage of the WA position in family law and its more successful statistical outcomes is salutary.
Disrupted Families is an important addition to your bookshelves."

Law Society Journal (NSW), July 2001

"The word 'family' is given a wide meaning and there is material relating to married couples, de facto partnerships and same-sex relationships. The authors have dealt with a number of matters which are linked, perhaps indirectly, with family disruption; these range from marriage formalities through adoption and IVF procedures and surrogacy contracts to the distribution of property on death and negligence in giving advice. Attention is given to primary dispute resolution and mediation as alternatives to adversarial proceedings. There is also material relating to the distribution of property on the dissolution of marriage or of a de facto relationship, including the '50/50' and difficult areas such as valuations, superannuation and expectation under discretionary trusts (described by one judge as a 'chose in action').

The book also deals with several controversial matters which are not always to be found in texts dealing with family law such as the duties of spouses to one another, the duties of parents to children, the effects of sex-change (as to which South Australia has enacted legislation) and the problems that arise when a parent having custody of children wishes to remove to a distant location.
… This book covers a wide range of topics and can be commended to social workers and practitioners in the field of family law."

Law Society of Tasmania newsletter, July 2001

"This book is the successor to the well received 'Lawyers, Social Workers and Families', published ten years ago. [Its focus] is on the interdisciplinary lessons learnt from dealing with families passing through the experience of separation. The strength of the book, highly recommended by Nicholson CJ of the Family Court of Australia, is its use of valuable research … The focus is less on how to handle family law in court and more on creative and supportive ways of conciliating just and sensitive agreements between parties.

… there is an overview of different state jurisdictions' approach to family violence. There is a concise guide to broad principles touching on children's issues. The succinct treatment of principles applicable to property apportionments is extremely practical. All the information is presented in a most readable manner …
The book's best feature is its emphasis on the duties and obligations of those, especially social workers but including solicitors, who guide and advise parties in coming to agreements touching on matters of property and children's issues without having recourse either to the courts or even to initiating legal proceedings.
The great fear of the specialist practitioner is that well-meaning attempts at conciliation in this context can result in agreements that might reflect non-legal considerations which, on expert examination, ignore relevant legal principles. The risk is a result that is neither just nor sensitive and which, in a worst case scenario, might expose the advisers to professional negligence actions.
This book is therefore highly recommended to non-specialist practitioners … "

Proctor (Qld Law Society), April 2001

"The authors provide a fresh perspective on the subject matter of family law in Australia …

[They] encourage lawyers and social workers to understand more about the perspective and objectives which they each have when assisting clients. Teamwork between professionals assisting families is encouraged.
Significant issues not always at the forefront of family law discussion are helpfully ventilated. In particular the authors explore family law matters under State jurisdiction … Issues relating to exnuptial children, artificial reproduction, adoption, foster care, de facto partners and family testamentary dispositions are discussed in chapter 5. Family violence and child welfare are explored in chapter 6. Mediation is discussed in chapter 7. Professional training and roles are discussed in chapter 8.
The voluminous endnotes following each chapter are an advantage …
This book will be of interest and assistance to a wide audience: students wanting to place black letter family law in a wider perspective; to the layperson who wants a contemporary discussion of family law in Australia; and to the legal practitioner who is interested in broadening his or her perspective of the discipline of family law."

Australian Law Librarian, Vol 9(1) 2001

"Disrupted Families is easy to read and clearly presented. It simplifies and summarises legal aspects of family problems, and thus makes them accessible to social workers not necessarily versed with these issues. There are few, if any, concerns to mention …

Overall, this is a fine volume, well worthy of recommendation, and it deserves the attention of those working with families. Although the content of the volume relates exclusively to social workers, students of other disciplines, such as social welfare, nursing, and social sciences in general, as well as those working with families, such as social-welfare officers, psychologists, psychiatrists, and counselors would benefit from reading this book."

Journal of Family Studies, April 2002

"This book is an important resource for social workers as the information about the legal system is presented in a concise readable style while providing enough detail to be useful as a reference for specific issues which may arise. Of particular interest is the review of legal obligations for social workers with some sobering case examples. Family lawyers will benefit from reviewing the law in this broader context and giving consideration to the role of other practitioners working with families."

Ethos (Law Society of the ACT), December 2001


EXTRACTS

Chapter One - Law and social work issues: a team approach

This chapter sets the scene for the rest of the book. It takes a new look at the influence of the applicable legal setting on various human services, and the differences between ethical and legal professional standards in practice. From the point of view of lawyers it draws attention to ways in which their work may better serve their clients if they are aware of the reciprocal roles of other professions: in particular those who can support family members when legal crises occur.

Chapter Two - Professional responsibility and accountability in family matters

This chapter builds on the distinction between ethical and legal standards to explore the legal implications of holding oneself out to be a qualified social worker. It deals with the consequences of taking a professional responsibility generally and in the broader family field in particular. There is also a detailed consideration of the Rogers v Whittaker case which was decided in the High Court in 1994, and its implications for informed consent in non medical professions, which provides the focus of this book.

This chapter also analyses the consequences of lawyers lack of understanding of social work roles, and the neglect or misuse of social work services. Some of the ways lawyers can work with social workers to benefit their clients and enhance their practice in the family field are set out.

Chapter Three - Family law and its implementation

This chapter deals with the structure and jurisdiction of the Family Court, and the services it provides. It has been extensively re-written and introduces a number of new topics. Lawyers, Social Workers and Families dealt with the establishment and early phases of the Family Court, Disrupted Families - The Law looks at a very different Court as it exists 25 years after the Family Law Act was passed.

In some respects the previous fragmentation of the family law jurisdiction has been improved, as it now deals widely with child welfare matters (with the exception of child protection and juvenile jurisdiction which remain with the States). Legislative provisions have been developed with regard to parental responsibility and there is a much richer and more extensive case law than previously. The changed respective roles of judges, registrars, counsellors and mediators are described and discussed in the context of being new case management guidelines. Also, covered are ways in which the Family Court has sought to work co-operatively with State authorities in providing the protection for children. The impact of restricted government funding and present proposals for change are assessed in the light of current experience and research.

Chapter Four - Separation and its aftermath

This chapter has also been designed to rflect the extensive changes in the content of family law disputes and the legal provisions for handling these, over the last decade. Frequently, family law clients (and sometimes the people who deal with them), find the amount of decisions to be made by separating spouses are intimidating. In this chapter the purpose of the process of divorce is discussed and the steps in property division are set out as a series of stages or tasks. These are:

  1. identifying the property;
  2. disclosing and understanding the nature of each item;
  3. looking at the couples financial history;
  4. examining and estimating future needs;
  5. distribution of property;
  6. deciding the form of apportionment; and
  7. implementing agreements and orders.

Consideration of likely attitudes of those involved and possible approaches are given at each stage.

Another important topic is parents financial responsibility for their children. The Child Support Scheme and its 1999 changes are discussed as well as child maintenance outside the Family Court jurisdiction and children's property interests generally. The basic responsibility of parents for the children's welfare, decision making and implementing what is in the child's interest, is a key area. Current overseas literature research is used as a setting to analyse the changes to the Family Law Act which became law in 1995.

The impact of these changes and their influence on attitudes and thinking are discussed. It is clear that they have not yet resulted in diminution in the number of parental disputes which was one of their principal aims. The primary dispute resolution services which were also promoted by this legislation have gained in recognition but although their use is increasing, they have not yet become the first point of call for the majority of separating parents. Other influences on present litigation involving children, such as guidelines for child representatives and involvement of children in mediation and counselling are considered. Examples of the various approaches to children's issues are drawn from recent case decisions, and differences from earlier approaches are noted. Possible changes due to the introduction of the Federal Magistrates Services are also mentioned.

Chapter Five - Family law and State jurisdictions

During the eighties State law concerned with family responsibilities and relationships was a broader area than it is currently. For instance, some of the matters of concern at that time, such as legitimacy are currently much less often in dispute than they once were. One of the reasons for this is because whether a child's parents are married to each other or not does not effect whether disputes concerning their welfare can be properly dealt with in the Family Court. Other issues such as artificial reproduction for instance, and differences between genetic and social parenthood have grown considerably in importance and are included. As property division between separating defacto married parents cannot be dealt with under federal family law, it is also discussed in this chapter.

Chapter Six - Family violence and child welfare

The chapter aims to provide an overview of State family violence and child protection legislation, and the intersection of this legislation with Commonwealth family law. In discussion of family violence a comparative approach is used to show how legislation varies from State to State, and what the differing measures achieve. Many aspects of family violence are explored with a practical emphasis of the issues and problems which arise in practice.

State legislation regarding stalking provisions are also addressed and where practicable, case law relevant to both family violence and stalking is included. The section on child protection legislation also compares legislation in different States and illustrates how important the role of the Family Court of Australia can be in determining where children live and who looks after them.

After a brief discussion of the criminal jurisdiction of State children's courts the chapter concludes with a summary of recent developments which may affect the role of the Family Court.

Chapter Seven - Mediation

Mediation is a key interdisciplinary professional activity and hence is given extensive coverage in this chapter.

In the past, the place of mediation was little understood and at the best, regarded as peripheral in settling family disputes. The situation has considerably changed since 1990, and mediation now occupies a central position in what is now known as primary dispute resolution.

As well as taking an up to date look at the processes which generally come under this heading, this chapter deals with the place of mediation in public policy, and where it can and cannot assist individual clients. While the focus must be on resolving disputes and planning for separate future lives, mediation also requires knowledge of family law to clarify the parties' options and help them construct realistic terms of agreement. Mediators need to understand the way people react to each other under stress and the means by which they can still negotiate with each other for their mutual benefit. Some indication of the skills required and ways in which training can help, are set out.

Since 1996, the Family Law Act and Regulations have provided for minimum qualifications for family and child mediators, and guidelines which they must observe in practice. The implications of these provisions are analysed in relation to changed policy and practice in such areas as family violence, self-representation, and children's rights to participate in decision making on their own behalf.

Chapter Eight - Professional training and roles

The chapter has been prepared as throughout the book certain assumptions are made that social workers, lawyers and other practitioners involved with children and families understand the role each has in practice, and the background training which impacts on role performance. As this assumption is not necessarily correct the chapter provides a short account of background, training and guiding principles of social workers and lawyers. The purpose of the chapter is to provide each group with a better understanding of how training affects professional outlook.

The types of law are described and since legal training requires the study of legislation and case law these are described and explained. The process of statutory interpretation is also outlined and, in addition to describing other sources of law reference is made to the role that the Internet now has in legal research. References to useful web sites are also provided.

   

Published November 2000
Publisher The Federation Press
Paperback/384pp
ISBN 9781862873612
Australian RRP $49.50
International Price $45.00
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Family Studies
Law - Family
Law - Social Welfare Law
Law - Alternative Dispute Resolution


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