The presumption may also be rebutted if the Family Court determines that it is not in the best interests of the child for the presumption to apply. Another major difference relates to which types of abuse and neglect (or, in the strict terms of some statutes, which types of injury or harm caused by these kinds of abuse or neglect) must be reported (see Table 3). And, given the nature of human development, this may never be a realistic possibility. Connolly noted that though a team within the statutory child protection service may provide family support services, more typically these services are provided by non-government agencies. Haslanger (2009) went on to examine the claim that biological ties are a significant factor in healthy identity development. While the Commonwealth Government is assuming increased responsibility for a national approach to children and young people,1 the states and territories in Australia carry the primary responsibility and power to make laws and decisions about the care and protection of children (previously referred to as "child welfare"). A particular perspective of the authors is, unsurprisingly, judicial decision-making. The LSSF data addressed key research questions regarding the use of FDR, immediate and medium-term outcomes, and the profile of the clientele. The child is almost certainly likely to be confused and resentful about the processes and possibly about the parent who brought the matter to court as well as the other parent. Concepts of harm or intention from other knowledge systems, including empirical social science, are thus not easily integrated. The Australian Art Sales Digest is a database of over 420,000 works by more than 12,100 artists who are listed as having either lived or worked in Australia or New Zealand, and an additional 18,000 foreign and other artists, offered for sale by auction in Australia and New Zealand over the last thirty years. They were driven by growing awareness of the existence and consequences of physical abuse, and the research and advocacy undertaken by the Colorado pediatrician C. Henry Kempe and his colleagues. Adoptive parents assert that they were at least innocent of any wrongdoing and saw themselves as doing the best for the children. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. The very term “development” is not a unitary construct. State and territory laws differ in several ways. Their data also suggested better outcomes for those experiencing violence (usually women) who had access to legal advice. Expert evidence is not blindly accepted in court, but is subject to what might be regarded as fairly common-sense principles. Moreover, unlike the court arena, in which there is no victim per se but a witness for the prosecution (or complainant), police are victim-focused. Yet, simultaneously, there is concern about over-reporting (Cummins et al., 2012; Wood, 2008). As previously indicated, the 2006 amendments to the Act brought about many changes, one of the most significant of which was changing the role of the court-employed family consultants so that all of their work was non-confidential. [FDR practitioner, Later Stage Interview]. Again, either mothers or adoptive parents within the individual triads were making choices on whether to participate in contact, even in the less immediate form of information exchange. Fronek, P., & Cuthbert, D. (2013). As a community, with special reference to the professionals now engaged in work facilitating surrogacy for family formation, we have responsibilities to these children, and the adults they will become. Past adoption practices: Key messages for service delivery responses and current policies, 5. 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. It is therefore essential that debate continues, reflecting on the key messages from this important national study reflecting a large and diverse orchestra of voices from those touched by an experience from the past era of "closed adoption" in Australia. (1979). Dr Sarah Wise is a developmental researcher with many years of research, policy and program development experience, covering a wide range of issues relating to children, parents and families. Kenny, M. (2001). Parents and intending parents through surrogacy were asked at what stage, if any, they would tell their child that an egg donor had been used, if this was the case. Nahum Mushin is an Adjunct Professor of Law at the Monash Law Faculty, where he teaches legal ethics. Furthermore, the development of self-knowledge is as much about introspection and the exercise of agency as about the mirroring of others. What is not known, of course, is whether those who made admissions in s 11F conferences also made admissions in those other pre-filing processes, which are confidential. Of all grandparent families, 64% comprised couple- or single-grandparent families with dependent grandchildren (whether under 15 years old, or older dependent students) and 36% comprised grandparent families with only non-dependent grandchildren. These myths are not necessarily false, but they are also not the result of scientific investigation; rather, they reflect metaphors and non-empirical, metaphysical presuppositions. Professor Kovacs is an honorary consultant to Family Planning Victoria. A comparison of expert evidence and judicial directions to counter misconceptions in child sexual abuse trials. An urgent policy issue for consideration therefore, is the lessons that can be learned from past adoption practices that can be applied to intercountry adoptions, adoption and permanent care for children in statutory out-of-home care, anonymous donor conception and surrogacy. Forkert, J. Thus the case law anticipated the pro-contact and children's rights focus of the 1995 legislation by 20 years. He is also an Adjunct Professor in the School of Law, University of Western Sydney. (2007). In both examples, the proposed legislative changes stop short of saying parents should be legally obliged to tell their children, but such measures would encourage parents to discuss the topic with their children before they unexpectedly discover their biological origins. (2012). Having a reasonable estimate of the number of grandparent carers is essential for policy making and professional practice, but there is little clarity about this issue. This often occurs in cases where there is intractable conflict between the parents, the child is apparently alienated from one or both parents, there are allegations of child abuse that have not been reported to the welfare authorities or the police, or there are issues of significant psychological illness in relation to the mother, the father or another person spending significant time with the child. by Rae Kaspiew, John De Maio, Lixia Qu and Julie Deblaquiere. On the other hand, among those who said their concerns had not been borne out, five provided further comments, including: My concerns proved to be quite wrong, and irrelevant. (2009). This has been so for quite some time. The propensity to position one's own life stories within a broader narrative framework has, for many, found a new avenue of expression: through stories that involve them in a corporeal lineage, that see them as a link in a chain of bodies that extends into the distant past and will continue to exist in perpetuity. However, from the vantage point of 21 years as a Judge of the Family Court of Australia, people's backgrounds - including culture, ethnicity, forebears, ancestry and many other like matters - are an important part of who each of us is within the society. In this part of the chapter I want to explore two concerns in this regard: the Act's limited recognition of family diversity and the need (once again) for the law to focus on supporting children's development. The Family Law Act 1975 (Cth) and the establishment of the Family Court of Australia ushered in the current framework of federal family law. After Lynn agreed to consent orders for substantial shared time she was assessed by the then CSA as being liable to pay child support to her ex-husband, who was self-employed. The power of the states to legislate in relation to family law is not limited in the same way, but where a state law is inconsistent with a Commonwealth law, the Commonwealth law prevails (s 109).2. This model was based on the premise that dead marriages should be given a decent burial and that it should be possible for the parties to get on with their lives and start afresh once decisions had been made about financial matters and custody. The reference group met on four occasions between August and November 2012. Step-mothers sometimes find themselves in competition with the biological mother (Cartwright & Gibson, 2013), some mothers report feeling threatened by the presence of another woman in their children's lives, and some may discourage children, actively or more subtly, from developing relationships with their step-mothers (Nielsen, 1999). Many highlighted the importance of Indigenous kinship systems and relished the opportunity to spend time with grandchildren to instil traditional Indigenous values. Two reasons may be advanced for the drastic decrease in the number of adoptions in Australia - fewer children are available for adoption, and the advent of assisted conception has decreased the number of childless couples. These included physical, emotional and sexual abuse; neglect; concerns about the safety of children as a result of the parents' mental health issues or the negative influence of parents' behaviour relating to drug and alcohol abuse; exposure to criminal activity; and antisocial behaviour. This is somewhat lower than in other countries such as England (12% in 2012; Department for Education, 2012) and the United States (15% in 2011; US Children's Bureau, 2012). Psychological implications of the anonymous pregnancy. Changing social and policy contexts have far-reaching implications for the law. 7 Police clearance refers to the point at which police have ceased the investigation, which may or may not result in charges being laid. Domestic violence, contributions, and s 75(2) considerations: An analysis of unreported property judgments. Following a steady stream of privately arranged adoptions of Cambodian and Vietnamese children from the late 1960s (Rosenwald, 2009), it was the mass airlift of '"war orphans" from Saigon in April 1975 that gripped the attention of the Australian public and thrust the possibility of overseas adoptions into the popular imagination (Forkert, 2012; Fronek, 2012). ", "That state and territory governments and non-government institutions that administered adoptions should issue formal statements of apology that acknowledge practices that were illegal or unethical, as well as other practices that contributed to the harm suffered by many parents whose children were forcibly removed and by the children who were separated from their parents.". In the child support context, separated parents who experience or fear family violence may be excluded from the usual requirement (known as the Maintenance Action Test) that they apply for child support to avoid a reduction in their Family Tax Benefit Part A payments (the main government payment to parents to assist with the costs of raising children). (Senate Report, para. The definition of family violence was also amended. Major factors associated with relationship tension were the physical and emotional demands of parenting grandchildren, but also the loss of retirement freedoms, and an increase in work-related stress. 2.29). In that report, the Standing Committee recommended: the Commonwealth government establish a national, statute based, Families Tribunal with power to decide disputes about shared parenting responsibility … with respect to future parenting arrangements that are in the best interests of the child/ren …. The essays in this volume also highlight the difficulties of coordinating approaches that span the social services and legal systems in order to achieve effective policy implementation. From 2009 to 2013 she contributed to the Institute's child protection and family law research programs. What makes these justifications for mediation confidentiality so problematic, indeed quite ironic, is that participants in family dispute resolution in Australia are rarely, if ever, consulted about whether they would like confidentiality, and if so to what extent. For this reason, the focus in this discussion is on families where children rarely or never see their fathers; that is, arrangements involving "little or no contact" with fathers. Mental health problems were reported by 29% of mothers and 22% of fathers (the phrasing of the question was general and did not require the respondent to identify whether the respondent, the other parent or both had the concerns and whether the problem was diagnosed by health professionals). Issues of entitlement were influential when making the initial decisions regarding the parameters of ongoing contact, with mothers being highly sensitive to the perceived needs of the adoptive parents. Rathus, Z. For example, about 43% of the children entering care across Australia during the year 2011-12 were under the age of five years, but only 23% of those in out-of-home care as at 30 June 2012 were under five. While the value of confidentiality presupposes that people will reveal information if they believe that such disclosures are protected, the reality is that people do not act in accordance with that principle. In addition, the living arrangements of some people do not fit neatly into the classification of households and family forms outlined above. Confidentiality. Hamer, D. (2008). Access to the database is available on either a monthly or annual subscription. (2009) pointed out, a key objective of the family law reforms introduced in 2006 was to create a cultural shift away from treating separation and disputes about the children as legal problems towards seeing them as relationship problems. Lawyers pursued a parallel set of objectives. [MSP, Early Stage Interview]. 1 In April 2013 the Federal Magistrates Court of Australia was re-named the Federal Circuit Court of Australia. Harman, J. In J. The family law system in Australia has been so constrained in its resources that this would simply not be possible. In addition to fairly standard approaches to law reform (i.e., reforming the substantive aspects of the offence and the admissibility of different types of evidence) are a host of other changes to the justice response to sexual offences. The survey provided insights into many aspects of grandparents' experiences in raising grandchildren. information about changing parenting practices; and assistance with the grief and loss experienced by all generations. Furthermore, same-sex families present in more diverse forms than the accepted two-parent model and thus further legislative intervention is required. The flow of information to and from lawyers was complex, since lawyers have an obligation to maintain client confidentiality and can encounter ethical difficulties in receiving information that contradicts what their clients have told them. The social lives of many grandparents also suffered. Lynn was the main carer in a substantial shared-care arrangement for her young son with her ex-husband, pursuant to Family Court consent orders that she had agreed to under pressure, including pressure from her solicitor. Child protection legislative reforms (PDF 79 KB) (Fact Sheet). Commencing in the 1980s, legislation was introduced at the federal, state and territory levels that recognised non-biological parents in heterosexual couples as the legal parents of children born as a result of assisted conception procedures, at the expense of the donors of the gametes. Confidentiality and "family counselling" under the Family Law Act 1975. Overall, there must be in the mind of the determiner, some satisfaction that the event that is alleged to have occurred has in fact occurred. Transitions into different family forms can have important financial implications, with flow-on effects on functioning. This chapter explores the financial impact of family violence in separated families. From the present authors' perspective, the fact that 11% admitted non-disclosure in a privileged context is a sobering reminder that truth is not guaranteed in any context, formal or informal, adversarial or non-adversarial, therapeutic or legal. As such, it then takes on the status of an article of faith rather than empirical fact. Magarey, S. (2009). A., Chambers, G. M., & Sullivan, E. A. 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. Council of Australian Governments. In M. Crotty & D. A. Roberts (Eds.). 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. Windows on the legal mind: The evocation of rape in legal writings. This means that constructs which started out, for example, in the social sciences cannot be transferred unchanged into legal discourse. The Commonwealth Government is primarily entitled to legislate in respect of specific topics set out in sections 51 and 52 of the Commonwealth of Australia Constitution Act 1900 (the Constitution). (And, in some cases, what is the relationship between the parents themselves?). Rathus, Z. Where children have been freed for adoption and parental rights terminated in the US, many older children are in legal limbo, with no legal parents and no prospect of ever being adopted (Cashmore, 2001; Lewis, 2004). Legislative power is divided between the Commonwealth and the states and territories, and neither the Commonwealth nor the states and territories have exclusive legislative competence in relation to families.1 The Australian Constitution gives the Commonwealth Government the power to make laws with respect to: (1) "marriage" (s 51(xxi)); and (2) "divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants" (s 51(xxii)). Tremblay, R. E., & Nagin, D. S. (2005). The Australian Capital Territory (Adoption Act 1993, s 14), New South Wales (Adoption Act 2000, ss 23, 28), Tasmania (Adoption Act 1988, s 20) and Western Australia (Adoption Act 1994, s 39) have legislated so that same-sex couples are eligible to adopt. Investigators will need to follow leads and clues in that account in order to provide the specificity required for an actual charge. Morphy, F. (2006). Clearly, a definitive conclusion on the topic awaits much further research (Warshak, 2001). More than half said that their friendships and community participation had deteriorated due to raising grandchildren, and even larger proportions said time for their own interests and their general wellbeing had declined. In 2009, she co-edited the collection, Other People's Children: Adoption in Australia, and journals in which her work appears include Social Policy and Society, Australian Journal of Politics and History, Journal of Australian Studies, Australian Feminist Studies, American Indian Quarterly and Australian Social Work. Distinguishing between more serious and less serious cases of abuse and neglect can be difficult, but this is what differential response aims to achieve. The FDR sessions were generally conducted face-to-face, although "shuttle" sessions (where the parties were separate and the FDR practitioner moved between them) also occurred. The battered-child syndrome. Young, L., Monahan G., Sifris A., & Carrol, R. (2013). Those who had prophesied serious adverse consequences for women sought to demonstrate the negative effects from the law based mainly on their interpretation of qualitative data (Rhoades, Graycar & Harrison, 2000); but the evidence for any relationship between the 1995 reforms and adverse consequences for women was less than compelling. They believe it works best if step-parents support the parent's discipline, and act as back up when parents are not present. The truism remains that if participants in the family law system do not articulate the existence of issues in respect of which they need help, no help can be given. 2 All names have been changed to protect privacy. The normal chaos of family law. (p. 31). In Re Cormick (1984) 156 CLR 170 it was held that the marriage power could not extend to a child who is neither a natural child of both the husband and wife, nor a child adopted by them. (2008). This can add a further layer of complexity. Advances in neuro-imaging and biochemistry have revealed the brain in a very new, complex and dynamic light. Crucial information - at least from the point of view of an empirically informed picture of sexual abuse - is absented through exclusion rules, tests and balancing acts. There are a number of issues that are relevant to understanding the complexity in working with people who perpetrate family violence. (2011). van den Akker, O. Dennett, for instance, posited that the tendency to believe in God, deities or other supernatural forces arises out of an evolved capacity to attribute intentional action to others. In the mid-1970s and now, the continuing decline in the numbers of babies available for adoption has led not simply to a shift in the market but also, we argue, to the emergence of a new market model. Previously she was a Senior Research Fellow at the Australian Institute of Family Studies National Child Protection Clearinghouse. This is not to say that judges are the only people who can make decisions about these sorts of things. On the other hand, mothers see adoptive parents as active parties in the forced removal of their children. While untested, a further two mothers were comforted by the knowledge that their right to contact would be upheld by a court of law. It is difficult to live a flourishing life when one is the member of a stigmatised group, when one does not have access to the relationships and forms of knowledge that the dominant family schema deems normal and necessary. Unlike mothers, descriptions given by fathers (n = 6) who said they had experienced family violence did not convey coercion, control or fear, as the current legislative definition requires, and mainly involved financial abuse. One of the key objectives of the 2006 changes to the family law system was to encourage greater involvement of both parents in children's lives following separation, provided that the children are protected from family violence, child abuse or neglect. It appears that equal care time is an uncommon, but nonetheless increasing, arrangement for children whose parents have separated. In all instances, due to biological necessity, a donor of either ova or semen must be used. Western Australia took a different approach from the other states by availing itself of the opportunity provided in the Family Law Act for the creation of a state family court exercising federal and state jurisdiction.8 Given that Western Australia has kept family law matters within the state, it provides, in some respects, a "control jurisdiction" for a consideration of some of the issues generated by the fragmentation between the state and federal spheres in the other states and territories. Time to leave substantiation behind: Findings from a national probability study. The grandchildren were comparatively young, with the majority being of primary school age or younger, and a further one-third of high school age. About two-thirds of those who had reached agreement at FDR between Waves 1 and 2 reported at the Wave 2 interview that parenting arrangements were still sorted out (this compares with three-quarters of parents at Wave 1), and about a quarter were still in the process of sorting things out (compared to a fifth at Wave 1). Rather, this characterisation highlights the child (whether sought for adoption or commissioned from a surrogate) as an object of exchange. The middle age group (55-64) often had to delay retirement, while the older grandparents might need to work longer or re-enter the workforce. His footnotes contain references to further research on confidentiality in the therapeutic context, all of which are broadly consistent with the Shuman and Weiner research. In doing so, the chapter will identify differences between the state and territory laws and will situate the laws as part of a system of responses to the whole spectrum of child abuse and neglect. Differential response is a pragmatic and sensible addition to child protection services, but it does not resolve the problem of a traditional residual response system that is unable to appropriately respond to the vast population of vulnerable children whose families require support rather than coercive court-ordered interventions to meet their children's needs. Division 12A of the Family Law Act excludes the operation of parts of the Evidence Act in "child-related proceedings", incorporating the intention that parenting proceedings be determined on a less adversarial basis. The Families Tribunal recommended by the Standing Committee on Family and Community Affairs was intended to be a tribunal that made administrative decisions in circumstances where parents agree they should have shared parental responsibility.

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