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Week 8 Lec Forensic Psych & Family Law
Terms in this set (21)
- Area of law that deals with family matters & relationships
It includes laws to do with: • Marriage, civil unions, defacto relationships, Surrogacy, Family violence, Termination of relationships & ancillary matters including divorce, property settlement, parenting arrangements, Child abduction & Paternity testing
History: Pre 1975 Divorce/Separation
Fault-based: adultery, desertion, cruelty, habitual drunkenness, imprisonment, insanity,
attempted murder of spouse, persistent refusal to consummate marriage, sodomy (homosexual relationships)
History Pre: 1975 Custody of Children
Decisions for children were grounded in notions around "tender years", maternal
attachments to mothers and her supposed/ believed superior capacity to meet a
1975/76:Family Law Act &
• Since 1976 - 69 amendments.
• Terms used: custody, access, guardianship,
• Decisions for children - gender neutral, best interest of the children. CROC also informed
way in which children were treated.
• Under the Act, parents do not have rights to their children, they have duties & responsibilities - "parental responsibilities".
Change of terminology was designed to promote an attitudinal change. Now refer to residence, contact and specific issues. Parenting plans introduced.
• 2000:Federal Magistrates Court - dealt with less complex matters (in-house Family Consultants and Reg 7 consultants).
• Issues related to self-represented litigants.
• Issues of adversarial system
- Family Law: Mother vs Father
- Cases where serious allegations are raised about sexual or physical abuse of children
The Magellan case:
Management pathway consists of a team of Judges, Registrars and
Mediators ('Family Consultants') who handle the case from start to finish. Independent
Children's Lawyers (ICLs) represent the interests of children. Significant resources (i.e., uncapped legal aid; focused report from CP Department; family report; other expert reports) are directed to the case in the early stages with an aim of resolving the case
within six months.
2003 - Child Custody Arrangements in the Event of Family
- Inquiry leading to the 'Every Picture Tells a Story' report
- In 2006- Informed current legislation - Shared Parental Responsibility Bill
- Introduced a rebuttable presumption at the outset of shared
parental responsibility. NOT (necessarily) equal time.
- Caused a change in terms
Change of Terms
• Court Counsellor > Family Consultant
• Marriage Counselling > Family Counselling
• Contact > the time a child spends with or communicates with another person
• Residence > the person with whom a child is to live
• Child Representative > Independent Children's Lawyer
A rebuttable presumption at the outset of shared
- Parental responsibility is to do with decisions regarding the child's welfare such as schooling, medical/ dental, religious- baptism
- Both parents have an equal say in these matters
- If one of the parents don't believe it should be equal, they can rebutt and show evidence in court for why this is the case
How does this affect human service workers, social workers, psychologists, family therapists?
When the Bill was implemented:
• Federal Government committed $400m to the
establishment of 65 Family Relationship Centres (FRC).
• Except in special circumstances, parties will be required to
participate in family dispute resolution prior to Court appearance.
(After 2006, if you wanted to have arrangements for your kids formalised, you had to go to an FRC first, unless mental or physical illnesses that prevents you from going)
• Presumption - at the outset - of shared parental responsibility/ roles/ decision-making
• Must be an accredited FDRP in order to issue section 60I certificates.
Evaluation of FRCs (Moloney, 2013)
• FDR (family dispute resolution) is the FRC's main mode of direct service delivery.
• Most clients who attend FDR reach agreement about their parenting
arrangements either at FDR or subsequent to attending FDR.
• Agreements reached at FDR tend to hold up in the medium term.
• Dysfunctional behaviours such as family violence reduce the chances of agreements being reached during or subsequent to FDR.
• Increased time with fathers is more likely to be negotiated at FDR than increased time with mothers.
• Majority of parents, in order of strength of endorsement, believe that at FDR, the child(ren)'s needs were taken into account; the parenting agreement
worked for the child(ren); and the parenting agreement worked for them.
• Fathers more likely to endorse these positive responses than mothers
When FDR is unsuccessful:
Best interest factors
- Two tier approach
• Primary considerations (about having a meaningful relationship & protecting child from harm)
• Additional considerations (including willingness and ability of the parents to facilitate and encourage a close
and continuing relationship between the child and other parent).
A professional appraisal of the family from a non-legal, non-partisan perspective, independent of the case presented by either party to a dispute. This comprehensive
and impartial social science perspective is otherwise not available to the Court, and has a functional value of
contributing to informed and child-centred judicial
When Family Reports are Ordered the Following Should be Considered:
• The maturity of the child
• The nature of any disputes regarding the parent/child relationship
• CAR- children at risk
• A report is the best method of obtaining desired outcome
What do Family Reports tell the Court?
• Demographics (difficult matters- relocation)
• Personal history - schooling, relationships, genogram
• Past relationships
• Current arrangements - living, legal, personal
• Individual culture - ethnicity, beliefs
• Physical, emotional, mental health (meds)
• Drug and alcohol use
• Criminal record
• DOCS involvement
• Conflict resolution style
• "time over"
• Optimal parental qualities
• Why here, why now, how come
• Preferences - explain how these are child focused
• CURRENT THINKING IS "JUST TELL ME WHAT TO DO!!"
• What the child likes/dislikes
• Any preferences?
Why Do This Work- Family Law: Psychologists Need Expertise In:
• Forensic assessment of families,
• Detailed knowledge of child development,
• Particular skills in placing information in context,
• Knowledge of family law, and some understanding of the broader legal context.
• Our client is the Court rather than and individual, family or child
The challenges - The People
• Plain language explanations are often made to little avail.
When cautioned that the report writing process is not confidential, a parent will still disclose something and say:
"but don't put that in the report".
• If you get to this "pointy end", you are special; someone who is prepared to fight to the death for what is often a pyrrhic victory (victory with any costs, prepared to fight till the end) and who resists more conciliatory approaches.
• Separation psychosis - is very real with this population - irrational, amoral. Find it difficult to recognise or own poor
behaviour. (EG, after divorce- man tried committing suicide 3 times)
• The single expert is an easy target that enables avoidance of self reflection and responsibility.
The challenges - The System
• The adversarial nature of family law in Australia is an anathema to the way in which most psychologists see
themselves and the work they undertake.
• Exposes psychologists and their work to intensive criticism.
Parties will critique and criticise family report to further their agenda. The report and psychologist come under critical
scrutiny and frequently cross-examination in a very formal process within court. At cross-examination litigants are
afforded considerable due process - at the expense of the expert's feelings/sensitivities.
• Outside of the court, psychologists are "used" to gain advantage or increased leverage.
Results of the People and the System
• Psychologists working in the family law area are reported to registration boards more frequently than any of their colleagues in other branches of psychology.
• The families referred for a family report usually reflect the most
embedded, conflict ridden and litigious group.
• Complaint boards are unfamiliar with broader context - compromised ability to appropriately deal with complaint.
• Safety issues: anecdotally the reports of threats of violence,
physical and verbal intimidation, property damage and harassment of psychologists have, unfortunately, become
expected consequences of this work.
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