Hostname: page-component-586b7cd67f-dsjbd Total loading time: 0 Render date: 2024-11-25T04:03:00.775Z Has data issue: false hasContentIssue false
  • English
  • Français

Family dispute resolution and access to justice in Australia

Published online by Cambridge University Press:  08 June 2020

Lola Akin Ojelabi  and
Judith Gutman
Lola Akin Ojelabi*
Affiliation:
Associate Professor, La Trobe Law School, La Trobe University
Judith Gutman
Affiliation:
Senior Lecturer, La Trobe Law School, La Trobe University
*
*Corresponding author. E-mail: [email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

The context of this paper is the several innovative reforms since the Australian government changed the family-law system more than forty years ago with the enactment of the Family Law Act 1975 (Cth). Whilst no-fault divorce was introduced over four decades ago, the watershed effect of replacing a blaming culture with a collaborative problem-solving approach to family disputing has provided a stepping stone for a progressive pathway to less adversarialism in family conflict. This narrative resonates throughout the family-law system today. It also continues to guide the justice discourse in family matters. This paper focuses on developments in the family-law system canvassing several legislative amendments that demonstrate the use of alternative dispute resolution (ADR) as a means of improving access to justice in relation to family disputes in Australia. It is argued that, in the family-law system, justice and ADR are inextricably linked. In support of this contention, the growth, development and evaluation of family dispute resolution is considered; access to justice issues that arise are highlighted. Finally, it reviews ramifications for the future considering recommendations from the recent inquiry into the family-law system.

Keywords

family dispute resolutionaccess to justicereformsfamily-law system
Type
Article
Information
International Journal of Law in Context , Volume 16 , Special Issue 2: Jurisdictional Perspectives on Alternative Dispute Resolution and Access to Justice , June 2020 , pp. 197 - 215
Copyright
Copyright © The Author(s), 2020. Published by Cambridge University Press

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Access to Justice Taskforce (2009) Framework for Access to Justice in the Federal Civil Justice System. Canberra: Attorney-General's Department, Australian Government.Google Scholar
Akin, Ojelabi L (2012) Mediation and justice: an Australian perspective using Rawls’ categories of procedural justice. Civil Justice Quarterly 2, 318–339.Google Scholar
Akin, Ojelabi L (2019) Voice as a justice factor in mediation. Civil Justice Quarterly 38, 459–477.Google Scholar
Akin, Ojelabi L and Noone, MA (2017) ADR processes: connections between purpose, values, ethics and justice. Law in Context 35, 5–23.Google Scholar
Alexander, R (1997) Family mediation – friend or foe for women? Australian Dispute Resolution Journal 8, 255–266.Google Scholar
Alexander, R (1999), Family mediation under the microscope. Australasian Dispute Resolution Journal 10, 18–29.Google Scholar
Alexander, R (2010) Moving forwards or back to the future? An analysis of case law on family violence under the Family Law Act 1975 (Cth). University of New South Wales Law Journal 33, 907–928.Google Scholar
Altobelli, T (2001) Reflections on primary dispute resolution. Bond Law Review 13, 391–412.Google Scholar
Armstrong, S (2001) ‘We told you so …’: women's legal groups and the Family Law Reform Act 1995. Australian Journal of Family Law 15, 1–26.Google Scholar
Astor, H (2010) Genuine effort in family dispute resolution. Family Matters 84, Australian Institute of Family Studies, Australian Government, Canberra.Google Scholar
Astor, H and Chinkin, C (2002) Dispute Resolution in Australia, 2nd edn. Chatswood, NSW: LexisNexis Butterworths.Google Scholar
Attorney-General's Department (2008) Family Dispute Resolution in Legal Aid Commissions: Evaluation Report. Canberra: Australian Government.Google Scholar
Australian Institute of Family Studies (AIFS) (2009) Evaluation of the 2006 Family Law Reforms. Canberra: Australian Government.Google Scholar
Australian Law Reform Commission (ALRC) (2000) Managing Justice: Review of the Federal Civil Justice Program. ALRC Report No. 89.Google Scholar
Australian Law Reform Commission (ALRC) (2010) Family Violence: A National Response – Final Report. ALRC Report 114. Sydney: Australian Law Reform Commission.Google Scholar
Australian Law Reform Commission (ALRC) (2019) Family Law for the Future: An Inquiry into the Family Law System. ALRC Report 135. Brisbane: Australian Law Reform Commission.Google Scholar
Bagshaw, D et al. (2010) Family Violence and Family Law in Australia: The Experiences and Views of Children and Adults from Families Who Separated Post-1995 and Post-2006, Vol 1. Canberra: Monash University, University of South Australia and James Cook University for the Attorney-General's Department, Australian Government.Google Scholar
Balvin, B et al. (2010), Evaluation of the Family Relationship Centre Broadmeadows. Victoria: La Trobe University.Google Scholar
Batagol, B and Brown, T (2011) Bargaining in the Shadow of the Law: The Case of Family Mediation. Alexandria, NSW: The Federation Press.Google Scholar
Blader, SL and Tyler, TR (2015) Relational models of procedural justice. In Cropanzano RS and Ambrose ML (eds), The Oxford Handbook of Justice in the Workplace. Available at http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199981410.001.0001/oxfordhb-9780199981410-e-16 (accessed 23 April 2020).Google Scholar
Boulle, L and Field, R (2017), Australian Dispute Resolution Law and Practice. Chatswood, NSW: Lexis Nexis.Google Scholar
Campbell, J (2019) Will de-federation of the Family Court fix fragmentation of family law? An analysis of the ALRC's final report on family law. Forte Family Lawyers. Available at https://fortefamilylawyers.com.au/publication/overview-of-changes-in-the-law/will-de-federation-of-the-family-court-fix-fragmentation-of-family-law-an-analysis-of-the-alrcs-final-report-on-family-law/ (accessed 7 May 2020).Google Scholar
Chisholm, R (2009) Family Courts Violence Review: A Report. Canberra: Attorney-General's Department, Australian Government.Google Scholar
Cohen, RL (1986) Justice: Views from the Social Sciences. New York: Springer Science + Business Media.CrossRefGoogle Scholar
Commonwealth (1959) Parliamentary Debates, 12 November, House of Representatives.Google Scholar
Commonwealth (1973) Parliamentary Debates, 13 December, Senate.Google Scholar
Commonwealth (1994) Family Law Reform Bill Explanatory Memorandum. Canberra: Australian Parliament.Google Scholar
Commonwealth (2005) Family Law Amendment (Shared Parental Responsibility) Bill Explanatory Memorandum. Canberra: Australian Parliament.Google Scholar
Commonwealth Senate (2006) Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum. Canberra: Australian Parliament.Google Scholar
Commonwealth Senate (2018) Federal Circuit and Family Court of Australia Bill Revised Explanatory Memorandum. Canberra: Australian Parliament.Google Scholar
Cooper, D and Field, R (2008) The family dispute resolution of parenting matters in Australia: an analysis of the notion of an ‘independent’ practitioner. QUT Law and Justice Journal 8, 158–175.Google Scholar
Dewar, J (2010) Can the centre hold? Reflections on two decades of family law reform in Australia. Australian Journal of Family Law 24, 139–149.Google Scholar
Dewar, J and Parker, S (1999) Parenting, Planning and Partnership: A Study of the Impact of the Family Law Reform Act 1995. Family Law Research Unit Working Paper No 3. Griffith University, Australia.Google Scholar
Enderby, the Hon. K (1975) The Family Law Act: background to the legislation. University of New South Wales Law Journal 1, 10–30.Google Scholar
Family Law Council (2006) Collaborative Practice in Family Law: A Report to the Attorney-General. Canberra: Commonwealth of Australia.Google Scholar
Family Law Council (2012) Improving the Family Law System for Clients from Culturally and Linguistically Diverse Backgrounds. Canberra: Attorney-General's Department, Australian Government.Google Scholar
Fehlberg, B et al. (2014) Australian Family Law: The Contemporary Context. Sydney: Oxford University Press.Google Scholar
Felstiner, W, Abel, R and Sarat, A (1980–1981) The emergence and transformation of disputes: naming, blaming, claiming. Law and Society Review 15, 631–654.CrossRefGoogle Scholar
Field, R (2016) Comment: a call for a safe model of family mediation. Bond Law Review 28, 83–88.Google Scholar
Field, R and Crowe, J (2017) Playing the language game of family mediation: implications for mediator ethics. Law in Context 35, 84–100.Google Scholar
Field, R and Lynch, A (2014) Hearing parties’ voices in coordinated family dispute resolution CFDR: an Australian pilot of a family mediation model designed for matters involving a history of domestic violence. Journal of Social Welfare and Family Law 36, 392–402.CrossRefGoogle Scholar
Giddings, J and Robertson, M (2001) Informed litigants with nowhere to go – self-help legal aid services in Australia. Alternative Law Journal 26, 184–190.CrossRefGoogle Scholar
Gutman, J and Grant, J (2017) Ethical conundrums facing mediators: comparing processes, identifying challenges and opportunities. Law in Context 35, 101–117.Google Scholar
Harrison, M (2007) Finding a Better Way: A Bold Departure from the Traditional Common Law Approach to the Conduct of Legal Proceedings. Canberra: Family Court of Australia.Google Scholar
House of Representatives Standing Committee on Legal and Constitutional Affairs (1998) Inquiry into Aspects of Family Services. Canberra: Australian Parliament.Google Scholar
Hunter, R (2003) Adversarial mythologies: policy assumptions and research evidence in family law. Journal of Law and Society 30, 156–176.CrossRefGoogle Scholar
Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act (1992) The Family Law Act 1975: Aspects of Its Operation and Interpretation. Canberra: Australian Parliament.Google Scholar
Kaspiew, R et al. (2012) Evaluation of a Pilot of Legally Assisted and Supported Family Dispute Resolution in Family Violence Cases: Final Report. Canberra: Australian Institute of Family Studies, Australian Government.CrossRefGoogle Scholar
Katzen, H and Douglas, R (1999), Administrative Law. Sydney: Butterworths.Google Scholar
King, M et al. (2014) Non-Adversarial Justice, 2nd edn. Alexandria, NSW: The Federation Press.Google Scholar
Mediator Standards Board (2015) National Mediator Accreditation Standards Practice Standards. Mediator Standards Board, Australia. Available at https://msb.org.au/themes/msb/assets/documents/national-mediator-accreditation-system.pdf (accessed 4 May 2020).Google Scholar
Meyerson, D and Mackenzie, C (2018) Procedural justice and the law. Philosophy Compass 13, 1–11.CrossRefGoogle Scholar
Miller, D (1999) Principles of Social Justice. Cambridge, MA: Harvard University Press.Google Scholar
Moloney, L (2014) Lionel Murphy and the dignified divorce: of dreams and data. In Hayes, A and Higgins, D (eds), Families, Policy and the Law: Selected Essays on Contemporary Issues for Australia. Melbourne: Australian Institute of Family Studies, pp. 245–257.Google Scholar
Neilsen, MA (2010–2011) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011. Bills Digest No. 126. Canberra: Department of Parliamentary Services, Australian Parliament.Google Scholar
Parkinson, P (2015) Australian Family Law in Context: Commentary and Materials, 6th edn. Pyrmont, NSW: Thomson Reuters Lawbook Co.Google Scholar
Rawls, J (1999) A Theory of Justice. Cambridge, MA: The Belknap Press of Harvard University Press.Google Scholar
Rhoades, H (2018) Review of the Family Law System: Issues and Opportunities. Presentation to the Australian Institute of Family Studies Conference Commonwealth of Australia. Available at https://www.alrc.gov.au/sites/default/files/aifs_2018_presentation_27_july.pdf (accessed 21 January 2019).Google Scholar
Rhoades, H, Graycar, R and Harrison, M (1999) The Family Law Reform Act 1995: Can Changing Legislation Change Legal Culture, Legal Practice and Community Expectations? Interim Report. Sydney, NSW: University of Sydney and Family Court of Australia.Google Scholar
Rhoades, H, Graycar, R and Harrison, M (2000) The Family Law Reform Act: The First Three Years. Sydney, NSW: University of Sydney and Family Court of Australia.Google Scholar
Senate Standing Committee on Constitutional and Legal Affairs (1974) Report on the Law and Administration of Divorce and Related Matters and the Family Law Bill 1974. Canberra: Australian Parliament.Google Scholar
Sourdin, T (2012) Good faith, bad faith? Making an effort in dispute resolution. DICTUM: Victoria Law School Journal 2, 19–29.Google Scholar
Swain, S (2012) Born in Hope: The Early Years of the Family Court of Australia. Sydney: New South Publishing, University of New South Wales Press.Google Scholar
Winspear, S (2018) Collaborate don't litigate. Law Institute Journal, 41–43.Google Scholar
Young, I et al. (2016) Family Law in Australia. Chatswood, NSW: LexisNexis Butterworths.Google Scholar