Family Breakdown and Child Welfare
Family dysfunction significantly affects individual family members, often causing psychological issues, relationship and financial problems and conflict concerning the care of and contact with their children. The law has traditionally assigned legal problems arising from family conflict into traditional categories of family, civil or criminal law and determined that they be resolved in courts having jurisdiction in that area. Often this means that one family may find themselves in a family court in relation to financial, child residence and contact issues and a civil or criminal court in relation to restraining orders or apprehended violence orders. Some family problems ' eg, disputes over a Will ' may be dealt with in civil.
The legal resolution of family conflict or issues to do with child welfare due to inadequate parenting have been in the adversarial context of litigation. However, both the legal and wider communities are increasingly aware that an adversarial approach to resolving family conflict can often aggravate rather than entirely resolving that conflict thereby perpetuating the family's legal problems. Thus, family law has been the subject of significant reform in Australia since 1975, with a move towards less adversarial and more conciliatory methods of resolving conflict arising from relationship breakdown of married or de facto couples.
The Family Court of Australia and the Family Court of Western Australia have used a more therapeutic approach to resolving child issue cases particularly issues such as child abuse or violence in their Magellan and Columbus Projects respectively. Since the introduction of less adversarial processes into the Federal Circuit and Family Court of Australia from the Children’s Cases Pilot project in 2006, less adversarial trials have become an integral approach to resolving conflicts concerning child issues. Family lawyers have begun to explore the potential of more therapeutic approaches to their practice such as collaborative law. Supreme Courts are using mediation processes in relation to family disputes concerning Wills.
There has also been a small pilot project in Geraldton, Western Australia, influenced by US family drug courts, that has taken a therapeutic, problem-solving court style approach to care and protection applications.
Therapeutic jurisprudence in this area studies the impact of court and other legal processes on the wellbeing of family members and the family unit. It considers whether there are more therapeutic options consistent with other justice system values that must be considered in resolving family law and child welfare problems. This section examines the processes used by judicial officers, lawyers and other justice system personnel and offers suggestions for reform based on findings from the behavioural sciences.
Batagol B, ‘Fomenters of Strife, Gladiatorial Champions or Something Else Entirely? Lawyers and Family Dispute Resolution’ (2008) 8(1) Queensland University Journal of Law and Justice 24. https://lr.law.qut.edu.au/article/view/61/59
Brown T, 'Project Magellan' Paper presented at the Child Sexual Abuse Justice Response or Alternative Resolution' conference, Adelaide 1-2 May 2003. http://adamoh.org/TreeOfLife.lan.io/SDAcomms/brown%20-%20Project%20Magellan.pdf
Bryant D and Faulks J, 'The "Helping Court" Comes Full Circle: The Application and use of Therapeutic Jurisprudence in the Family Court of Australia' (2007) 17 Journal of Judicial Administration 93.
Family Court of Australia, Less Adversarial Trial Handbook (2009).
Freckelton I, 'Migration Law, the Family Court and Therapeutic Jurisprudence' (2003) 11 Journal of Law and Medicine 133.
Hannam H, 'Problem Solving Courts and Therapeutic Jurisprudence in the Children's Jurisdiction' Paper presented at the 'Children and the Courts' conference, National Judicial College of Australia, 5 November 2005.
Harrison M, 'Finding a Better Way: A Bold Departure from the Traditional Common Law Approach to the Conduct of Legal Proceedings' (Family Court of Australia, 2007)
Kerin P and Murphy P 'Overview of an Emerging Model of an Integrated Family Court System' Paper presented at the Eighth Australian Institute of Family Studies Conference, Melbourne, 12–14 February 2003.
King MS and Tatasciore CL (Lou), 'Promoting Healing in the Family: Taking a Therapeutic Jurisprudence Based Approach in Care and Protection Applications' (2006) 1 eLaw Journal (special series) 78.
McIntosh J, 'The Children's Cases Pilot Project: An Exploratory Study of Impacts on Parenting Capacity and Child Wellbeing' (Family Transitions, 2006).
Murphy P and Pike L, 'The Columbus Pilot in the Family Court of Western Australia: Some Early Finding from the Evaluation' Paper presented to the Eighth Australian Institute of Family Studies Conference, Melbourne 12-14 February 2003.
Murray G and Cranwell G, “Therapeutic jurisprudence in child protection matters” (2022) 104 AIAL Forum 95
Pike LT and Murphy PT, 'The Columbus Project in the Family Court of Western Australia' (2006) 44 Family Court Review 270.
Rhoades H, 'The Family Court of Australia: Examining Australia's First Therapeutic Jurisdiction' (2010) 20 Journal of Judicial Administration 67