Family Breakdown and Child Welfare
Family dysfunction significantly affects individual family members, often causing psychological issues and 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 the 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. The Family Court of Australia has also introduced less adversarial processes in its Children's Cases Pilot Project. Less adversarial trials have now become an important part of its approach to resolving conflict 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 and 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. It examines the processes used by the legal actors ' judicial officers, lawyers and other justice system personnel ' and offers suggestions for reform based on findings from the behavioural sciences.
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Brown T, 'Project Magellan' Paper presented at the Child Sexual Abuse Justice Response or Alternative Resolution' conference, Adelaide 1-2 May 2003, http://www.aic.gov.au/events/aic%20upcoming%20events/2003/~/media/conferences/2003-abuse/brown.ashx.
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Rhoades H, 'The Family Court of Australia: Examining Australia's First Therapeutic Jurisdiction' (2010) 20 Journal of Judicial Administration 67