Legislative aspirations and social realities: Empirical reflections on Australia's 2006 family law reforms

Abstract

The Australian government has recently introduced a Bill into Parliament that is intended to improve the way concerns about family violence and child abuse are dealt with in the context of post-separation parenting disputes. The move follows recent reports examining the impact of significant reforms to the family law system introduced in 2006. Motivated by a desire to ensure that children maintain involvement with both parents after separation and to place greater emphasis on non-court-based dispute resolution mechanisms, the reforms encompassed legislative change and new and expanded relationship services. The empirical evidence base on the 2006 reforms has highlighted shortcomings in the existing responses to family violence and child abuse, with one large-scale study by the Australian Institute of Family Studies (AIFS) demonstrating that a history of family violence was as prevalent among shared care arrangements as other arrangements, contrary to the intention of the reforms. This article uses the empirical findings from the AIFS Evaluation to reflect on some key theoretical ideas about how law operates. The Evaluation findings highlighted the prevalence of a history of family violence among separated parents in Australia and provided evidence that this issue complicates the fulfilment of the reform objectives in a range of ways, most obviously in the context of applying appropriate dispute resolution processes and making parenting arrangements that safeguard the well-being of children.