No simple solution when families meet the law

By Dr Renata Alexander, Senior Lecturer in Law, Monash University

This article was originally published in The Conversation on June 1, 2016 as part of the CHANGING FAMILIES  ten-part series where authors examine some major changes in family and relationships, and how that might in turn reshape law, policy and our idea of ourselves.

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Families going through breakdown need understanding, but so do lawmakers trying to find fair outcomes from complex laws.
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It has often been said that when Australia’s white Anglo-Saxon founding fathers drafted the Constitution in 1901, they could not have foreseen how family constellations would change over the next century and how family law would (or would not) keep abreast of those changes.

We now have many different types of families. We have families with and without children, single parents and blended or step families. We have heterosexual and same-sex de facto couples; separated, divorced and widowed couples. We also have families with children born through assisted reproductive technology or altruistically “acquired” through surrogacy, adoption or foster care.

All these are well depicted in popular culture including a plethora of television shows dating back to Batman and his ward Robin, and the ever-happy blended Brady Bunch through to the contemporary How I Met Your Mother and comic Modern Family.

The truth is, however, that the Old and New Testaments hold numerous examples of precursors to the traditional nuclear family of a father, mother and two children.

Adam and Eve had two sons and then one son killed his brother, transforming their dynamic to a one-child family. Moses was abandoned and raised by strangers. Rachel could not conceive and added a child to her family through a surrogate. Ruth and Naomi were both widowed and childless but made a life together. Jesus Christ was a product of an immaculate conception and brought up by foster parents.

Given these examples, it has taken millennia for the law to catch up.

The complex web of family law

In Australia’s family law system, each of these configurations is regulated by co-existing and sometimes conflicting legislation. The Family Law Act was only the second significant piece of family law legislation enacted since the Constitution that endowed the federal parliament with powers to legislate about divorce and matrimonial matters.

However, many family law areas come under both federal and state laws, or state laws alone.

A good example of the overlap is the area of child welfare and child protection. Australia’s family law courts (namely the Family Court and the Federal Circuit Court) are specialist federal courts. Their job is to determine with whom a child should live, how much time a child spends with the other parent, and other issues about the child’s long-term welfare.

But child protection and welfare cases are also heard in state courts under state laws involving state-mandated child protection agencies. So, one family can find itself embroiled at once in lengthy, expensive and emotionally taxing proceedings in different courts with different jurisdictions.

Each of these state and federal courts houses discrete hierarchies exercising different powers and applying different tests to determine the “best interests of the child”.

Judicial discretion is not unfettered and each piece of relevant legislation provides some guidance and predictability. But as former High Court justice Michael Kirby once opined, decision-making is:

… a complex function combining logic and emotion, rational application of intelligence and reason, intuitive responses to experience.

Not only are decision-makers influenced by their own views and experiences, they are informed and influenced by a burgeoning body of research in many fields of social and medical sciences. It is increasingly difficult to navigate through the vast oceans of research material available and to differentiate between “good” and “bad” research.

For example, in the early history of the Family Law Act in the 1970s, the Family Court often applied the “tender years” and “maternal preference” presumptions.

These deemed it preferable for young children up to the age of seven years to live with their mothers upon the break-up of the traditional heterosexual nuclear family. They were not prescribed by the statute itself, but rather a vestige of judicial attitudes that decided custody cases before the Family Law Act was introduced with its specialist Family Court.

Changing attitudes to family violence

Another example of the shift in judicial and community attitudes relates to the relevance of family violence in parenting cases. Historically, family law courts quarantined family violence as unrelated to parenting capacity and child welfare. A man could be “a violent husband but a good father”.

This attitude did not shift substantially until the 1990s, when both society and the courts started to recognise that witnessing family violence could cause long-term damage to children.

Another issue is whether our adversarial system of intra-family dispute resolution (another legacy of the Commonwealth) is suitable to multicultural Australia. Certainly alternative forms of dispute resolution, such as counselling and mediation, may assist. But, often, decisions supposedly reached by the disputing parties themselves are made after “bargaining in the shadow of the law” or in the shadow of gendered or culturally specific beliefs and practices.

Also, if a resolution is not reached or is not honoured and complied with, a decision needs to be made and imposed by a third party. Under our system, that third party is a judge, but the question again arises as to how judicial discretion is exercised.

Family law is a complex area without simple solutions. There are many participants and stakeholders, not least of whom are the adults and children involved.

We need to be sensitive to their needs and best interests. We also need to be respectful of those who are the decision-makers, while at the same time continuing to scrutinise and review the decision-making processes to ensure a just system.


The ConversationRead the other instalments in the Changing Families series here.

Renata Alexander, Senior Lecturer in Law, Monash University

This article was originally published on The Conversation. Read the original article.

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New Podcast: Interview Dr Ronli Sifris

The next podcast in the Scarlet Letter series from the Monash Feminists Legal Studies Group is now live on Soundcloud and iTunes.

This month, we feature feminist and health law academic Dr Ronli Sifris whose work discuses on women’s reproductive rights. In this interview, Ronli considers how her own family history has made her a feminist and discusses her work on abortion law reform, surrogacy regulation and the impact of safe access zone legislation.

Interviewers for this episode are Dr Azadeh Dastyari and Tamara Wilkinson.

Mia Freedman et al are wrong: being drunk doesn’t cause rape

by Dr Kate Seear, Senior Lecturer, Faculty of Law, Monash University

by Professor Suzanne Fraser, Professor and Project Leader, National Drug Research Institute, Curtin University

This article was originally published in The Conversation on 12 November, 2013.

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Media commentators have linked alcohol use with sexual assault.
FLICKR/Monkey Boy42

Controversy over rape, alcohol consumption, and responsibility reignited last month when US columnist Emily Yoffe penned an article provocatively titled College women: stop getting drunk. But the link between alcohol use and sexual assault is less certain than it may seem.

Yoffe argued that alcohol is often a “common denominator” in rape, quoting a 2009 US survey showing 20% of college women reported having been sexually assaulted since commencing their studies, and that 80% of these cases “involved” alcohol.

According to Yoffe, alcohol both enables sexual predators and renders women vulnerable to assault. She concluded that female college students should “start moderating their drinking”.

Despite some references to men, her focus was overwhelmingly on what women could do to avoid rape – ideas that were echoed by Australian columnist Mia Freedman.

The public response to both columns was swift and overwhelmingly critical.

Many feminists raised concerns that these messages appear to blame rape victims for attacks, which may cause further distress to women who often already blame themselves. The focus of the columns was unfairly and disproportionately on women’s actions, with too little attention paid to the actions of men.

What’s more, most rapes don’t occur in the circumstances these columnists describe – much higher rates of sexual assault occur at the hands of partners, family members, workmates, and friends.

Drugs, alcohol and crime

But Yoffe and Freedman’s assumptions about alcohol, and about cause and effect have been largely overlooked.

Two claims have been especially prominent. The first is that alcohol disorients women and makes them more vulnerable to attack. The second is that alcohol somehow makes men more impulsive and emboldens them to rape.

Such claims falter in the face of reality.

Recent research challenges the claim that alcohol and other drugs cause crime in the absence of other factors. We know most people drink alcohol (even in large volumes) but don’t perpetrate rape.

Although it’s common practice to ascribe a set of social problems or crimes to drug use, these effects are nowhere near as widely experienced as we assume.

Indeed, as sociologists of drugs and addiction already know, claims like these reveal less about drugs and more about our hopes and fears about individuals and societies.

While it might comfort us to think of rape and other violent crimes as the product of a single, controllable substance, it makes little sense to single alcohol out.

Rape is a complex phenomenon. Of course, it’s also a gendered one – men are overwhelmingly the main perpetrators and women the main victims. These factors demand a more careful and unflinching look at many issues implicated in rape, including gender discourses and practices.

There’s also a central paradox at the heart of both the columns that started this controversy.

Apparently, although alcohol has certain stable “effects”, these differ by gender. Alcohol renders women more passive and increases their physical vulnerability; it makes men more aggressive and physically powerful. These effects are compounded, Yoffe claims, by biological differences between the sexes.

Both these ideas are grounded in outdated, unproven ideas about gender differences. They reveal much about our historical cultural fantasies of heterosexual submission and domination.

Beyond simplistic approaches

We need to take care when making claims about the “causes” of rape. We also need to avoid simplistic claims about what drugs like alcohol do to people. While alcohol may sometimes be present in rape, there’s no simple, predictable, stable and consistent causal connection.

It’s essential that we face this uncomfortable reality when devising policy responses and educational strategies. If we don’t, policies and other measures for “addressing” the problem of rape may instead exacerbate it.

In particular, measures guided by simplistic assumptions may lead us to neglect other relevant issues, foster complacency, or encourage the belief that rape is a simple problem with simple solutions.

Most troublingly, we risk perpetuating a logic of rape as natural human behaviour. When alcohol “unleashes” men’s “natural” sexual aggression and magnifies women’s “natural” passivity, rape becomes a dynamic embedded in us all.

The ConversationIf we imagine that sexual violence is a part of our essential humanity, any attempt to eradicate it is unlikely to succeed.

Kate Seear, Research Fellow in the Social Studies of Addiction Concepts program at the National Drug Research Institute, Curtin University and Suzanne Fraser, Associate Professor, Curtin University

This article was originally published on The Conversation. Read the original article.

Lessons from the Chamberlain case: the human cost of wrongful conviction

by Dr Joanna Kyriakakis, Senior Lecturer in Law, Monash University

This article was originally published in The Conversation on 19 June 2012. The Azaria Chamberlain case involved the wrongful conviction and jailing of dead baby Azaria’s mother, Lindy Chamberlain for the murder in the Northern Territory of Australia in 1980. Hostile media commentary at the time focused on whether Lindy Chamberlain met gender stereotypes of how a grieving mother should behave. A feminist analysis of the media coverage has been written by Belinda Middleweek.

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The Azaria Chamberlain case is a reminder that the criminal justice system does get it wrong, with each error bearing its own human cost.

On Tuesday, the Northern Territory Coroner’s office concluded an inquest into the cause of death of baby Azaria Chamberlain near Uluru on the night of 17 August 1980. The finding: a dingo took the baby.

Despite the same determination in the original coronial inquest, Lindy Chamberlain-Creighton was tried and found guilty of the child’s murder in one of the most public criminal cases in Australian history. She was sentenced to life in prison and served nearly three years before new evidence and a Royal Commission Inquiry led to a pardon and reversal of her wrongful conviction.

The Chamberlain-Creighton conviction was based largely on the use of unreliable or improper forensic science during the trial. But the Chamberlain case is only one example of wrongful conviction following a flawed criminal trial. Many have been sent to jail or even executed on the basis of faulty evidence despite their innocence.

Innocence lost

The Innocence Project in the United States is dedicated to exonerating wrongfully convicted people through the use of modern DNA testing.

They report that in US history there have been 292 post-conviction DNA exonerations. From their experience, the seven most common causes of wrongful convictions are eyewitness misidentification, improper forensic science, false confessions, government misconduct, reliance on informants, and plain old bad lawyering – including defence counsel sleeping during trial.

Unreliable or improper forensic science was found to be present in 52% of the first 225 exoneration cases the Innocence Project have dealt with.

A lack of scientific standards for assessing the results of forensic testing methods was a key finding by Justice Morling in the Royal Commission Inquiry into the Chamberlain case. This unreliable evidence, along with unverified assumptions by experts, were presented as scientific evidence to the court.

Limited evidence

Despite advancements in forensic practice, modern concerns persist with respect to its use in criminal trials. For example, the term “the CSI effect” has been coined to describe the impact of television programs that depict a high level of sophistication in current forensic sciences. These shows foster unrealistic expectations among jurors as to the need for, and veracity of, forensic science in criminal trials.

Also with respect to jury trials, studies have shown that jurors can be prone to confusion as to legal directions and factual narratives, especially in cases involving complex evidence. They may also automatically defer to expert witnesses.

There is a large corpus of international human rights law directed at ensuring procedural fairness for defendants. These rights seek to balance the usually limited power of defendants relative to that of the state and to minimise the risks of injustice.

Key among these is Article 14 of the International Covenant on Civil and Political Rights (ICCPR) that ensures basic rights. These include the presumption of innocence, the right to silence, to be dealt with by an impartial tribunal, to be fully informed of charges and to participate fully in the examination of evidence.

Article 14 also confirms the right of all persons to appeal to a higher court and to compensation where new evidence leads to exoneration.

Deadly mistakes

But even with due process assurances, errors occur. In states retaining the death penalty such errors may result in the highest cost of all.

The Death Penalty Information Centre reports that in the United States 140 people have been released from death row since 1973 due to evidence of wrongful conviction. Some would say that this shows the criminal justice system working, as appeal processes have enabled the errors to be identified. To some extent this is true.

Sadly, however, there are cases where the error has not been uncovered in time or limitations in the system have worked against its recognition. For example, there is evidence to suggest that in 2004 Cameron Todd Willingham was wrongfully executed by the state of Texas. His murder convictions had been founded on discredited scientific theories as to how the fire that killed his children most likely occurred.

Earlier this year the Columbia Human Rights Law Review dedicated one of its editions to research detailing how Carlos DeLuna was executed in 1989 for a crime that he most likely did not commit.

Studies in the United States also suggest the race of a victim has a bearing on the likelihood of an imposition of the death penalty.

The death penalty and international law

International human rights law has yet to prohibit the use of capital punishment. Instead, Article 6 of the ICCPR limits its application to the most serious crimes and to defendants over 18 years of age.

Despite this, there is a global trend towards its abolition. This trend is supported by international instruments such as the 1989 Second Optional Protocol to the ICCPR which confirms that the abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights.

The Chamberlain case is a reminder that criminal justice systems are fallible. For the family in this case, the legal system has, as far as is possible, rectified the errors – the criminal conviction has been reversed, financial compensation awarded, and now the accurate recording of the cause of Azaria’s death.

The ConversationSome wrongs can be rectified. But as philospher John Stuart Mill acknowledged in his eloquent defence of the death penalty in 1868, there is one argument against the practice which “never can be entirely got rid of. .. [T]hat if by an error of justice an innocent person is put to death, the mistake can never be corrected”.

Joanna Kyriakakis, Lecturer in Law, Monash University

This article was originally published on The Conversation. Read the original article.