International journal for crime, justice and social democracy, Jul 1, 2024
In 2007, Evan Stark consolidated decades of feminist scholarship and advocacy on intimate partner... more In 2007, Evan Stark consolidated decades of feminist scholarship and advocacy on intimate partner violence (IPV) into a framework he coined “coercive control” (Stark 2007). Stark’s model was initially heteronormative. He later contended that heteropatriarchy may condition abuse in women’s intimate relationships with other women, but more research was needed to clearly understand how coercive control manifests beyond heterosexuality (Stark and Hester 2019). In this paper, we utilise the voices of 18 Australian same-gender attracted women who experienced IPV in intimate relationships with other women. The participants’ narratives, revealed through this qualitative method, provide insights into perpetrator tactics of coercive control in these relationships. Situating these stratagems within Stark’s framework, we gain a deeper understanding of this, often invisible, manifestation of coercive control. This study is essential and timely because, since Stark (2007) published his book, several countries have criminalised coercive control and some states in Australia have recently followed suit.
At the time of submission of this article the authors wait in anticipation to see when and how th... more At the time of submission of this article the authors wait in anticipation to see when and how the newly re-elected Queensland Labor government fulfils its promise to introduce legislation to recognise Torres Strait Islander traditional adoption.1 This article examines how the failure of successive governments to act on this issue has led to Torres Strait Islander peoples not having their practises recognised. This has happened while governments have developed detailed legislative schemes for the legal transfer of children for Queenslanders who have chosen to adopt in the Western manner or to engage in an altruistic surrogacy arrangement. The exclusion from legal recognition is a form of discrimination that has led to disadvantage and legal complications for families where traditional adoption has occurred. The article describes Torres Strait adoption, considers the unacceptable policy positions revealed by its absence from adoption and surrogacy laws and its presence in child protection legislation. It also reviews a Queensland succession case and a number of family law decisions where the Family Court of Australia has grappled with the legislative void in Queensland. Finally, it considers some of the matters that will have to be addressed in reform. This article demonstrates the importance of government action on this issue and contributes to the conversation about recognition and acknowledgement of the Indigenous peoples of Australia at a time of change.
The article addresses the proclivity of family law judges in Australia for using social science r... more The article addresses the proclivity of family law judges in Australia for using social science research material at the point of decision-making and argues there is a lack of clarity about the legal basis on which this occurs. It analyses the relevant rules of evidence regarding the reception of extrinsic materials and demonstrates the difficulties associated with the use of those rules in the case of social science research. It then examines a range of cases from the first year of operation of the Family Court of Australia until the present day, to trace judicial use of social science literature and demonstrate the confusion surrounding the legal basis for its use. The article argues that the necessarily selective use of social science literature in these cases reveals the possible risks of judicial referencing of specific research in this complex and contested field of scholarship and practice. Finally the article considers the Family Violence Best Practice Principles 'for use in parenting disputes when family violence or abuse is alleged' and argues that these do not resolve the jurisprudential problems. The article touches briefly on some possible procedures and approaches that could be considered to deal with some of the identified concerns and concludes that, to continue the productive partnership between family law and social science, this area of law and legal practice is in need of urgent review and reform.
The author team wish to thank the two anonymous peer reviewers for their helpful and insightful s... more The author team wish to thank the two anonymous peer reviewers for their helpful and insightful suggestions for improving the article. The authors also thank David Hugall for his helpful comments and assistance during the course of this project.
For the Women's Legal Service, Brisbane 1 ANGELA LYNCH, ZOE RATHUS & RACHAEL FIELD (1999) 'commun... more For the Women's Legal Service, Brisbane 1 ANGELA LYNCH, ZOE RATHUS & RACHAEL FIELD (1999) 'community of property' system where on the breakdown of a marriage each party gets 50% of the communal property. The discussion paper shows that, in developing these reforms, the policy makers do not appear to have learnt from recent experience in relation to the Family Law Reform Act 1995 (Cth). 3 That is, they have ignored the expertise of women's groups, their ideas, issues and concerns. As a result the proposed 'reforms' amount to unjust and inappropriate changes to the law. And they have not developed a clear 'rationale' for the 'reforms'. As the Chief Justice of the Family Court has put it, they have not made it clear "... what it is that needs to be reformed and why such reform is necessary." If either of the suggested amendments were implemented, they would have a disastrous impact on the economic and social position of women and children in Australia. We have no doubt they would lead to an increase in women and children living in poverty in Australia; an increase in women's reliance on social security and government support, and for longer periods; an increase in litigation (especially at the appellate level); and increased reliance on solicitors. Fortunately, it would appear that at this stage the government is holding back on developing either option fully. In a speech by the Hon Daryl Williams AM QC MP delivered on Wednesday 27 October 1999 to the National Press Club he said that: "... neither option in the discussion paper received significant support. The submissions overwhelmingly supported the retention of the status quo, with some minor modifications, rather than complete replacement of the existing regime." 5 The Women's Legal Service, Brisbane (WLS) is of the opinion that reform to the property sections of the Family Law Act is probably justified. However, reform must be careful and considered and not reactionary. When the government does decide to 3
The article addresses the proclivity of family law judges in Australia for using social science r... more The article addresses the proclivity of family law judges in Australia for using social science research material at the point of decision-making and argues there is a lack of clarity about the legal basis on which this occurs. It analyses the relevant rules of evidence regarding the reception of extrinsic materials and demonstrates the difficulties associated with the use of those rules in the case of social science research. It then examines a range of cases from the first year of operation of the Family Court of Australia until the present day, to trace judicial use of social science literature and demonstrate the confusion surrounding the legal basis for its use. The article argues that the necessarily selective use of social science literature in these cases reveals the possible risks of judicial referencing of specific research in this complex and contested field of scholarship and practice. Finally the article considers the Family Violence Best Practice Principles 'for us...
This article argues that the new family laws in Australia have created a tension between the good... more This article argues that the new family laws in Australia have created a tension between the good pre-separation mother citizen and the good post-separation mother citizen. With the emphasis on shared parenting, post-separation mothers must now sacrifice time with their children in favour of the fathers. This tends to obscure the past care work of mothers and to valorise fathers. Using a linguistic ploy, I reveal the identities and lived realities of the citizens of the modern family by examining their ʻhoodsʼ (their passive state or condition) and their ʻshipsʼ (their more active duties and tasks). These include their motherhood and fatherhood, their mothership and ʻfathershipʼ. The introduction of Family Law Act 1975 (Cth) heralded a more contemporary family law in Australia, and seemed to recognise some aspects of mothersʼ citizenship by valuing ʻwifeshipʼ and ʻmothershipʼ. However, this was followed by the rise of fathersʼ rights groups and a number of transformations of parenting laws, with the most recent significant reforms occurring in 2006. After analysing two recent relocation cases, I argue that current parenting laws tend to ignore the complex realities of mothersʼ lives. I suggest that the concept of parental ʻinvestmentʼ, relational theories and the theory of intimate citizenship may provide useful frameworks for reconceptualising some factors relevant to parenting decisions. 'The time has come,' the Walrus said, 'To talk of many things: Of shoes and ships and sealing-wax, Of cabbages and kings, And why the sea is boiling hot, And whether pigs have wings.' 1 *
These tales are true, And can be sad. FIXTURES in our mind, assuming all bad. There's more to the... more These tales are true, And can be sad. FIXTURES in our mind, assuming all bad. There's more to their stories, Than what I can share. But they will remind us Why we choose to care. AUTHOR'S NOTE: Patients suffering from opioid use disorder have unique stories. Primary care providers are in a special position to positively change the lives of patients and families in recovery, and to find joy and meaning in practice.
Just over a month after the Australia 2020 SUII/mit an extraordinary 'first' was reported in the ... more Just over a month after the Australia 2020 SUII/mit an extraordinary 'first' was reported in the Australian media. Two Australian women, Cheryl and Nikki Bart, became the first mother and daughter team to scale the summit of Mt Everest, having climbed the tallest peak on every other continent.' Well, I thought, from my vantage point of a month's contemplation since the excitement of being a summiteer: 'That's one way of getting women on to a summitl' The media interest in the Bart story suggests at least two things; women can do anything, as we have been saying for years, but we are still doing 'firsts' because women still experience many barriers as they try to do everything. And while Cheryl and Nikki were toiling up that awesome mountain, 1,000 people met in Canberra at that other Summit 'to explore the challenges facing Australia over the next decade and beyond'.2 Part of the purpose of this article is to provide a narrative-a personal story of attending and participating in the Summit. However, another purpose is to explore the way in which women were included in and excluded from the processes, content and discussions of that event, in the hope that the analysis may assist in formulating ways to enhance effective strategic thinking, policy development and service delivery which specifically addresses the needs of and opportunities for women in Australia over the next decade and beyond. Zoe Rathus is a senior lecturer at the Griffith Law School and a member of the Socio-Iegal Research Centre. She is the Director of the Clinical Program and lectures in family law and legal professional responsibility. Before entering academia she was the coordinator of the Women's Legal Service in Brisbane from 1989 to 2004. Zoe thanks Griffith University for its support of her attendance at the Summit and her colleagues in the Law School, other academic colleagues and her former colleagues in the community sector for their ideas, encouragement and generous responses to her selection and ideas gathering. Z.
At the time of submission of this article the authors wait in anticipation to see when and how th... more At the time of submission of this article the authors wait in anticipation to see when and how the newly re-elected Queensland Labor government fulfils its promise to introduce legislation to recognise Torres Strait Islander traditional adoption.1 This article examines how the failure of successive governments to act on this issue has led to Torres Strait Islander peoples not having their practises recognised. This has happened while governments have developed detailed legislative schemes for the legal transfer of children for Queenslanders who have chosen to adopt in the Western manner or to engage in an altruistic surrogacy arrangement. The exclusion from legal recognition is a form of discrimination that has led to disadvantage and legal complications for families where traditional adoption has occurred. The article describes Torres Strait adoption, considers the unacceptable policy positions revealed by its absence from adoption and surrogacy laws and its presence in child prote...
Family Law Principles is different from other family law texts written in Australia because it co... more Family Law Principles is different from other family law texts written in Australia because it covers areas that are important in practice, such as family reports, how courts consider social science research, and also emerging areas in family law. This second edition deals not only with the family law system but includes a detailed explanation of the family dispute resolution system and legislative obligations of both lawyers and family dispute resolution practitioners. It contains a comprehensive analysis of confidentiality and admissibility in family dispute resolution and counselling and recent case law in this area.
Family reports are critical documents in family parenting cases. They are often the only social s... more Family reports are critical documents in family parenting cases. They are often the only social science information available to the judge, the lawyers and the parties. They are influential in judicial decision-making and out-of-court negotiations. Despite their importance there has been little direct research about the quality and impact of family reports in Australia. It is also known that family violence is a common occurrence in parenting cases that progress to litigation, and therefore the kinds of cases in which family reports are ordered, but again this is an under-researched issue. This article presents foundational information about the existing research to identify what is known about family reports and family violence. It examines the legislative framework for family report writing and analyses the official guidelines and documents and informal information that provide context to this work. It considers what family report writers need to know and understand about family v...
This article explores the complex relationship between social science and the law through the len... more This article explores the complex relationship between social science and the law through the lens of the 2011 amendments to the Family Law Act 1975 (Cth) ('FLA'), particularly the definition of 'family violence' which was introduced. There was no definition of family violence in the FLA until 1996, despite a growing public discourse regarding the issue in Australia during the 1980s, and the introduction of domestic violence protection order legislation in every state and territory over that decade. The definition that became operative in 1996 was subsequently amended in 2006 when major parenting reforms were introduced, and in 2011 it was entirely re-fashioned. The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) ('Amendment Act') (which did not become operational until June 2012) was the first time family violence was the central subject of reform of the FLA. The aim of the federal government was to improve the family law...
International journal for crime, justice and social democracy, Jul 1, 2024
In 2007, Evan Stark consolidated decades of feminist scholarship and advocacy on intimate partner... more In 2007, Evan Stark consolidated decades of feminist scholarship and advocacy on intimate partner violence (IPV) into a framework he coined “coercive control” (Stark 2007). Stark’s model was initially heteronormative. He later contended that heteropatriarchy may condition abuse in women’s intimate relationships with other women, but more research was needed to clearly understand how coercive control manifests beyond heterosexuality (Stark and Hester 2019). In this paper, we utilise the voices of 18 Australian same-gender attracted women who experienced IPV in intimate relationships with other women. The participants’ narratives, revealed through this qualitative method, provide insights into perpetrator tactics of coercive control in these relationships. Situating these stratagems within Stark’s framework, we gain a deeper understanding of this, often invisible, manifestation of coercive control. This study is essential and timely because, since Stark (2007) published his book, several countries have criminalised coercive control and some states in Australia have recently followed suit.
At the time of submission of this article the authors wait in anticipation to see when and how th... more At the time of submission of this article the authors wait in anticipation to see when and how the newly re-elected Queensland Labor government fulfils its promise to introduce legislation to recognise Torres Strait Islander traditional adoption.1 This article examines how the failure of successive governments to act on this issue has led to Torres Strait Islander peoples not having their practises recognised. This has happened while governments have developed detailed legislative schemes for the legal transfer of children for Queenslanders who have chosen to adopt in the Western manner or to engage in an altruistic surrogacy arrangement. The exclusion from legal recognition is a form of discrimination that has led to disadvantage and legal complications for families where traditional adoption has occurred. The article describes Torres Strait adoption, considers the unacceptable policy positions revealed by its absence from adoption and surrogacy laws and its presence in child protection legislation. It also reviews a Queensland succession case and a number of family law decisions where the Family Court of Australia has grappled with the legislative void in Queensland. Finally, it considers some of the matters that will have to be addressed in reform. This article demonstrates the importance of government action on this issue and contributes to the conversation about recognition and acknowledgement of the Indigenous peoples of Australia at a time of change.
The article addresses the proclivity of family law judges in Australia for using social science r... more The article addresses the proclivity of family law judges in Australia for using social science research material at the point of decision-making and argues there is a lack of clarity about the legal basis on which this occurs. It analyses the relevant rules of evidence regarding the reception of extrinsic materials and demonstrates the difficulties associated with the use of those rules in the case of social science research. It then examines a range of cases from the first year of operation of the Family Court of Australia until the present day, to trace judicial use of social science literature and demonstrate the confusion surrounding the legal basis for its use. The article argues that the necessarily selective use of social science literature in these cases reveals the possible risks of judicial referencing of specific research in this complex and contested field of scholarship and practice. Finally the article considers the Family Violence Best Practice Principles 'for use in parenting disputes when family violence or abuse is alleged' and argues that these do not resolve the jurisprudential problems. The article touches briefly on some possible procedures and approaches that could be considered to deal with some of the identified concerns and concludes that, to continue the productive partnership between family law and social science, this area of law and legal practice is in need of urgent review and reform.
The author team wish to thank the two anonymous peer reviewers for their helpful and insightful s... more The author team wish to thank the two anonymous peer reviewers for their helpful and insightful suggestions for improving the article. The authors also thank David Hugall for his helpful comments and assistance during the course of this project.
For the Women's Legal Service, Brisbane 1 ANGELA LYNCH, ZOE RATHUS & RACHAEL FIELD (1999) 'commun... more For the Women's Legal Service, Brisbane 1 ANGELA LYNCH, ZOE RATHUS & RACHAEL FIELD (1999) 'community of property' system where on the breakdown of a marriage each party gets 50% of the communal property. The discussion paper shows that, in developing these reforms, the policy makers do not appear to have learnt from recent experience in relation to the Family Law Reform Act 1995 (Cth). 3 That is, they have ignored the expertise of women's groups, their ideas, issues and concerns. As a result the proposed 'reforms' amount to unjust and inappropriate changes to the law. And they have not developed a clear 'rationale' for the 'reforms'. As the Chief Justice of the Family Court has put it, they have not made it clear "... what it is that needs to be reformed and why such reform is necessary." If either of the suggested amendments were implemented, they would have a disastrous impact on the economic and social position of women and children in Australia. We have no doubt they would lead to an increase in women and children living in poverty in Australia; an increase in women's reliance on social security and government support, and for longer periods; an increase in litigation (especially at the appellate level); and increased reliance on solicitors. Fortunately, it would appear that at this stage the government is holding back on developing either option fully. In a speech by the Hon Daryl Williams AM QC MP delivered on Wednesday 27 October 1999 to the National Press Club he said that: "... neither option in the discussion paper received significant support. The submissions overwhelmingly supported the retention of the status quo, with some minor modifications, rather than complete replacement of the existing regime." 5 The Women's Legal Service, Brisbane (WLS) is of the opinion that reform to the property sections of the Family Law Act is probably justified. However, reform must be careful and considered and not reactionary. When the government does decide to 3
The article addresses the proclivity of family law judges in Australia for using social science r... more The article addresses the proclivity of family law judges in Australia for using social science research material at the point of decision-making and argues there is a lack of clarity about the legal basis on which this occurs. It analyses the relevant rules of evidence regarding the reception of extrinsic materials and demonstrates the difficulties associated with the use of those rules in the case of social science research. It then examines a range of cases from the first year of operation of the Family Court of Australia until the present day, to trace judicial use of social science literature and demonstrate the confusion surrounding the legal basis for its use. The article argues that the necessarily selective use of social science literature in these cases reveals the possible risks of judicial referencing of specific research in this complex and contested field of scholarship and practice. Finally the article considers the Family Violence Best Practice Principles 'for us...
This article argues that the new family laws in Australia have created a tension between the good... more This article argues that the new family laws in Australia have created a tension between the good pre-separation mother citizen and the good post-separation mother citizen. With the emphasis on shared parenting, post-separation mothers must now sacrifice time with their children in favour of the fathers. This tends to obscure the past care work of mothers and to valorise fathers. Using a linguistic ploy, I reveal the identities and lived realities of the citizens of the modern family by examining their ʻhoodsʼ (their passive state or condition) and their ʻshipsʼ (their more active duties and tasks). These include their motherhood and fatherhood, their mothership and ʻfathershipʼ. The introduction of Family Law Act 1975 (Cth) heralded a more contemporary family law in Australia, and seemed to recognise some aspects of mothersʼ citizenship by valuing ʻwifeshipʼ and ʻmothershipʼ. However, this was followed by the rise of fathersʼ rights groups and a number of transformations of parenting laws, with the most recent significant reforms occurring in 2006. After analysing two recent relocation cases, I argue that current parenting laws tend to ignore the complex realities of mothersʼ lives. I suggest that the concept of parental ʻinvestmentʼ, relational theories and the theory of intimate citizenship may provide useful frameworks for reconceptualising some factors relevant to parenting decisions. 'The time has come,' the Walrus said, 'To talk of many things: Of shoes and ships and sealing-wax, Of cabbages and kings, And why the sea is boiling hot, And whether pigs have wings.' 1 *
These tales are true, And can be sad. FIXTURES in our mind, assuming all bad. There's more to the... more These tales are true, And can be sad. FIXTURES in our mind, assuming all bad. There's more to their stories, Than what I can share. But they will remind us Why we choose to care. AUTHOR'S NOTE: Patients suffering from opioid use disorder have unique stories. Primary care providers are in a special position to positively change the lives of patients and families in recovery, and to find joy and meaning in practice.
Just over a month after the Australia 2020 SUII/mit an extraordinary 'first' was reported in the ... more Just over a month after the Australia 2020 SUII/mit an extraordinary 'first' was reported in the Australian media. Two Australian women, Cheryl and Nikki Bart, became the first mother and daughter team to scale the summit of Mt Everest, having climbed the tallest peak on every other continent.' Well, I thought, from my vantage point of a month's contemplation since the excitement of being a summiteer: 'That's one way of getting women on to a summitl' The media interest in the Bart story suggests at least two things; women can do anything, as we have been saying for years, but we are still doing 'firsts' because women still experience many barriers as they try to do everything. And while Cheryl and Nikki were toiling up that awesome mountain, 1,000 people met in Canberra at that other Summit 'to explore the challenges facing Australia over the next decade and beyond'.2 Part of the purpose of this article is to provide a narrative-a personal story of attending and participating in the Summit. However, another purpose is to explore the way in which women were included in and excluded from the processes, content and discussions of that event, in the hope that the analysis may assist in formulating ways to enhance effective strategic thinking, policy development and service delivery which specifically addresses the needs of and opportunities for women in Australia over the next decade and beyond. Zoe Rathus is a senior lecturer at the Griffith Law School and a member of the Socio-Iegal Research Centre. She is the Director of the Clinical Program and lectures in family law and legal professional responsibility. Before entering academia she was the coordinator of the Women's Legal Service in Brisbane from 1989 to 2004. Zoe thanks Griffith University for its support of her attendance at the Summit and her colleagues in the Law School, other academic colleagues and her former colleagues in the community sector for their ideas, encouragement and generous responses to her selection and ideas gathering. Z.
At the time of submission of this article the authors wait in anticipation to see when and how th... more At the time of submission of this article the authors wait in anticipation to see when and how the newly re-elected Queensland Labor government fulfils its promise to introduce legislation to recognise Torres Strait Islander traditional adoption.1 This article examines how the failure of successive governments to act on this issue has led to Torres Strait Islander peoples not having their practises recognised. This has happened while governments have developed detailed legislative schemes for the legal transfer of children for Queenslanders who have chosen to adopt in the Western manner or to engage in an altruistic surrogacy arrangement. The exclusion from legal recognition is a form of discrimination that has led to disadvantage and legal complications for families where traditional adoption has occurred. The article describes Torres Strait adoption, considers the unacceptable policy positions revealed by its absence from adoption and surrogacy laws and its presence in child prote...
Family Law Principles is different from other family law texts written in Australia because it co... more Family Law Principles is different from other family law texts written in Australia because it covers areas that are important in practice, such as family reports, how courts consider social science research, and also emerging areas in family law. This second edition deals not only with the family law system but includes a detailed explanation of the family dispute resolution system and legislative obligations of both lawyers and family dispute resolution practitioners. It contains a comprehensive analysis of confidentiality and admissibility in family dispute resolution and counselling and recent case law in this area.
Family reports are critical documents in family parenting cases. They are often the only social s... more Family reports are critical documents in family parenting cases. They are often the only social science information available to the judge, the lawyers and the parties. They are influential in judicial decision-making and out-of-court negotiations. Despite their importance there has been little direct research about the quality and impact of family reports in Australia. It is also known that family violence is a common occurrence in parenting cases that progress to litigation, and therefore the kinds of cases in which family reports are ordered, but again this is an under-researched issue. This article presents foundational information about the existing research to identify what is known about family reports and family violence. It examines the legislative framework for family report writing and analyses the official guidelines and documents and informal information that provide context to this work. It considers what family report writers need to know and understand about family v...
This article explores the complex relationship between social science and the law through the len... more This article explores the complex relationship between social science and the law through the lens of the 2011 amendments to the Family Law Act 1975 (Cth) ('FLA'), particularly the definition of 'family violence' which was introduced. There was no definition of family violence in the FLA until 1996, despite a growing public discourse regarding the issue in Australia during the 1980s, and the introduction of domestic violence protection order legislation in every state and territory over that decade. The definition that became operative in 1996 was subsequently amended in 2006 when major parenting reforms were introduced, and in 2011 it was entirely re-fashioned. The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) ('Amendment Act') (which did not become operational until June 2012) was the first time family violence was the central subject of reform of the FLA. The aim of the federal government was to improve the family law...
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