SETTING THE SCENE

This article focuses on the Family Law Act of Australia and its subsequent impact on the Australian courts. There is an analysis of the historical and social factors that led to the legislation. The article also discusses the constitutional precedent and framework surrounding the Family Law Act's inception. Finally, the article addresses the future of the Australian courts under the Family Law Act.     

THE POTENTIAL OF THE FAMILY LAW EDUCATION REFORM PROJECT FOR FAMILY LAWYERS1

Family lawyers are major beneficiaries of the reforms set out in the Family Law Education Reform Project (FLER) Report. This commentary from a veteran family law practitioner explores the needs of the family law bar for the training of law students in practical, interdisciplinary, client‐centered lawyering that goes beyond the traditional case method. I trace many of the current innovations evolving in family law practice and how FLER reforms will not only benefit law schools but also have a major impact in the courts and private practice sector.     

LAW SCHOOLS AND FAMILY COURT REFORM

Family courts are underfunded and overwhelmed, and the quality of representation provided by counsel in family court cases is problematic. This article discusses what role law schools can play in promoting family court reform. It argues that law school involvement in family court is consistent with the law school's core missions of education, research, and public service. The article illustrates how law schools can be involved in family court reform by discussing interdisciplinary projects of the Center for Children, Families and the Law of Hofstra University and North Shore–Long Island Jewish Health Systems. Finally, the article identifies some lessons to be learned if law schools want to be involved in family court reform.     

CONFIDENTIALITY,DUE PROCESS,AND JUDICIAL DISQUALIFICATION IN THE UNIFIED FAMILY COURT: REPORT TO THE HONORABLE STEPHANIE DOMITROVICH

To the extent that courts realize the pure one judge–one family notion of the unified family court—in which one judge handles all domestic relations, probate, juvenile dependency, juvenile delinquency, and domestic violence cases involving members of the same family—they encounter three potential legal barriers: confidentiality of court records in some of the cases, due process issues arising from the consideration of material from a related case file in which the parties to the current case may or may not be parties, and judicial disqualification arising from the judge's handling of a previous case involving the family. This article summarizes information obtained from a survey conducted for the Children and Family Law Committee of the National Conference of State Trial Judges, of courts in sixteen states, to learn how they have resolved these legal issues.     

Redesigning the Family Law System to Promote Healthy Families

Family law professionals should be proactive in seeking and implementing constructive reforms. We identify some successful cutting‐edge reforms: (1) family resource centers, where all kinds of needs can be met; (2) informal family law trials, which streamline clogged calendars and provide an empowering and efficient forum; (3) licensed legal technicians, who increase public access to legal services; and (4) unbundled family law services. Second, we outline a protocol for implementation of reform developed by the Oregon Task Force on Family Law which is effective and replicable. Thoughtful reform of dispute resolution processes will serve family health and promote peace.

Key Points for the Family Court Community:
• Evolving family constellations, private ordering through pre‐ and postmarital agreements, an increase in self‐represented litigants, and shrinking judicial resources are changing family law dramatically.
• Thoughtful, practical process reforms are needed in order to accommodate these changes.
• Practitioners should be proactive about seeking out and implementing such reforms.
• Some reforms already finding success include family relationship resource centers, informal domestic relations trials, licensed legal technicians, and unbundled legal services.
• We outline a protocol with a proven track record of success for implementing cutting‐edge family law reform.

     

Family courts

Family courts are increasingly accepted as altermatives to juvenile courts. Arguments for the establishment of these courts rests on the assumption that a consolidated jurisdiction looking beyond any particular offense to the best interests of a family can better coordinate services and devise creative dispositions. This paper questions whether this movement may not be underestimating the inherent, difficult problems associated with any attempt to regulate family dynamics legally. Theoretical and organizational impediments to the family courts movement are examined. Conclusions are drawn about potentially fruitful roles for family courts to pursue in order to avoid later claims of misdirected idealism.     

Family‐Centered Practice in Florida: Family Court Actions and Perceptions

Family and dependency courts can become valuable partners in efforts to stem the tide of child maltreatment using a family‐centered strategy. Florida's response to a 2008 federal Child and Family Services Review included a commitment to implement family‐centered practice in child protection services and the courts that hear these cases. Evidence of this implementation was documented in a formative evaluation conducted in 2010 and 2011. Findings based on interviews with dependency judges, Children's Legal Services attorneys, and Guardian ad Litem volunteers provide useful insights on how these practices were perceived and implemented.     

DEVELOPING A UNIFIED FAMILY COURT IN ONTARIO

In Ontario, the Family Courts is a branch of the Superior Court of Justice. The author outlines the Canadian concept of a unified family court and the constitutional problems pecular to its initial establishment in Ontario in 1977, as well as its limited expansion in 1995. The courts is now on the verge of another expansion, which will be quite considerable. Also discussed is the need, in a unified family court, for a judiciary that specializes in family law cases, mediation teams and family law information centers in each court site, and most importantly, liaison and resource committees to support the work of the court.     

A NOT SO MODEST PROPOSAL TO HUMANIZE THE LEGAL PROFESSION

This article first appeared in the Los Angeles County Bar Association's Family Law Section quarterly , News and Review. In a very personal and insightful way, the author examines the change which women have brought to the practice of family law .     

From Helping Court to Community‐Based Services: The 30‐Year Evolution of Australia's Family Relationship Centres

As a centrepiece of Australia's 2006 family law reforms, the community‐based Family Relationship Centres (FRCs) represented a major development in the Government's commitment to incorporate family relationship services into its family law system. This paper sees FRCs as a logical development of the original conceptualising the Family Court of Australia as a “helping court”. The paper suggests that the aspiration to create a helping court was partially achieved in 1976 via the creation of an in‐house family court counselling service, which was primarily focused not on law and legal principles, but on supporting the ways in which family members were managing the task of redefining relationships. While generally valued by judges and others, this service nonetheless found itself in tension with the Family Court's continued primary commitment to legally informed and adversarially driven negotiation and decision‐making processes. Since 2006, the creation of FRCs has spearheaded a family law system that provides relationship‐focused interventions away from the courts as the default option for most parenting disputes. Consistent with this aim, there is evidence of a diminished percentage of cases now requiring judicial intervention. The 2006 legislation also provides for courts to conduct “less adversarial trials.” Paradoxically, this has occurred alongside unequivocal evidence from the Australian Institute of Family Studies’ evaluation data that judicial officers are dealing mainly with families displaying seriously dysfunctional attitudes and behaviours. The legal challenge in dealing with these cases is for courts to provide child focused, fair and non‐destructive internal processes. In addition, however, it is increasingly clear that to support and help facilitate their decisions, courts also need good working relationships with FRCs and other community based services. FRCs and the 2006 reforms offer the possibility of moving beyond the ideal of a “helping court” to the broader concept of helping family law system.     

香港特区法院的违基审查权兼与董立坤、张淑钿二位教授商榷

特区立法机关应根据基本法制定法律,特区法院审查特区立法机关制定的法律是否违反基本法的权力被称为"违基审查权"。香港的普通法传统为特区法院的违基审查权提供了法理依据,特区的新法治秩序激活了普通法中法院的司法审查权,而全国人大常委会审查权的不完整性使特区法院的违基审查成为必要。司法实践表明,特区法院的违基审查权无法挑战全国人大常委会的审查权,对基本法的实施总体上是有利的;损害特区行政主导体制的主要因素并非是法院的违基审查,而是立法会的强势地位。作为植根于普通法传统、已有十多年运行实践的权力,特区法院的违基审查权无须再通过全国人大常委会释法确认。当然,基于其在特区法治秩序中的地位,特区法院违基审查权应受到特区外部与内部两方面的制约。     

A SURVEY OF UNIFIED FAMILY COURTS

The American Bar Association Coordinating Council on Unified Family Courts, with the assistance of Hofstra University's Center for Childre. Family and the Courts, recently conducted a survey of various courts and jurisdictions that either implemented or experimented with a unified family court structure. The purpose of the project was to get a sense of the state of unified family courts with the goal of building more support for the unified family court concept based on demonstrated effectiveness. The findings of the survey have been summarized in this article. The survey, survey data, and list of survey respondents can be found in the article's appendices.     

THE EVOLUTION OF MODERN CANADIAN FAMILY LAW PROCEDURE

"Family law procedure" differs greatly from "civil procedure." Canadian jurisdictions and common-law jurisdictions have copied English reforms of merging law and equity. Canada unlike the United States confined legislative authority over divorce to the federal government under the British North American Act. The Canadian federal government enacted the national Divorce Act of 1968, which had a homogenizing effect on substantive family law across Canada in both custody and support matters for a number of years. There are many pressures for fragmentation of procedure specifically, dealing with the provincial courts. Modern family law procedure is much more like civil procedure. If inquisitorial methods are used or if discovery is limited using "simplified rules" for smaller cases, family law procedure will become two different tiers-one for self-represented litigants and litigants where the stakes are small and the other tier would be one that operated under the "normal" rules of civil procedure.     

FAMILY LAW EDUCATION REFORM PROJECT: A FACULTY PERSPECTIVE

The Family Law Education Reform Project Report calls for shifting the family law teaching paradigm from a focus on case‐based analysis toward a problem‐solving, interdisciplinary approach. This essay encourages law professors to take seriously this shifting teaching and learning paradigm. Aligning family law curriculum with the realities of practicing family law is a critical step in this process. This essay discusses the numerous intellectual challenges family law professors will face as they reflect on the proposed FLER Project curriculum.     

PROBLEMS AND SOLUTIONS IN THE MANAGEMENT OF CHILD ABUSE ALLEGATIONS IN CUSTODY AND ACCESS DISPUTES IN THE FAMILY COURT

Child abuse allegations in custody and access disputes are serious matters and present family courts worldwide with major problems. This article reports a large research study just completed that investigated the way the Family Court of Australia managed child abuse cases. The study showed that such cases had become a substantial part of the court's current workload, their "core business" in fact. The families involved had many difficulties, including a history of family violence, and the present system was not appropriate for their particular problems. Thus, as new specialized court lead model of intervention was devised, based on principles relevant to family violence and incorporating the most effective strategies identified in the research.     

关于在我国物权法中设置居住权的几个问题

本文首先从居住权的历史沿革出发,研究了罗马法以及法国。德国物权法有关居住权的立法例;然后根据我国社会发展的现状以及发展趋势,就居住权是房屋这一财产在财产体系中的地位提高的必然反映、居住权有利于提高房屋的利用效益、有利于发挥家庭职能、有利于平衡房屋的利用利益等几个方面说明了在我国物权法中确认居住权这一他物权形式的必要性;最后提出我国物权法对于这种因居住而使用他人房屋的权利,应当以“居住权”概括之,并可以将之定义为：居住权就是特定人因居住而使用他人房屋的权利。文章还对居住权的取得和消灭、居住权的效力等具体问题提出了自己的设想。     

NO MORE CASEBOOKS: USING SIMULATION‐BASED LEARNING TO EDUCATE FUTURE FAMILY LAW PRACTITIONERS

Teaching family law using the traditional casebook method provides students with marginal knowledge and skills. To practice family law, one needs to know how to interview and counsel clients, negotiate with opposing counsel, file pleadings and supporting documents, draft agreements, and understand tax consequences. Moreover, ethical issues abound in the practice of family law, such as confidentiality, conflict of interest, and fee arrangements. Critics of traditional pedagogies in legal academia have included the MacCrate Report, the Carnegie Report, and Best Practices for Legal Education. The Family Law Education Reform Project has focused its attention on the failure of law schools to keep pace with the ever‐evolving nature and requirements of family law practice. This article offers one answer to those who seek to educate law students in a manner that will better prepare them for the practice of family law. The author, who is the director of Vermont Law School's General Practice Program, describes a family law course she has developed and taught for many years. The course is taught in an integrative fashion, and includes substantive law, practice skills, and ethical and professionalism issues. She offers the course as a response and antidote to the ongoing criticisms of tradition a methods of teaching law.     

TO WHOM IT MAY CONCERN: WHY WE DO WHAT WE DO—A FAMILY COURT REFLECTION

This article, adapted from the keynote address delivered at the Hofstra University School of Law Family Law Review Annual Banquet on March 24, 2011, focuses on the impact of the Family Law Review, the need to improve the stature of the family court, and shares excepts of letters written by members of the New York State Permanent Judicial Commission on Justice for Children regarding their passion for working in the fields of child welfare and in the family court.     

THE FAMILY LAW EDUCATION REFORM PROJECT FINAL REPORT

The Family Law Education Reform Project (the FLER Project) is co‐sponsored by the Association of Family and Conciliation Courts and the Center for Children, Families and the Law at Hofstra Law School. This Final Report is based on a series of dialogues between family law academics and practitioners from many disciplines, a FLER Project survey, and research conducted by law students at Hofstra University and Northeastern University. 2     

Reprinted from Vol. 44 No. 4 in Honor of Professor J. Herbie DiFonzo. The Family Law Education Reform Project Final Report†

The Family Law Education Reform Project (the FLER Project) is co‐sponsored by the Association of Family and Conciliation Courts and the Center for Children, Families and the Law at Hofstra Law School. This Final Report is based on a series of dialogues between family law academics and practitioners from many disciplines, a FLER Project survey, and research conducted by law students at Hofstra University and Northeastern University. 2