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We are always talking about family law, it’s what we do. But the way we do it has evolved to make the intent of our words as positive as they can be; to be helpful and to not create a combative atmosphere. It’s all about the power of words in family law. Need help with talking about family law? Contact us.

There is an interesting discussion about this in the December issue of Australian Family Lawyer.  The article explores how legal language in the family law jurisdiction has been closely scrutinised since the 1980s, when Australia, following America’s lead, became increasingly interested in social science research.  There was more consideration of the work of psychologists and social workers, who are said to have “transformed divorce through the use of rhetoric and narrative”.

Psychologists believed that in a litigation setting, conflictual and competitive language can only fuel conflict during a highly emotional time in people’s lives. Conflict based language can be inflammatory which is destructive in family law where civility is necessary for cooperation even after the court process is finalised.

Instead of getting people upset about having courts allow them to “visit” their children, the aim should be that the language employed should reflect goodwill, mutual respect, and use words that are sensitive.  The writer describes how the official language used in disputes over the living arrangements of children has been reworked several times to modernise the terminology used.

The Family Law Act was amended in 1995 after a report by the Family Law Council indicated that “the terminology of the custody/access arrangement has its roots in the notion of ownership of children. It contains adversarial notions of winning and losing and frequently has the effect of substantially devaluing one parent’s contribution”.

The words “custody” and “access” were removed from the Family Law Act and replaced with “residence” and “contact”, to remove the idea that parents had rights to custody and access to children as if they were objects that were owned.  References to “parental rights” were purposely omitted with the focus firmly shifted to highlighting the best interests of the child.

In 2006 the reform continued with more changes to the legislation. “Residence” and “contact” were replaced by the more child-focused concepts of “living with” and “spending time with” parents.  New language appeared, such as the expressed need for the child to have a “meaningful relationship” with both parents. These days, judgments often don’t even refer to a child “living with” one parent and “spending time” with the other; instead they may be described as “living with” each parent.

Read the full story:

Keep talking about family law to improve communication and foster respect. Do you need help with a family law matter? Please call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400


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