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CHAPTER IV

Family Courts in USA, UK and Australia:

A Comparative Study

The establishment of the family court was an expression of the

sophisticated legal thought and an acknowledgment of the traditional courts,

which had failed to successfully deal with the suits related to family affairs. The

family court focuses on helping the people involved to resolve their disputes

themselves by referring them to counselling and mediation. If counselling and

mediation aren’t successful, there will be a hearing in front of a family court

judge as a last resort. This is the normal procedure of the family courts

everywhere in the world. Thus the family court is the place where family disputes

are resolved as quickly as possible.

The Family Court Act is the cornerstone of the family court in every

nation with differences and similarities in process, structure and function. This

chapter gives a brief history of the family courts in various nations, particularly

the USA, the UK and Australia. It looks at the structure and process of the family

courts, and also makes a comparative study of the family courts in India with

those in the other nations.

A family court is essentially a separate court, or more likely a separate

division of the regular trial court that considers cases involving divorce, child

custody, support, guardianship, adoption, and other cases with family related

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issues, including the issuance of restraining orders in domestic violence

cases.1Under the Family Court concept, local alternative dispute resolution

programs, such as mediation and counselling are used frequently to resolve the

issues without the court issuing a judgment or order. The case managers arrange

mediation between the parties, divorce education, drug counselling, or whatever

services the family members (adults and children) need without them having to

proceed with an adversarial hearing in a court.

The family courts all over the world have jurisdiction over the following

classes of actions and proceedings in the manner provided by law:2

1. The protection, treatment, correction and commitment of those minors

who are in need of the exercise of the authority of the court because of

circumstances of neglect, delinquency or dependency, as the legislature

may determine.

2. The custody of minors except for custody and proceedings for marital

separation, divorce, annulment of marriage and dissolution of marriage.

3. The adoption of persons.

4. The support of dependents except for support incidental to actions and

proceedings (in this state) for marital separation, divorce, annulment of

marriage or dissolution of marriage.

5. The establishment of paternity.

                                                            1 Utsav Mukhergee, Comparison of Family Courts in India, USA and Australia. SSRN

http://ssrn.com/abstract=1112363 or http://dx.doi.org/10.2139/ssrn.1112363, Accessed on 15-04-2014.

2 Ibid.

127

6. Proceedings for conciliation of spouses, and

7. The guardianship of the minors from the offenses by or against minors,

between spouses, between parent and child, or between members of the

same family or household.3

Thus, all over the world, the family court discusses almost all the disputes

and common issues in the families.

4.1 FAMILY COURTS IN THE USA

In the United States the family court movement and juvenile court

movement began at the beginning of the 20th century during the Progressive Era

(1890-1920), a period of uncertainty, social activism and political reform in the

United States.4 The family court system was set up in the late sixties to alleviate

the burden on the civil and criminal courts.5

When the traditional agricultural way of life was replaced by the

industrial way of life, it resulted in radical changes and challenges within the

family system. In the mid-19th century, the literacy rate of women rose to the

same level as that of men, and by 1900, almost 20 percent of the Americans who

had graduated from college were women.6 The higher exposure to the

enlightenment and better education equipped the women for jobs in the public

sector, and it promoted migration to other places for job and better living. Thus,

                                                            3 Utsav Mukhergee, Comparison of Family Courts in India, USA and Australia. SSRN

http://ssrn.com/abstract=1112363 or http://dx.doi.org/10.2139/ssrn.1112363, Accessed on 15-04-2014.

4 John D. Buenker, John C. Burnham, and Robert M. Crunden, Progressivism (1986) pp 3–21 5 Victor E. Flango, Creating Family Friendly Courts: Lessons from Two Oregon Counties, 32

Family Law Quarterly, 1998, p. 115. 6 Joseph M Hawes, (ed), The Family in America: An Encyclopaedia, Vol. I, ABC, CL10 Inc,

California, 2001, p.362.

128

women began to be employed in the industrial world as well as in the service

industries. The job-centred lifestyle and the new values of modernity in the

United States led to the disintegration of family-centered life style.

The first national divorce statistics collected and reported to the US congress

in 1889 indicated that there had been a 157% increase in divorces between1867 to

1886.7 The justice system faced an ever-growing need to provide adjudication of

divorce and the issues related to it. Thus the traditional court systems radically

changed, and a new family court system evolved during this period.

The family courts were established in the United States in 1910 with the

name domestic relations courts. The first family court was established in

Cincinnati, Ohio, and later in Des Moines, Lowa; St. Louis, Missouri; Omaha,

Nebraska; Portland, Oregon, Gulport, Mississipi; and Baton Rouge, Louisiana.8 In

the late 1930s, two famous judges Ben Lindsey in Los Angles9 and Paul Alexander

in Toledo, Ohio created special courts for resolving legal conflicts involving

children and families, with non-adversary or conferences like procedure.10

The family court movement was given further impetus by efforts in the

1950s to reform divorce practice, with the goal of curing sick marriages if

possible and, if not, ending them gracefully. In 1959 a coalition of reforms

proposed the Standard Family Courts Act as a model for states to adopt. The Act

                                                            7 Joseph M Hawes, (ed), The Family in America: An Encyclopaedia, Vol. I, ABC, CL10 Inc,

California, 2001, p.362. 8 H. Ted Rubin, Victor Eugene Flango, Court Co-ordination of Family Cases, National centre

for state courts, Williamsburg, 1992, p. 63. 9 Benjamin Lindsey (November 25, 1869 - March 26, 1943) was an American judge and social

reformer based in Denver, Colorado during the Progressive Era. 10 Jay Folberg, “Family Courts: Assessing the Tradeoffs” in Family and Conciliation Court

Review, 1999, p. 449.

129

called for separate courts with comprehensive jurisdiction and less formal and

adversarial procedures, judges with specialised qualifications and a case

management system that provided easy access to all official records about a

family.11

The vastly increased number of divorces that those courts had to deal with

resulted in the divorce-law reforms in the sixties. Divorces were plugging the

system because they had become so easily obtainable and presented so many

incentives for gaining financial advantages for the litigants and the legal industry.

The family court was not established on the basis of social welfare ideology, but,

rather, as a response to the rising number of divorces occasioned by the move

from an agricultural to an industrial economy. A statewide family court was

established in Rhode Island in 1962 and one in Hawaii in 1965. Throughout the

1980s and 1990s, reformers continued to promote the Family Court as a solution

to the legal problems of families. The courts of the United States are closely

associated with the hierarchical systems of courts at the federal and state levels.

The federal courts operate under the authority of the United States Constitution

and federal law.12 The state and territorial courts operate under the authority of

the state and territorial constitutions and law. Thus, the laws in the United States

are made by federal, state, and local legislatures, judges, the president, state

governors, and administrative agencies.

                                                            11 Joseph M. Hawes, (ed) The Family in America: An Encyclopaedia, Vol. I, ABC, CL10 Inc,

California, 2001, p. 363. 12 The Federal Court System - U.S. Courtswww.uscourts.gov/uscourts/ FederalCourts/Publications/

English.pdf , Accessed on 10-02-2014.

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The family is widely recognised as central to American life, and the family

court therefore has a unique place in American society. The family court was

established to focus special attention on individual and social problems concerning

families and children. Its goals are to assist, to protect, and if possible, to restore

families whose unity or well-being is threatened. This court is also charged with

assuring that children within its jurisdiction receive care, guidance, and control

conducive to their welfare and the best interest of the state.13 Additionally, if

children are removed from the control of their parents, the court seeks to secure

care equivalent to that which their parents should have provided. Consistent with

on these goals, the Family Court has jurisdiction to hear and determine all petitions

for divorce and any motions in conjunction with divorce proceedings, such as

motions relating to the distribution of property, alimony, support, and custody of

children. It also hears petitions for separate maintenance and complaints regarding

support for parents and children. The Family Court also has jurisdiction over

matters relating to delinquent, wayward, dependent, neglected, abused, or mentally

deficient or mentally disordered children.14 In addition, it has jurisdiction over

adoptions, child marriages, paternity proceedings, and a number of other matters

involving domestic relations and juvenile offences except murder, rape, and

kidnapping. These traditional areas continue to make up a large part of the work

load of family courts. However the area of responsibility for family courts

continues to expand as family law, like other areas of law, develops and evolves as

society changes. The increase in couples cohabiting and parenting children without

                                                            13 About the Family Courts - Rhode Island Judiciary https://www.courts.ri.gov/Courts/ Family

Court/PDFs/AbouttheFamilyCourt.pdf , Accessed on 10-01-2015. 14 Ibid.

131

marriage and court rulings and legislations granting homosexual couples the right

to marry have changed the legal landscape of family law.15 In the United States

mediation is widely recognised in family courts. This allows families to find

solutions that suit their specific needs, rather than being forced to adhere to the

ruling of a judge.

4.1.1 Family Court and Divorce

A large proportion of the caseload of the US family courts involves

hearing divorce cases. The courts in the United States currently recognise two

types of divorces: absolute divorce, known as a divorce a vinculo matrimonii and

limited divorce, known as a divorce a menso et Thoro. To obtain an absolute

divorce, courts require some type of evidentiary showing of misconduct or

wrongdoing on one spouse's part. An absolute divorce is a judicial termination of

a legal marriage. An absolute divorce results in the changing back of both parties'

status to single. Limited divorces are typically referred to as separation decrees.

Limited divorces result in termination of the right to cohabitate, but the court

refrains from officially dissolving the marriage and the parties' status remain

unchanged16. Some states permit conversion divorce, which transforms a legal

separation into a legal divorce after both parties have been separated for a

statutorily-prescribed period of time.

Many states have enacted no-fault divorce statutes. No fault divorce

statutes do not require showing spousal misconduct and are a response to

                                                            15 Jeffrey A. Jenkins, The American Courts: A Procedural Approach, Jones and Bartlett

Publishers, Canada, 2011, p.152. 16 “Divorce”, Legal Information Institute, Cornell University, www.law.cornell.edu/ wex/

divorce, Accessed on 02-03-2015.

132

outdated divorce statutes that require proof of adultery or some other unsavoury

act in a court of law by the divorcing party. Nevertheless, even today, not all

states have enacted no fault divorce statutes. Instead, the court must only find the

following:

1. The relationship is no longer viable,

2. Irreconcilable differences have caused an irremediable breakdown of the

marriage.

3. Discord or conflict of personalities has destroyed the legit ends of the

marital relationship and prevents any reasonable possibility of

reconciliation,

4. The marriage is irretrievably broken.17

Thus, divorce is much easier in US family system and it focuses on the

individual identity and freedom of spouses in family law.

4.1.2 Property division proceedings

In the United States, courts recognise two different types of property

during property division proceedings- marital property and separate property.

Marital property consists of any property that the spouses acquire individually or

jointly during the course of the marriage. Separate property constitutes any

property that one spouse purchased and possessed prior to the marriage and that

did not substantially change in value during the course of the marriage because of

the efforts of one or both spouses. If the separate property-owning spouse trades

                                                            17 “Divorce”, Legal Information Institute, Cornell University, www.law.cornell.edu/ wex/

divorce, Accessed on 02-03-2015.

133

the property for other property or sells the property, the newly-acquired property

or funds in consideration of the sale remain separate property. By dividing the

assets equitably, a judge endeavours to effect the final separation of the parties

and to enable both parties to start their post-marital lives with some degree of

financial self-sufficiency.18 While various jurisdictions permit recognition of

different factors, most courts at least recognise the following factors:

“contribution to the accumulation of marital property, the respective parties'

liabilities, whether one spouse received income-producing property while the

other did not, the duration of the marriage, the age and health of the respective

parties, the earning capacity and employability of the respective parties, the value

of each party's separate property, the pension and retirement rights of each party,

whether one party will receive custodial and child support provisions, the

respective contributions of the spouses as a homemaker and as a parent, the tax

consequences of the allocations, and whether one spouse's marital misconduct

caused the divorce.”19 Most jurisdictions also give the family court judge broad

jurisdiction by providing judges with the right to consider any other just and

proper factor.

Many states in USA have enacted statutes to govern and interpret the pre-

marital agreements. As the traditional view of marriage began to change, new

approach to financial aspects of relationships also began to change. One of these

was the development of prenuptial agreements and sometimes ante-nuptial

                                                            18 Divorce, Legal Encyclopedia, Legal Information Institute, Cornell University law school,

www.law.cornell.edu/wex/divorce Accessed on 12-5-2014. 19 Ibid.

134

agreements.20 Prenuptial agreements are made in contemplation of marriage to

govern various aspects of divorce.

Though the family courts in the US have many facilities and legal

systems, many of the current family court system fail because of fractioned

jurisdiction, failure to attend the emotional and systemic problems of families,

lack of judicial expertise, and lack of coordinated and effective services.21

The empirical studies on family courts suggests that family courts can

increase efficiency, judicial competency and coordination of cases and can save

costs for attorneys, clients and the judicial system.22

An essential feature of the family court is that related cases are

coordinated and tracked, which requires computer system and staff trained to

operate them. The cost of providing and coordinating services to families is

potentially very great as well. Some jurisdictions do not adopt family court with

the perception that the case load is not large enough to warrant specialisation. For

example, many small judicial districts have only a handful of judges, and in such

places many of the consolidation and coordination associated with family courts

occur naturally.

Traditionally, judges assigned to specialised courts have had lower

professional status and are paid less than judges who handle a variety of cases.

The concern for some judges is that they will suffer professional burn out because

                                                            20 Jeffrey A. Jenkins, The American Courts: A procedural Approach, Jones and Bartlett

Publishers, Canada, 2011, p.152. 21 Rubin, T. and Flango, Court Co-ordination of Family Cases, National centre for state courts,

Williamsburg, 1992, p. 63. 22 Joseph M. Hawes, The Family in America: An Encyclopedia, https://books. google.co.in/

books?isbn=1576072320, Accessed on 08-04-2014.

135

family cases tend to be very emotionally damaging and fear that long-term

assignment to only one kind of cases will stunt judges' professional development.

These problems can be alleviated by legislation that gives family court judges the

same rank and pay as other judges and by a well-designed system of relation

among judicial assignments. Another practical concern related to the judge’s role

is that judicial objectivity and fairness may be compromised if the same judge

presides over all matters concerning a family, since information is properly

considered in others.

A basic assumption of family court is that the experts who work with the

Judges can identify the discrete causes of family problem and provide resources

that will solve the problems. Many modern theorists believe that families operate

as a system, as a series of relationship and roles, and that problem must be

understood as dynamic and arising within these relationships and roles. This

theory points out that any kind of intervention in a family affects its functioning

and that the effects may be unexpectedly negative.23 Identifying a family as in

need of family court service may label that family as deviant, exacerbating rather

than alleviating problems. The family court model contemplates that not only will

the judges have extensive information about families that come before them, but

also that the judges will have greater discretion to fashion orders tailored to the

individual need of the families.

In short, a unified family court committed to dispensing preventive,

therapeutic and restorative justice will result in better services and justice for the                                                             23 Edward P. Mulvey, “Family Courts: The issues of Reasonable Goals” in Law and Human

Behaviour, American Psychological Association, Vol 6 (1), March 1982, p. 53, http://dx.doi.org/10.1007/BF01049314 Accessed on 08/01/2015.

136

children and families who enter the courts of America daily.24 Thus family court

must promote model fairness and effectiveness together with an ethics of care

and a restoration of relationships wherever possible. As a result, future legal and

social problems are more likely to be prevented. Public trust and confidence in

the judiciary will grow, as will economic and political support. A unified family

court is one that will preserve lives and make decisions that truly count for the

future of the US families, children, and ultimately communities. Therefore, US

leads unified family court system for the fair and effective restoration of family

relationships.

4.2  Functions of Family Courts in United Kingdom

The earliest family jurisdiction in UK was exercised separately by

ecclesiastical courts and justices of the peace, a division between spiritual and

temporal law.25 The early history of family law has been described as a

compound of Roman law, canon law, and legislation. Roman law was

authoritative through much of Europe until canon law was established in the 5th

and 6th centuries. Until 1857, the division in family law worked by ecclesiastical

courts dealing with matrimonial causes, while common law dealt with any

questions of property rights for widows, or questions of illegitimacy. It was

necessary to check on the validity of a marriage to determine such questions, the

common law court would obtain a certificate from the relevant bishop. Church

courts held jurisdiction for all matrimonial cases because of the theological                                                             24 Michael A. Town, The Unified Family Court: Preventive, Therapeutic and Restorative

Justice for America’s Families, http://www.preventivelawyer.org/main/ default.asp? pid=essays/town.htm, Accessed on 05-03-2014.

25 Julie Doughty, The Functions of Family Courts ,PhD Thesis ,Cardiff University, 2011, p66, http://orca.cf.ac.uk/18865/1/2011DoughtyJPhD.pdf, Accessed on 10-01-2014.

137

interpretation of marriage as indissoluble, both in natural law, and as set down in

the Christian gospel. Natural law was additionally regulated by society-imposed

norms exercised by the Church, which gave rise to a vast system of

jurisprudence. The validity of a marriage could be certified only by a bishop,

each of whom operated through a Consistory Court. Despite the symbolic and

legal status of marriage, interpretation of what constituted a marriage ceremony

varied until reform in Lord Hardwicke‘s Marriage Act 1753,26 which provided

considerable scope for disputes about validity.

The Matrimonial Causes Act 1857 was designed to move matrimonial

disputes to the civil courts. It was one of a series of reforms to unify and

rationalise the administration. The ecclesiastical courts' jurisdiction was

predominately probate, thus we can see the first divorce courts envisaged

narrowly as part of a mechanism for settling property matters, in contrast to the

wider functions of family justice today.

The ecclesiastical court’s role was supplemented by actions in the

common law courts and parliament from the 17th century. These were all

consolidated in 1857. When the reforms were debated in the 1850s, these

functions were being undertaken firstly by ecclesiastical courts and a Parliament

with an active House of Lords, including many bishops. The earlier family law

cases were related to children and spouses. Since 1865, family cases emerged in

this country for settlement.

                                                            26 Julie Doughty, The Functions of Family Courts ,PhD Thesis ,Cardiff University, 2011, p.84,

http://orca.cf.ac.uk/18865/1/2011DoughtyJPhD.pdf, Accessed on 10-01-2014.

138

In the early period, the common law was used in the state’s courts, after

the concurrent development with Roman or civil law and equity, but aspects of

civil law remained influential in the ecclesiastical courts until these were

abolished in the 19th century.27

Family matters are dealt with in the Family Division of the High Court,

district judges in County Courts and in Family Proceedings Courts, which are

specialist Magistrates’ Courts. Magistrates undergo specialist training before they

sit in Family Proceedings Courts, where procedures are very different from the

criminal courts. The Court of Appeal and the House of Lords deal with appeal

cases only. Some applications are to be made to a particular tier of courts, that is

all care applications are to be made to the Family Proceedings Courts and all

divorce petitions are to be issued in Country Courts.

Till 2014, the Family Proceedings Courts were a part of Country Courts.

But it was changed to single full court system. The Single Family Court system

was introduced in 22 April 2014 and now the family disputes are dealt with in the

Single Family Court and the High Court.28 Cases affecting children are dealt with

under the Children Act of 1989. The Family Court will exercise jurisdiction in all

family proceedings and so there will no longer be separate family jurisdiction in the

magistrates' courts and county courts. This is brought about by a new Section 31A

                                                            27 Julie Doughty, The Functions of Family Courts ,PhD Thesis ,Cardiff University, 2011, p.84,

http://orca.cf.ac.uk/18865/1/2011DoughtyJPhD.pdf, Accessed on 10-01-2014. 28 Matthias Mueller Single Family Court - Family Justice System Reforms,

http://www.familylaw.co.uk/news_and_comment/Single-Family-Court-family-justice-system-reforms, Accessed on 10-03-2015.

139

in the Matrimonial and Family Proceedings Act 1984 (inserted there by the Crime

and Courts Act 2013).

The family court is a national court and will be able to sit anywhere. In

practice it will generally sit in the county and magistrates' courts where family

cases are already heard. There will be at least one Designated Family Centre in

each Designated Family Judge area and there may be other hearing centres too.

The Principal Registry of the Family Division is now known as the Central

Family Court. However, the Principal Registry of the Family Division will still

exist as a division of the High Court in the Royal Courts of Justice.

4.2.1 Background of the family court system

In the UK, family law is the area of law that deals with: Public law –

local authority intervention to protect children, Private law -- parental disputes

concerning the upbringing of children, Dissolution of marriages or civil

partnerships, Remedy (formerly known as ‘ancillary relief’) financial provisions

after divorce or relationship breakdown, domestic violence remedies, forced

marriage protection orders, Adoption, and Court of Protection, and the Office of

the Public Guardian.29 The family justice system exists to help families avoid

disputes as far as possible, but also, if disputes or problems should arise, to

enable them to resolve those problems quickly and with the minimum of pain

caused to those involved. If at all possible the parties are encouraged to resolve

their disputes out of court, through mediation, on the grounds that they are more

                                                            29 A Giide to Family Court Statistics, Ministry of Justice, 2015 p.1,. https://www.gov.uk/

government/uploads/system/uploads/attachment_data/file/388813/guide-to-family-court-statistics.pdf, Accessed on 03 -03-2015.

140

likely to stick to any agreement if they themselves have had a role in formulating

it. When disputes do come to the courts, the cases are dealt with by magistrates

and judges specially trained to deal with issues affecting families. These disputes

often involve very difficult circumstances. Judges and magistrates work to make

the circumstances of family disputes less adversarial and hearings can often be

quite informal. Family law, mainly involves two sorts of work : private law and

public law.

4.2.2 Public law

Public law cases are brought by local authorities or an authorised person,

and include matters such as, care orders, which give parental responsibility for

the child concerned to the local authority applying for the order supervision

orders, which place the child under the supervision of their local authority

emergency protection orders, which are used to ensure the immediate safety of a

child by taking them to a place of safety, or by preventing their removal from a

place of safety. Public law cases must start in the Family Proceedings Courts.

They may be transferred to the County Courts if it will minimise delay or enable

the case to be consolidated with other family proceedings, or where the matter is

exceptionally grave, complex or important.

4.2.3 Private Law

Private Law cases are disputes that involve parents and concern their

children, for example, in divorces or separations, who the children should live

with, who they should see, where they should go to school or even if they can

move to live abroad with one of their parents. The cases can also involve

141

grandparents and other relatives. It includes parental responsibility, financial

applications, special guardianship orders, which give a special guardian, legal

responsibility without removing legal responsibility from the birth parents.

Orders under Section 8 of the Children Act 1989, which can be used to settle

where a child lives, parental contact and responsibility and other specific

disputes. Orders can also be made over “prohibited steps” – for example,

preventing a parent from moving a child to another country

4.2.4 Mediation in Family Disputes

Mediation can be particularly beneficial where there will be a continuing

relationship following dispute resolution, such as in family cases. Family

mediation can help reduce hostility and improve  chances of long-term

cooperation between parents and couples, for example, in agreeing arrangements

for their children and financial matters. Before applying to the Family Court,

people will need to prove they have considered mediation first. This was enacted

in the Children & Families Act, 2014.30

4.2.5 Family Courts in Marriage Matters

Family Courts can end a marriage in two ways – by a decree absolute of

divorce, which ends a valid marriage, or by a decree of nullity, which finds that

the marriage was not valid in the first place.31 Reasons for declaring a marriage

legally invalid includes, either party being under the age of 16, either party being

already married, the parties are prohibited from marrying, for example father and

                                                            30 www.legislation. gov.uk/ukpga/2014/6/contents/enacted, Accessed on 03-03-2015. 31 Family Law Courts, Courts and Tribunals Judiciary, https://www.judiciary.gov.uk/you-and-

the-judiciary/going-to-court/family-law-courts, Accessed on 03-03-2015.

142

daughter. Voidable marriages are those which are not consummated, where one

party was suffering from an infectious venereal disease, or where the woman was

pregnant by someone else at the time of the marriage. Family courts can also

grant a judicial separation, which does not dissolve the marriage, but recognises

that the parties no longer live together.

4.2.6 Forced Marriage Protection Orders

The Forced Marriage (Civil Protection) Act 2007 came into force on 25

November 2008. The Act amended, Part IV of the Family Law Act to enable 15

designated courts to make Forced Marriage Protection Orders (FMPOs) to

prevent forced marriages from occurring and to offer protection to victims who

might have already been forced into a marriage.32

4.2.7 Domestic violence

The Domestic violence, Part IV of the Family Law Act 1996 provides

single and unified domestic violence remedies in the family court and the High

Court. A range of people can apply to the court: spouses, cohabitants, ex-

cohabitants, those who live or have lived in the same household (other than by

reason of one of them being the other’s employee, tenant, lodger or boarder),

certain relatives (for example, parents, grandparents, in-laws, brothers, sisters),

and those who have agreed to marry one another. The Magistrates’ courts and

County Courts can provide orders to the unified domestic violence courts. Two

types of order can be granted: a non-molestation order, which can either prohibit

                                                            32 Family Court Statistics Quarterly, July to September 2014, Ministry of Justice, 2015, p.19

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/388811/family-court-statistics-quarterly-july-to-september-2014.pdf, Accessed on 05-03-2015.

143

particular behaviour or general molestation, and an occupation order, which can

define or regulate rights of occupation of the home.33 Anyone breaching a non-

molestation order can be arrested. Family Courts also have powers to order that a

suspected abuser may be removed from the home, rather than the child. County

Courts also have powers to prevent forced marriages, and to offer protection to

victims who might have already been forced into a marriage.

4.2.8 Financial remedy

During a divorce, a marriage annulment, or a judicial separation, or the

dissolution of a civil partnership, there may still be a need for the court to settle

disputes over money or property. The court can make a financial remedy order,

formerly known as ‘ancillary relief’.34 These orders include dealing with the

arrangements for the sale or transfer of property, maintenance payments, a lump

sum payment or the sharing of a pension. Orders for financial provision other

than for ancillary relief are not dependent upon divorce proceedings and may be

made for children.

4.2.9 Adoptions

An application for adoption can be made to the family court in the area in

which the child is living. An adoption order made by a court extinguishes the

rights, duties and obligations of the natural parents or guardian and vests them in

the adopters. Prior to making an adoption application, a placement order is

generally made to place a child with prospective adopters. If the placement is being                                                             33 Ibid. 34 Family Court Statistics Quarterly, July to September 2014, Ministry of Justice, 2015, p.16

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/388811/family-court-statistics-quarterly-july-to-september-2014.pdf,Accessed on 05-03-2015.

144

made by an adoption agency, by a High Court order, or by the child’s parent, the

placement period is 10 weeks before an adoption application can be made.35 For a

step-parent the placement, duration is six months, while for local authority foster

parents, it is usually one year. In other cases the courts generally require the child

to have been living with the prospective adopters for three out of the preceding five

years. In an adoption the child becomes, for virtually all purposes in law, the child

of its adoptive parents and has the same rights of inheritance of property as any

children born to the adoptive parents.

4.2.10 Judge’s role in a family case

Family court judges deal mainly with two sorts of work. They deal with

private cases which are disputes involving parents about their children. The

second sort of case is what is called public work; when local councils take action

to remove children from their parents’ care because they are being hurt in some

way. These cases can lead to those children being adopted and the judge deals, all

the papers the day before for better understanding of the case before it comes into

court. Such cases can take a long time to resolve and it is important that those

involved see the same judge throughout the case if possible so that there is a

consistent approach to deals with the problems that are being addressed.

The parties are usually represented by lawyers who have been specially

trained to do this difficult and sensitive work. The judges are specially trained to

as these cases affect peoples’ lives in a very close and sometimes devastating

                                                            35 A Guide to Family Court Statistics, Ministry of Justice ,2015 p.9 ,

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/388813/guide-to-family-court-statistics.pdf, Accessed on 03 -03-2015.

145

way. The judges are dealing with their own lawyer in public instances and can

have a lawyer in private cases if the judge believes they should. In both cases the

judge will have reports from an expert court officer who will talk to the children

and get to know their wishes. These cases can take a long time to sort out and it is

important to remember that the judge has to put the children’s interests and

welfare first.

Hearings in the family courts are in private and only those who are

involved can attend. The judge does not wear robes and the proceedings are much

more informal than those in a criminal court so that people who are often

frightened and nervous do not feel intimidated and can tell the judge what they

want to say. The people in the cases will know each other, they may be angry and

upset and feelings can run high. The case can cause distress and a family judge

has to try to keep people calm and be sensitive to everyone’s point of view.

Sometimes witnesses are too frightened or upset to be in the courtroom and

arrangements can be made to help them by using a video link.

4.2.11 Family Courts and Important Legislations

The Adoption and Children Act 2002 made amendments to the law in

relation to the adoption of children.36 The first stage of the Act deals with Local

Authorities, duties to provide an adoption service and support services. The

second stage relate to inter-country adoptions and the third stage relate to

                                                            36 A Guide to Family Court Stastistics, Ministry of Justice ,2015 p.16,

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/388813/guide-to-family-court-statistics.pdf, Accessed on 03 -03-2015

146

Adoption Support Services. Changes to parental responsibility and the adopted

children register were also made.

The Civil Partnership Act 2004 grants civil partnerships in the United

Kingdom with rights and responsibilities identical to civil marriage.37 Civil

Partners are entitled to the same property rights as married opposite-sex couples,

the same exemption as married couples social security and pension benefits, and

also the ability to get parental responsibility for a partner's children, as well as

responsibility for reasonable maintenance of one's partner and their children,

tenancy rights, full life insurance recognition, next-of-kin rights in hospitals, and

others. There is a formal process for dissolving partnerships akin to divorce. The

Domestic Violence, Crime and Victims Act 2004 concentrate upon legal protection

and assistance to victims of crime, particularly domestic violence.

The Forced Marriage (Civil Protection) Act 2007 seeks to assist victims of

forced marriage, or those threatened with forced marriage, by providing civil

remedies.38 The Act established the forced marriage order. A person threatened

with forced marriage can apply to court for a forced marriage order. The court can

then order a range of appropriate provisions to prevent the forced marriage from

taking place, or to protect a victim of forced marriage from its effects, and may

include such measures as confiscation of passport or restrictions on contact with

the victim. The subject of a forced marriage order can be not just the person to

whom the forced marriage will occur, but also any other person who aids, abets or

                                                            37 A Guide to Family Court Statistics, Ministry of Justice, 2015 p.16,

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/388813/guide-to-family-court-statistics.pdf, Accessed on 03 -03-2015

38 Ibid.

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encourages the forced marriage. A marriage can be considered forced not merely

on the grounds of threats of physical violence to the victim, but also through threats

of physical violence to third parties or even self-violence.39 A person who violates

a force marriage order is subject to contempt of court proceedings and may be

arrested. The Crime and Courts Act 2013 established the single Family Court,

replacing the previous three-tiered system under which cases were heard in family

proceedings courts, Country Courts and the High Court.40

The Children and Families Act 2014 made a number of changes affecting

public law family cases. In particular, it introduced a 26-week-time limit for

completing care and supervision cases. It gave the family court the discretion to

extend cases by up to 8 weeks at a time should that be necessary to resolve

proceedings justly.41 The Act also removed the need to review interim care orders

and interim supervision orders as frequently allowing the courts to set interim

orders in line with the time table for the case. In relation to private law matters,

the Act introduced a ‘child arrangements order’, replacing residence and contact

orders. It also removed the requirement for the court to consider arrangements for

children as part of the court process for divorce and dissolution of a civil

partnership.

In short, in the UK, the family courts ensures that the children have rights

and that the young people understand the decisions that affect them. It is creating a

dedicated, managed Family Justice Service and improving judicial leadership and                                                             39 Marriage procured through threat of suicide. 40 A Guide to Family Court Statistics, Ministry of Justice, 2015 p.17.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/388813/guide-to-family-court-statistics.pdf, Accessed on 03 -03-2015.

41 Ibid.

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supporting a change in judicial culture. Family court system in the UK tries in

improving case management, ensuring the way in which the courts are organised to

streamline more effectively. It also ensures there is a competent and capable

workforce through effective workforce development. The single family court

system aims in speedy settlement of family disputes with all necessary

infrastructure and legal system.

4.3 Functioning of Family Courts of Australia

The Australian42 legal system is based on a fundamental belief in the rule

of law, justice and the independence of the judiciary. Australians and non-

Australians are treated equally before the law to safeguard their rights. The law

ensures that people are not treated arbitrarily or unfairly by government officials.

The Family Court in Australia is a superior court of record established by

Parliament in 1975 under Chapter III of the Constitution.43 It commenced

operations on 5 January 1976 and it consists of a Chief Justice, a Deputy Chief

Justice and other judges. The Court maintains registries in all Australian states

and territories except Western Australia.44 The 1987 Advisory Committee on the

Australian Judicial System, otherwise known as the ‘Jackson Committee’,

received numerous submissions on the position and role of the Family Court in

the federal judicial structure. Its final report of the Constitutional Convention

states that the work of the Family Court falls into two broad categories. In the

first category falls the great number of applications which are essentially of a                                                             42 Australia, is the world's sixth-largest country, A highly developed and one of the wealthiest,

which comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands.

43 www.familycourt.gov.au, Accessed on 10-3-2015. 44 Family Courts of Australia, Annual Report, 2013-2014.

149

routine kind, and many of them do not warrant the attention of a superior

tribunal. The second category involves a smaller, but significant, number of

major contested cases concerning, in particular, questions related to the custody

of children and to property. This category does warrant the attention of a superior

court. A substantial part of the work of the Family Court is appropriate for a

superior court, but it does not favour the view that jurisdiction in such matters

should be given to a court at District Court level. The Jackson Committee did

however go on to recommend a ‘program of renovation’ for the Family Court.

This included equipping the Court with staff and conditions appropriate to a

superior court, while taking steps to limit its workload to that part of its

jurisdiction that warranted the attention of a superior court. The Family Court of

Australia and Federal Circuit Court of Australia was merged into a single agency

from 1 July 2013, known as the Family Court and Federal Circuit Court.

4.3.1 Overview of the Family Courts in Australia

The family court’s goal is to deliver excellence in service for children,

families and parties through effective judicial and non-judicial processes and

high-quality and timely judgments, while respecting the needs of separating

families. The purpose of the Court, as Australia’s superior court in family law, is

to determine cases with the most complex law, facts and parties cover specialised

areas in family law, and provide national coverage as the appellate court in

family law matters. The core services of the court are those that are prescribed by

legislation enable and support judges to determine cases, and meet duty of care

requirements.

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The Court’s vision provides for putting children and families first in the

design and providing quality child dispute services for families, ensuring

independence and impartiality in the judicial process The objective of the Family

Court of Australia is to support Australian families involved in complex family

disputes by deciding matters according to the law, promptly, courteously and

effectively.

The Family Law Act 1975 introduced a new law dealing with the

dissolution and nullity of marriage, custody and welfare of the children,

maintenance and the settlement of property between the parties to a marriage in

Australia.45 The Act also created the Family Court of Australia as a specialist

court dealing only with matrimonial and related transactions. The Act provides

that there is but one basis for divorce, that is of irretrievable breakdown of a

married couple, for which ground is made if the husband and wife have been

distinguished and have existed apart from each other for 12 months and there is

no reasonable likelihood of their reconciliation.

The provisions of the Family Law Act dealing with the maintenance,

custody and welfare of children of a marriage have, since 1 April 1988, applied to

all children, including ex-nuptial children46 in New South Wales, Victoria,

Queensland, South Australia, Tasmania, the Australian Capital Territory, the

Northern Territory, and Norfolk island. In Western Australia, the Family Law

Act does not apply to ex-nuptial children, who are subject to State laws.

                                                            45 Dennis Trewin, “Family law and Family Court of Australia”, Year book Australia, Australian

Bureau of Statistics,Canbera,2005,p.344, bookhttps://books.google.co. Accessed on 08-01-2015.

46 Ex-nuptial Child is a child born outside of marriage.

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Proceedings under the Family Law Act are dealt with by the Family Court of

Australia and by certain other courts in the Australian States and Territories.

Except in certain areas of Western Australia, Magistrates Courts and Courts of

Petty Sessions have jurisdiction in all proceedings under the Act, except for the

proceedings for dissolution or nullity of marriage.

A State Family Court has been established in Western Australia to deal

with family law matters in that State. That Court applies the provisions of the

Family Law Act in dealing with matters related to dissolution and nullity of

marriages, the custody and welfare of children of marriages, and maintenance and

property settlements. Family Law Principles47 such as no fault divorce, the best

interests of the child, parental responsibilities, property division and dispute

resolution are the important features of the Act.

In relation to the guardianship and custody of children, the Act makes it

clear that both parents are responsible for the care and welfare of their children

until the children reach 18, and arrangements which involve shared

responsibilities and cooperation between the parents are made in the best interests

of the child.48 When a court makes a parenting order, the Act requires it to regard

the best interests of the child as the most important consideration. Parents are also

encouraged to use this principle when making parenting plans. However, a parent

or other interested person can apply to the Court for sole custody of a child at any

time. The Court has power to settle disputes about the parties' family assets,

including the power to order a transfer of legal interests in matrimonial property.                                                             47 http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Family+Law+Principles ,

Accessed on 10-03-2015. 48 Ibid.

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When sharing with these disputes, the court takes the interest each party has in

the property, the financial and non-financial contributions made by each party

during the marriage, and the matters the Court is required to take in dealing with

maintenance applications. The Family Law Act has also established two statutory

bodies that assist and advise the Commonwealth Attorney-General on family law

matters. They are the Family Law Council, an advisory body, and the Australian

Institute of Family Studies, a research body that is based in Melbourne.49

The Judges of the Family Court of Australia are chosen according to their

suitability to deal with matters of family law by reason of their training,

experience and personality. Staff who is attached to the Court include trained

counsellors and legally qualified Registrars and Deputy Registrars

Proceedings under the Family Law Act in the Family Court are heard in

open court, although others may be excluded from the Court by court order.

Some proceedings may be heard in chambers. No publicity that identifies the

person or persons involved in any proceedings under the Act is permitted unless

otherwise directed by the Court. The publication of law court lists and law

reports, or other publications of a technical character directed to the legal or

medical professions, is, however, exempted from this prohibition.

The objective of the Family Court and Federal Circuit Court

administration is to assist the courts to achieve their stated purpose by

maintaining an environment that enables judicial officers to make determinations,

                                                            49 Dennis Trewin, “Family Law and Family Court of Australia”, Year Book Australia,

Australian Bureau of Statistics,Canbera,2005,p.344, https://books.google.co., Accessed on 08-01-2015.

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providing effective and efficient registry services, managing resources, and

providing effective information and communication technologies.

4.3.2 Family violence action plan

During 2013–14, there were a number of initiatives undertaken by Child

Dispute Services to ensure that family violence remains an area that is

appropriately canvassed by the clinical staff working for the courts. These

initiatives include:50

4.3.2.1 Seminar series

The seminar series is a monthly cycle of presentations given by Australian

and international experts on family law issues. Attendees include internal family

consultants, judges, family consultants, and family law practitioners. During

2013–14, there were various presentations on family violence including child

maltreatment, in an effort to ensure that clinical staff are kept abreast of the latest

empirical and practice trends in this area. It will also be available via video link

to all other court registries.

4.3.2.2 Risk screening tool

Child Dispute Services has embarked on a complete review of the process

of screening for family violence risk when litigants undertake assessments with

family consultants. Child Dispute Services has elected to pursue a court-specific

version of a tool that emphasises behavioral assessment of risk, rather than more

subjective descriptors that tend to be included in many risk assessment tools                                                             50 Family Court of Australia Annual Report 2013-2014 ,Commonwealth of Australia 2014

http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/about/publications/annual/ Accessed on 05-01-2015

154

examining family violence.51 There are also ongoing discussions about the

possibility of parents completing this electronically prior to their initial

interviews with a family consultant. The Chief Justice committed the Family

Court of Australia to follow out the International Framework of Court

Excellence.

The Court has embarked on this work in complex and challenging

conditions. Not least among those include competition for scarce public

resources; continuing community demand for high quality service, greater

requirements for accountability and transparency, and the prospect of structural

change for the federal courts.52 In this context, deep consideration of the Court’s

functioning and constructive implementation of change to ensure that the Court is

a marker for excellence.

4.3.3 Enhancing service through information technology

In response to the on-going financial pressures and changing community

expectations of online services, as well as the need to improve efficiency and

support to the judiciary and staff, the courts’ administration has developed a

number of initiatives to enhance current e-filing and IT services to court users,

the judges and staff.

The Registry Services Information, Technology and Communications

(ICT) Priorities Statement, developed in consultation with the registry services

and information technology divisions of the courts, provides high level direction                                                             51 Family Court of Australia Annual Report 2013-2014 ,Commonwealth of Australia 2014

http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/about/publications/annual/ Accessed on 05-01-2015

52 Ibid.

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and priorities for these e-service initiatives. The statement aims to assist the

courts to transform services over time through extensive engagement with the

judiciary, court users and staff. Electronic devices and electronic storage of court

records will be explored within this program.

4.3.3.1 Case track

Case track is the court case management system introduced in 2002. A

major enhancement is currently underway to improve its usability. The changes

will introduce new and updated functionality, including a modern browser-based

technology that provides a simplified approach to managing the work done in

chambers and in other areas of the courts’ operations. The first new module was

implemented in March 2014 and was specifically designed to simplify the way

chambers manage their dockets. Further modules are now under development.

4.3.3.2 Live Chat

Access to Live Chat is now available via the courts’ websites. Live Chat

enables a party using the website to chat online with a staff member at the

National Enquiry Centre (NEC) to ask procedural questions about filing in the

family law system. They can also chat online if they have any queries about

e-Filing on the Commonwealth Courts Portal. Currently, clients can chat with the

NEC about issues such as, Divorce, Parenting, Property, Filing and General.

Live Chat is a cost effective and easily manageable channel of

communication for the courts. Staff can multi-task and manage up to four

conversations at once. It also provides a convenient way for clients to access the

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courts and engage with client service officers. Clients can continue browsing the

website and easily view online content while chatting.

4.3.3.3 Twitter

The Family Court’s Twitter account was launched in October 2012 at the

National Family Law Conference in Hobart. The Twitter account provides

information, useful links and updates to followers. It has been used to welcome

judicial officers as well as inform followers of court initiatives like the Young

Employees Advisory Group. Followers are mainly of legal professionals, law

students, journalists and members of the general public. The Family Court’s

Twitter account forms part of a wider focus on providing information to

stakeholders in timely and relevant ways.53

4.3.3.4 You Tube

The courts have created YouTube54 channels to provide information to

clients in a different way to the usual form or fact sheet. Videos currently

available include how to apply for a divorce, and Serving divorce papers.

4.3.3.5 Video conferencing

Infrastructure to support Internet Protocol (IP) video conferencing was

implemented across the courts in the second half of 2012–13. Further upgrades

were carried out during 2013–14, including upgrading the equipment in the

courtrooms. The new equipment allows video conferences between registries to be

                                                            53 Follow the Court on Twitter @Family Court AU 54 Visit the Family Court’s YouTube channel at https://www.youtube.com/user/familycourtAU

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conducted for free because the video conference content is now being carried over

the courts’ IP network instead of expensive external ISDN lines.

Fixed units have been installed in many courtrooms which are fully

integrated with sound reinforcement and court transcript recording systems, while

portable units, which offer high quality video and sound, are also available at every

registry. The uptake of video conferencing has increased rapidly for inter-registry

links, as managers are finding this a more effective and cheaper solution for multi-

site meetings, rather than the traditional telephone conference calls or travel.

4.3.3.6 Q-Flow statistics on websites

This initiative involves transferring data from the courts’ client queue

management system (Q-Flow) concerning client service waiting times and the

number of clients waiting for service at registry counters to the courts’ websites.

This provides lawyers and litigants with a view of wait times in the registry in

real time. It informs lawyers and litigants about the best time to visit registries,

when demand is lower and they are likely to spend less time waiting. It also

assists registry staff in providing a better client service.

This is a small, low cost initiative aimed at improving customer service,

providing better visibility for litigants and lawyers regarding wait times, and

using our existing resources efficiently and effectively by spreading the demand

across business hours.

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4.3.3.7 Commonwealth Courts Portal

The Commonwealth Courts Porta55 launched in July 2007, is a continuing

initiative of the Family Court, the Federal Court and the Federal Circuit Court.

The Portal provides free web-based access to information about cases that are

before these courts. After registering, lawyers and parties can keep track of their

cases, identify documents that have been filed and view outcomes, orders made

and future court dates. Users log on using a single user ID and access multiple

jurisdictions from a single central web-based system.

In short, Family Courts are independent, but cooperate to provide

streamlined access to the federal family law system. Clients are benefited too: a

simplified path through the family law system, access to services for the

resolution of family disputes, a single point of filing regardless of which court

handles the application, a national enquiry centre and website that provide

information about both courts, high quality services to litigants and the

community, and easy transfer of cases between courts when ordered by a court.

In Australia, the family court system is very much faster than in any other

nations. It is the result of Information Technology and techno- friendly court

proceedings.

4.4 Comparison of family courts in the USA, the UK, Australia, and India

The Family Court handles the matters such as divorce, adoption, domestic

disputes, cases of child abuse and neglect, and termination of parental rights. The

process and structure of the court proceedings vary in various nations. The

                                                            55 www.comcourts.gov.au.

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comparison of the family courts in the USA, the UK and Australia shows that

many of the family issues are as same as in Indian family courts. However, the

proceedings and settlements differ in each nation. A unified family court system

is followed in the USA, UK and Australia, whereas in India, the family court

system is based on the Family Court Act of 1984. The use of information

technology and web based information access is very frequent in the above

countries. They ensure more emphasis on the personal rights of the parties rather

than the law related to religion or any other customs. The following are the

special features in the comparison.

4.4.1 Family, Marriage, Divorce

In India the family law provides a strong foundation for stability in both

couples and children. The religious institutions also enrich a stable foundation for

family relationships. Therefore, marriage is considered as a stable, reliable

institution in the society. Though the dissolution of marriage has been uncommon

in India for a long time, now it is common in every state. The incidence of

separation and divorce, conflict between parents and children, between siblings,

dissolution of joint or extended families and solidarity within the family, etc. are

the threat to stability of family and marriage. The rising individualism, domestic

violence, migration, economic hardships, etc. causes a break-down in the

traditional institution of marriage and family. The family breakdowns are the

common phenomenon in every nation, especially in the USA, the UK and

Australia. Therefore, the family court plays a unique place in the life of families,

to restore the family’s unity and well-being.

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In the USA, the issues of couples cohabiting, parenting children without

marriage and homosexual couples are under the landscape of family law. There,

the mediation is based on solutions that suit the party’s need rather than the ruling

of a Judge. In the USA, many states have accepted the divorce statutes, an

evidence of spousal misconduct is unnecessary for a divorce. However, in the

USA some jurisdictions have not adopted family court systems, but still it is in

the hands of judges. There the ultimate goal of the family court is to provide

therapeutic and restorative justice to the children and families. Thus the family

courts and Judges are trying to promote fairness and effectiveness in restoration

of family relationships.

In the earlier period, family disputes were settled in the ecclesiastical

courts in the UK, but later, it was moved to the family division of the High Court,

District Judges in Country courts and in family courts. In the UK, structure of

family life has been changing from the social institution to private relationship.

Couples have placed more emphasis upon the personal qualities of their partners

based on companionship, communication and sexual compatibility. Now-a-days,

women are no longer entering marriage because of the economic stability

purposes and they became more independent. In the UK family courts,

cohabitation, remarriage, lone parenthood, divorce and single mothers, birth

outside marriages, children with stepfathers are the common phenomenon. The

transition from culturally prescribed rules to negotiated rules is bound to cause

tension to both the individuals and to the institution of marriage.

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Since 2014, the family disputes are under the single family court and the

High Court. It can be a national court and able to sit anywhere. Its main aim is to

settle the issues as speedily as possible and ensure the protection of children and

women.

The Australian family court system covers family law matters in all states

and territories of Australia. Its goal is to deliver excellence in service for children

and families. The Family Law Act deals with the maintenance, custody and

welfare of children of the marriage.

4.4.2 Functions of family courts

In the USA, family courts deal with the marriage agreements of the

couples from living together, acquire property, earn a living and have children.

The family court’s involvement is mostly private and intimate matters and it is

also applicable to the laws governing divorce, child custody, adoption and

division of marital assets. The increase in couples' cohabiting and parenting

children without marriage and the right of marriage of homosexual couples has

changed the landscape of family law in the UK. Family court centres are screened

and accessed by competent staff and proper support of services by the staff and

efficient social workers. In the UK and Australia, family court centres are

functioning people friendly with efficient, transparent infrastructure and systems.

4.4.3 Access to Public services

In the USA, the family courts provide effective services such as

mediation, visitation centres, volunteers, child interview centres, domestic

violence intervention, divorce education and comprehensive services to the

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children. The effective judicial governance, alternative dispute resolution, good

working relationship with other branches of government and justice system,

community outreach programmes are the key strategies of family courts in these

countries. It provides more access and involvement to the public in family court.

In the UK, family courts are following a unified court system and it

always provides help centres, volunteers, etc. to assist the public. Therefore, the

self-represented litigants can file their cases in the family courts. Legal

Information for Family Today, provides essential legal information and

guidelines to the public. The administration of the court, family court advisory

council, universal case management system, community outreach programmes,

family court internship programmes are functioning in an effective manner.

Australia also provides, family action plans and various facilities to

enhance access through information technology, provides case track, live

chatting, video conferencing, web based access to information to cases.

4.4.4 Alternative Dispute Resolution

In the USA, mediation is widely accepted and in the UK, the parties are

encouraged to resolve their disputes out of the courts through mediation. The

recent amendment in Children’s Act 2014 stipulates that before applying to the

family court, the petitioner should prove and provide evidence that they have

conducted mediation.

In Australia, Alternative Dispute Resolution is compulsory in family

relation centres or other family relation services. Counsellors play a vital role in

family consultants within the court structure with less adversarial trials. Legal

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and social work professionals are providing counselling to the parties, which

reduces the mental conflict and stress. The Australian family courts apply

multidisciplinary approaches, effectively combined with the dispute resolution

and protective functions. Since 2011, the Australian government has introduced

compulsory mediation and information assistance.

4.5 Conclusion

Though the Indian family courts provide the alternative dispute resolution

through mediation and counselling, it is inefficient in many occasions due to the

unskilled mediators and inefficient counselling system. The divorce is an

alternative to the marital disputes. However, compared to the family courts in the

USA, the UK and Australia, they give more emphasis on raising the children than

the stability of the family, the Indian family courts give more emphasis to the

stability of family.

In short, though the family court provides alternative dispute resolutions,

everywhere (in the above nation records) a great increase in divorce and family

breakdowns. The same sex marriage, live-in-relationship, non –registration of

marriage, etc., are the new challenges in the family court disputes.