Contemporary issues in Australian family law: Do we need a more unified and interventionist judicial model

Recent decisions of the Family Court of Australian reflect concerns over the adversarial nature of the legal process. The processes and procedures of the judicial system militate against a detailed examination of the issues and rights of the parties in dispute. The limitations of the family law framework are particularly demonstrated in disputes over the custody of children where the Court has tended to neglect the rights and interests of the primary carer. An alternative "unified family court" framework will be examined in which the Court pursues a more active and interventionist approach in the determination of family law disputes.

Are the financial services external complaints resolution schemes subject to judicial review?

In Australia seven schemes (apart from the Superannuation Complaints Tribunal) provide alternative dispute resolution services for complaints brought by consumers against financial services industry members. Recently the Supreme Court of New South Wales held that the decisions of one scheme were amenable to judicial review at the suit of a financial services provider member and the Supreme Court of Victoria has since taken a similar approach. This article examines the juristic basis for such a challenge and contends that judicial review is not available, either at common law or under statutory provisions. This is particularly the case since Financial Industry Complaints Service Ltd v Deakin Financial Services Pty Ltd (2006) 157 FCR 229; 60 ACSR 372 decided that the jurisdiction of a scheme is derived from a contract made with its members. The article goes on to contend that the schemes are required to give procedural fairness and that equitable remedies are available if that duty is breached.

Outrage management in cases of sexual harassment as revealed in judicial decisions

Sexual harassment can be conceptualized as a series of interactions between harassers and targets that either inhibit or increase outrage by third parties. The outrage management model predicts the kinds of actions likely to be used by perpetrators to minimize outrage, predicts the consequences of failing to use these tactics—namely backfire, and recommends countertactics to increase outrage. Using this framework, our archival study examined outrage-management tactics reported as evidence in 23 judicial decisions of sexual harassment cases in Australia. The decisions contained precise, detailed information about the circumstances leading to the claim; the events which transpired in the courtroom, including direct quotations; and the judges' interpretations and findings. We found evidence that harassers minimize outrage by covering up the actions, devaluing the target, reinterpreting the events, using official channels to give an appearance of justice, and intimidating or bribing people involved. Targets can respond using countertactics of exposure, validation, reframing, mobilization of support, and resistance. Although there are limitations to using judicial decisions as a source of information, our study points to the value of studying tactics and the importance to harassers of minimizing outrage from their actions. The findings also highlight that, given the limitations of statutory and organizational protections in reducing the incidence and severity of sexual harassment in the community, individual responses may be effective as part of a multilevel response in reducing the incidence and impact of workplace sexual harassment as a gendered harm.

Indigeneity and the judicial decision to imprison : a study of Western Australia’s higher courts

Internationally, sentencing research has largely neglected the impact of Indigeneity on sentencing outcomes. Using data from Western Australia’s higher courts for the years 2003–05, we investigate the direct and interactive effects of Indigenous status on the judicial decision to imprison. Unlike prior research on race/ethnicity in which minority offenders are often found to be more harshly treated by sentencing courts, we find that Indigenous status has no direct effect on the decision to imprison,after adjusting for other sentencing factors (especially past and current criminality).However, there are sub-group differences: Indigenous males are more likely to receive a prison sentence compared to non-Indigenous females. We draw on the focal concerns perspective of judicial decision making in interpreting our findings.

Listening in to others : in between noise and silence

Since the launch of the ‘Clean Delhi, Green Delhi’ campaign in 2003, slums have become a significant social and political issue in India’s capital city. Through this campaign, the state, in collaboration with Delhi’s middle class through the ‘Bhagidari system’ (literally translated as ‘participatory system’), aims to transform Delhi into a ‘world-class city’ that offers a sanitised, aesthetically appealing urban experience to its citizens and Western visitors. In 2007, Delhi won the bid to host the 2010 Commonwealth Games; since then, this agenda has acquired an urgent, almost violent, impetus to transform Delhi into an environmentally friendly, aesthetically appealing and ‘truly international city’. Slums and slum-dwellers, with their ‘filth, dirt, and noise’, have no place in this imagined city. The violence inflicted upon slum-dwellers, including the denial of their judicial rights, is justified on these accounts. In addition, the juridical discourse since 2000 has ‘re-problematised slums as ‘nuisance’. The rising antagonism of the middle-classes against the poor, supported by the state’s ambition to have a ‘world-class city’, has allowed a new rhetoric to situate the slums in the city. These representations articulate slums as homogenised spaces of experience and identity. The ‘illegal’ status of slum-dwellers, as encroachers upon public space, is stretched to involve ‘social, cultural, and moral’ decadence and depravity. This thesis is an ethnographic exploration of everyday life in a prominent slum settlement in Delhi. It sensually examines the social, cultural and political materiality of slums, and the relationship of slums with the middle class. In doing so, it highlights the politics of sensorial ordering of slums as ‘filthy, dirty, and noisy’ by the middle classes to calcify their position as ‘others’ in order to further segregate, exclude and discriminate the slums. The ethnographic experience in the slums, however, highlights a complex sensorial ordering and politics of its own. Not only are the interactions between diverse communities in slums highly restricted and sensually ordained, but the middle class is identified as a sensual ‘other’, and its sensual practices prohibited. This is significant in two ways. First, it highlights the multiplicity of social, cultural experience and engagement in the slums, thereby challenging its homogenised representation. Second, the ethnographic exploration allowed me to frame a distinct sense of self amongst the slums, which is denied in mainstream discourses, and allowed me to identify the slums’ own ’others’, middle class being one of them. This thesis highlights sound – its production, performances and articulations – as an act with social, cultural, and political implications and manifestations. ‘Noise’ can be understood as a political construct to identify ‘others’ – and both slum-dwellers and the middle classes identify different sonic practices as noise to situate the ‘other’ sonically. It is within this context that this thesis frames the position of Listener and Hearer, which corresponds to their social-political positions. These positions can be, and are, resisted and circumvented through sonic practices. For instance, amplification tactics in the Karimnagar slums, which are understood as ‘uncultured, callous activities to just create more noise’ by the slums’ middle-class neighbours, also serve definite purposes in shaping and navigating the space through the slums’ soundscapes, asserting a presence that is otherwise denied. Such tactics allow the residents to define their sonic territories and scope of sonic performances; they are significant in terms of exerting one’s position, territory and identity, and they are very important in subverting hierarchies. The residents of the Karimnagar slums have to negotiate many social, cultural, moral and political prejudices in their everyday lives. Their identity is constantly under scrutiny and threat. However, the sonic cultures and practices in the Karimnagar slums allow their residents to exert a definite sonic presence – which the middle class has to hear. The articulation of noise and silence is an act manifesting, referencing and resisting social, cultural, and political power and hierarchies.

Ethnography in the kindergarten:examining childrens'play experiences

This paper describes an ethnographic study completed within a kindergarten environment with the view of gaining insights into the development of new technology for young children. Ethnography within HCI has primarily focused on studies of work practices. This project explored the effectiveness of ethnography in supporting the design of playful technology for a constantly changing, creative, and (sometimes) messy environment. The study was effective in drawing out patterns in observations and as such provides useful suggestions for the development of technology for kindergarten settings.

Youth theatre and the articulation of cultural capital : refocusing Bourdieu through ethnography

This study of working-class and middle-class youth theatre workshops examines the processes through which this cultural form is appropriated by different class groups. Whereas the middle-class workshop proceeded efficiently and harmoniously, the working-class group resisted a number of institutional constraints traditionally associated with play rehearsal and performance. The processes of such symbolic struggle in the working-class group appeared to differ from Bourdieu's account of cultural domination. The article explores the explanatory contribution of the ethnographic case study to the analysis of the class basis of cultural tastes and practices and suggest that Bourdieu's account of class relations would gain from inclusion of this level of analysis. The situated study of the youth theatre workshops suggests that at this level, there is possibly more scope for symbolic struggle between the classes than was found by Bourdieu.

The role of legislative, executive and judicial mechanisms in ensuring a fair and effective asylum process

A good faith reading of core international protection obligations requires that states employ appropriate legislative, administrative and judicial mechanisms to ensure the enjoyment of a fair and effective asylum process. Restrictive asylum policies instead seek to ‘denationalize’ the asylum process by eroding access to national statutory, judicial and executive safeguards that ensure a full and fair hearing of an asylum claim. From a broader perspective, the argument in this thesis recognizes hat international human rights depend on domestic institutions for their effective implementation, and that a rights-based international legal order requires that power is limited, whether that power is expressed as an instance of the sovereign right of states in international law or as the authority of governments under domestic constitutions.

Estoppel in the face of consumer protection in land transactions- judicial reasoning or judicial intuition

Nationally, there is much legislation regulating land sale transactions, particularly in relation to seller disclosure of information. The statutes require strict compliance by a seller failing which, in general, a buyer can terminate the contract. In a number of instances, when buyers have sought to exercise these rights, sellers have alleged that buyers have either expressly or by conduct waived their rights to rely upon these statutes. This article examines the nature of these rights in this context, whether they are capable of waiver and, if so, what words or conduct might be sufficient to amount to waiver. The analysis finds that the law is in a very unsatisfactory state, that the operation of those rules that can be identified as having relevance are unevenly applied and concludes that sellers have, in the main, been unsuccessful in defeating buyers' statutory rights as a result of an alleged waiver by those buyers.

Practice and Procedure. Self-executing order - construction - whether further judicial at required for self-executing order to take effect

In Mango Boulevard Pty Ltd v Spencer [2010] QCA 207, a self-executing order had been made in consequence of continuing default by parties to the proceedings in meeting their disclosure obligations. The case involved several questions about the construction and implications of the self-executing order. This note focuses on the aspects of the case relating to that order.