254 In this section, the ALRC asks how children’s involvement in the family law system might be facilitated, and the best ways to ensure children’s views can be heard in both court processes and FDR. The ALRC also asks how any risks to children from involving them in family law disputes can best be managed.
Children and young people and the courts
Question 34 How can children’s experiences of participation in court processes be improved?
Question 35 What changes are needed to ensure children are informed about the outcome of court processes that affect them?
Question 36 What mechanisms are best adapted to ensure children’s views are heard in court proceedings?
255 The Family Law Act recognises the rights accorded to children and young people under the Convention on the Right on the Rights of Child (the CRC). These include participation rights, which afford children the right to freedom of expression (Article 13), access to information (Article 17), and to make their views known and participate in processes relevant to their care (Articles 9 and 12).
256 In furtherance of these rights, the Act requires the family courts to have regard to the views of the child when deciding their best interests. This requirement is qualified by a stipulation that children are not required to express their views.
257 There are several ways in which the courts may receive information about the child’s views. One mechanism is through the appointment of an Independent Children’s Lawyer, whose role is to represent the child’s best interests and ensure any views expressed by the child are put before the court. Another commonly used mechanism involves the preparation of a report for the court by a Family Consultant or external report writer. Family Consultants/report writers are required to ascertain the child’s views and include these views in the report. A third mechanism provided for in the Family Law Act involves the judicial officer meeting directly with the child. This mechanism is rarely used. However, two recent reports have recommended the development of guidelines for judicial interactions with children and young people where judicial officers wish to do this.
258 Evidence gathered by AIFS has indicated that in many matters where an application for final orders is filed, resolution (either by judicial determination or consent before or during trial) occurs without the court having received any independent information about the views of the child or young person. This means that in some matters, a final decision may be made about the parenting arrangements for a child without that child having had an opportunity to participate through any of the currently available mechanisms outlined above.
259 In cases where children have an Independent Children’s Lawyer appointed, research conducted by AIFS and others indicates varied practice in relation to meetings with children and young people and facilitating their participation in proceedings. The AIFS research found that Independent Children’s Lawyers were greatly valued, particularly by judicial officers, for their role in evidence gathering and litigation management, through which they were seen to bring a child focus to proceedings that may otherwise be lacking. However, this and other research has also reported significant disappointment among children and young people in relation to their experience of having an Independent Children’s Lawyer represent them. Among other concerns, children and young people interviewed for the AIFS study indicated a need for more interaction with the Independent Children’s Lawyer representing their interests, including for the purpose of explaining court outcomes and how their views are fed into the court’s decision-making process.
260 The AIFS research, reports that followed it, and early consultations for this Inquiry, have revealed concerns about the existing mechanisms for ascertaining children’s views for court proceedings and called for reforms to these mechanisms and/ or the development of new mechanisms to ensure a positive experience of participation from the perspective of the child or young person. Proposals to the SPLA Inquiry called for the appointment of a children’s advocate, or the development of a model of representation for children that combines legal representation with a therapeutic/clinical approach.
261 Other proposals have included the development of a new agency to ‘oversee the provision of child representation [and] investigatory and expert report writing’, the adoption of a multidisciplinary team approach to child representation, along the lines used by the Children and Family Court Advisory Service (Cafcass) in the UK and the Ontario Office for Children’s Law in Canada, and adoption of a mechanism along the lines of the Scottish F9 Form, which provides an opportunity for children to write directly to the Sheriff (judicial officer) about their views on their future care.
262 The ALRC invites stakeholder input on improvements that might be made to how children are enabled to participate in family court proceedings.
Children and young people and FDR
Question 37 How can children be supported to participate in family dispute resolution processes?
263 There is no statutory obligation to consider the views of the child in FDR processes. However, both child-focused and child-inclusive practice models are used by many FDR providers. Child-focused practice aims to incorporate the practitioner’s knowledge of the research literature on children’s development into the negotiation process. Child-inclusive approaches, on the other hand, incorporate the views of the particular child who is subject to the process through the involvement of a specialist child consultant.The child consultant speaks to the child about their experiences and views and feeds this information back to the parents during the dispute resolution process to assist them in focusing on their child’s needs and best interests in their negotiations.
264 Apart from initial positive evaluation evidence about the child-inclusive approach, there is little systematic empirical research about its application in the system currently. Some information suggests that child-focused practice occurs more often and child-inclusive practice less often, possibly because of the resource intensive nature of the latter approach.
265 Victoria Legal Aid includes a child-inclusive element, called Kids Talk, in its legally-assisted FDR program. An internal evaluation of the program has found that, where its use was appropriate, Kids Talk provided children and young people with a ‘voice’ in the FDR process and was successful in focusing the attention of parents and lawyers on the child’s needs and perspectives. Kids Talk is only used in matters in which parents are assessed as ‘willing and able’ to take their children’s perspectives into account. This approach is in line with research findings that support assessment of parental capacity to take their children’s views on board as the deciding factor in determining the suitability of child-inclusive practice in any matter. While screening of this nature may be necessary for protecting the safety of children in matters where their parents or carers lack this capacity, it raises further questions about how these children might also be supported to participate in the FDR process.
266 The ALRC invites stakeholder input about the use and benefits of child-inclusive FDR processes, including culturally appropriate models.
Children’s participation and risks to children
Question 38 Are there risks to children from involving them in decision-making or dispute resolution processes? How should these risks be managed?
267 Cases involving family violence or other safety concerns for children raise particular issues in relation to children’s participation in court proceedings and dispute resolution processes. As noted above, the participation of children in family law proceedings gives effect to Australia’s obligations under the CRC. However, complicating the child’s right to participate is a concern for children whose ability to exercise agency may be highly constrained by their family circumstances, such as environments characterised by violence or abuse. This circumstance creates a difficult ‘balancing act’ for practitioners in the context of both court proceedings and dispute resolution processes, between upholding the child’s right to participate, and protecting the child from harm that may be caused through participation.
268 Concerns about how to support children’s safe participation in legal proceedings have gained prominence in policy debates in several jurisdictions in recent years. Reflecting this concern, some lawyers use specialist counselling services, which have dedicated domestic violence child therapists, to speak with children.
269 This issue has also affected the practices of Independent Children’s Lawyers. Some Independent Children’s Lawyers are wary of speaking to children in this context, so as to avoid eliciting information that might mean they need to become a witness in the case, and out of concern that the child or a parent might suffer retaliation by the parent who has used violence if the child discloses the violence. A related concern is that children in such cases may be overburdened or further traumatised by being interviewed by too many professionals. Other Independent Children’s Lawyers, however, consider that children and young people who have been exposed to family violence or subjected to abuse have a particularly acute need to exercise agency through participation.
270 A similar contention is evident in the field of child-inclusive practice in FDR services when matters involve family violence. Some practitioners have argued that child-inclusive practice has a significant role to play in this context, emphasising that children and young people are important sources of information about their circumstances, including the presence of risk. Other practitioners hold the view that the application of child-inclusive practice in these circumstances may intensify the pressures on the child and expose them to retribution from the perpetrator for speaking out.
271 While these concerns tend to focus on matters involving family violence, consideration of methods to facilitate children’s safe participation in court proceedings and dispute resolution processes are relevant to all matters in which a child is the subject of a dispute. Exposure to ongoing parental conflict in the post-separation period can have significant negative impacts on a child’s development and wellbeing. Children’s safety and wellbeing may also be put at risk where their participation occurs in the context of protracted legal proceedings or repeated parenting applications. This may occur in the context of misuse of process, discussed above in the section, ‘Resolution and adjudication processes’.
272 The ALRC seeks stakeholder input about best to manage any risk to children from involving them in decision-making or dispute resolution processes.
Barriers to children’s involvement in the family law system
Question 39 What changes are needed to ensure that all children who wish to do so are able to participate in family law system processes in a way that is culturally safe and responsive to their particular needs?
273 Early consultations indicated a view that any reforms aimed at improving children’s experiences of participation in the courts and other dispute resolution processes should be sensitive and responsive to the fact that, like adults, the needs of individual children differ. This issue is particularly pertinent for children who may require culturally-specific support, such as Aboriginal and Torres Strait Islander children and children from culturally and linguistically diverse communities, and for children with disability.
274 Children may be affected by the same barriers in accessing services that apply more broadly in their communities (see discussion above in the section, ‘Access and engagement’). For example, research has revealed that, like adults with disability, children with disability can face particular barriers in seeking assistance to deal with abuse. Children may also have needs and experiences that are unique from those of their parents and carers. For example, the Koorie Youth Council notes that the role of an Aboriginal child or young person in their family or community may differ from that of a child under a western cultural framework, and that this may lead to inappropriate assumptions or assessments of their needs or experiences if applied by mainstream services lacking cultural competency. Children in newly arrived migrant families may face unique challenges to their participation in circumstances where they have adapted more quickly to life in Australia than their parents, for example by learning English, which can affect the power dynamic between children and their parents and lead to intergenerational conflict.
275 The ALRC is interested in comment on changes that might be needed to ensure that all children who wish to participate in the family law system are supported to do so.
Learning from the experiences of children and young people
Question 40 How can efforts to improve children’s experiences in the family law system best learn from children and young people who have experience of its processes?
276 Existing research suggests that the reflections and insights of children about their experiences of family law and child protection systems can be critical to informing the design of services and policy. Stakeholders to this Inquiry stressed the need to listen to and learn from the perspectives of children and young people who have experienced the family law system in developing any reforms to support the involvement of children in family law processes.
277 In considering how best to learn from the perspectives of children and young people, the ALRC notes the Family Justice Young People’s Board (FJYPB) in the UK. The FJYPB is a group of over 50 children and young people who have either had direct experience of the family justice system or have an interest in children’s rights and the family courts. These children and young people support the work of the Family Justice Board in seeking to improve the family justice system from a child-centred and child-inclusive perspective.
278 The ALRC seeks stakeholder input about using the perspectives of children and young people to inform developments in the family law system.
Family Law Act 1975 (Cth) s 60CC(3)(a).
Ibid s 60CE.
Family Law Council, Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems—Final Report (2016); Kylie Beckhouse, ‘To Investigate Legal Representation Schemes for Children in the US, Canada and the UK—Administration, Delivery and Innovation’ (Churchill Foundation, 2015).
Rae Kaspiew et al, ‘Court Outcomes Project: Evaluation of the 2012 Family Violence Amendments’ (Australian Institute of Family Studies, 2015) 26–9.
Rae Kaspiew et al, ‘Independent Children’s Lawyers Study’ (Final Report, Australian Institute of Family Studies, 2013); Felicity Bell, ‘Meetings Between Children’s Lawyers and Children Involved in Private Family Law Disputes’ (2016) 28(1) Child and Family Law Quarterly 5.
Kaspiew et al, ‘Independent Children’s Lawyers Study’, above n 330.
Ibid; Patrick Parkinson and Judy Cashmore, The Voice of a Child in Family Law Disputes (Oxford University Press, 2008).
Kaspiew et al, ‘Independent Children’s Lawyers Study’, above n 330, 165–7.
Kylie Beckhouse, above n 328.
House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, above n 13, [6.119].
Kylie Beckhouse, above n 328.
Ibid rec 6.
Rachel Birnbaum and Nicholas Bala, ‘Views of the Child Reports: The Ontario Pilot Project— Research Findings and Recommendations’ (Queen’s Law Research Paper Series No 2017-092, Queen’s University, 2017).
See on this, Kirsteen Mackay, ‘The Treatment of the Views of Children in Private Law Child Contact Disputes Where There Is a History of Domestic Abuse’ (Scotland’s Commissioner for Children and Young People, 2013).
Nola Webb and Lawrie Moloney, ‘Child-Focused Development Programs for Family Dispute Professionals: Recent Steps in the Evolution of Family Dispute Resolution Strategies in Australia’ (2003) 9(1) Journal of Family Studies 23; Lawrie Moloney and Jennifer McIntosh, ‘Child-Responsive Practices in Australian Family Law: Past Problems and Future Directions’ (2004) 10(1) Journal of Family Studies 71.
Moloney and McIntosh, above n 341.
Jennifer McIntosh, ‘Child Inclusion as a Principle and as Evidence-Based Practice: Applications to Family Law Services and Related Sectors’ (AFRC Issues Paper No 1, Australian Family Relationships Clearinghouse, 2007).
Jennifer E McIntosh, Caroline M Long and Yvonne D Wells, ‘Children Beyond Dispute: A Four Year Follow up Study of Outcomes from Child Focused and Child Inclusive Post-Separation Family Dispute Resolution’ (Final Report, Attorney General’s Department (Cth), 2009).
The Allen Consulting Group, above n 39, 47.
Victoria Legal Aid, Kids Talk <www.legalaid.vic.gov.au/get-legal-services-and-advice/family-dispute-resolution-victoria-legal-aid/kids-talk>.
Michele Harris, ‘An Evaluation of Victoria Legal Aid’s Kids Talk Program’ (Victoria Legal Aid, 2012).
Victoria Legal Aid, above n 346.
Jennifer E McIntosh and Caroline M Long, ‘Children Beyond Dispute: A Prospective Study of Outcomes from Child Focused and Child Inclusive Post-Separation Family Dispute Resolution’ (Final Report, Attorney-General’s Department (Cth), 2006).
E Kay M Tisdall, ‘Subjects with Agency? Children’s Participation in Family Law Proceedings’ (2016) 38(4) Journal of Social Welfare and Family Law 362.
Felicity Bell, ‘Barriers to Empowering Children in Private Family Law Proceedings’ (2016) 30 International Journal of Law, Policy and the Family; Karine Hamilton and Pamela Henry, ‘The Inclusion of Children in Family Dispute Resolution in Australia: Balancing Welfare versus Rights Principles’ (2012) 20(4) The International Journal of Children’s Rights 584.
Cathy Humphreys and Caroline Bradbury-Jones, ‘Domestic Abuse and Safeguarding Children: Focus, Response and Intervention’ (2015) 24(4) Child Abuse Review 231.
See, eg, Carinity Communities—Talera <www.carinity.org.au/communities/counselling-talera>.
Kaspiew et al, ‘Independent Children’s Lawyers Study’, above n 330.
Rae Kaspiew et al, Evaluation of a Pilot of Legally Assisted and Supported Family Dispute Resolution in Family Violence Cases, Final Report (Australian Institute of Family Studies, 2012); Sarah Dobinson and Rebecca Gray, ‘A Review of the Literature on Family Dispute Resolution and Family Violence: Identifying Best Practice and Research Objectives for the Next Ten Years’ (2017) 30(3) Australian Journal of Family Law 180.
Michele Harris, above n 347, 5.
Jennifer McIntosh, ‘Enduring Conflict in Parental Separation: Pathways of Impact on Child Development’ (2003) 9(1) Journal of Family Studies 63.
Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol II, 108.
Ibid vol II, 112.
Julie Taylor et al, ‘Deaf and Disabled Children Talking about Child Protection’ (The University of Edinburgh Child Protection Research Centre, 2015).
Koorie Youth Council, Submission No 906 to Royal Commission into Family Violence (Vic), Submission from the Koorie Youth Council to the Royal Commission into Family Violence (June 2015).
Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol II, 114.
Family Law Council, Improving the Family Law System for Clients from Culturally and Linguistically Diverse Backgrounds (2012) 37.
Jane Fortin, Joan Hunt and Lesley Scanlan, Taking a Longer View of Contact: The Perspectives of Young Adults Who Experienced Parental Separation in Their Youth (Sussex Law School, 2012); Kirsteen Mackay, above n 340; Julie Taylor et al, above n 360.
Cafcass, Family Justice Young People’s Board <www.cafcass.gov.uk/family-justice-young-peoples-board/>.