Family Court practice and procedure: the right of the child to be heard


16.27 Children are often assumed to be unduly traumatised by being directly involved in litigation concerning the breakdown of their parents’ relationship. They are said to be manipulated by parents into giving evidence or expressing wishes favourable to one parent or even to manipulate the parents themselves to achieve their own ends. It is argued that the court must be sensitive to the difference between what a child wants and what he or she needs and that, while a child may express a wish to participate, this may not be in his or her long term best interest.[69] One commentator has suggested that, by involving children in family disputes, children are not being given the opportunity to participate but rather the responsibility to decide something their parents cannot agree upon themselves.[70] These remain factors for concern.

16.28 However, there is a difference between asking a child to participate directly or to give evidence in relation to disputes of fact (which should generally be avoided)[71] and allowing a child the opportunity to express his or her wishes on a particular matter. Children’s participation in Family Court proceedings requires flexibility to ensure that the level and kind of participation is suitable for the needs and capacities of the individual child.

16.29 Children should not be required or pressured to do so but mature children should be able to participate appropriately, even to the extent of becoming witnesses or parties in litigation, where they freely indicate a desire to do so.[72] In those cases, the involvement of children in the family decision-making process can be of real benefit to the children, to the court and ultimately to achieving the best decision.[73] Failure to hear directly from children in proceedings in which they are the subject is said to be ‘indicative of a conservatism’[74] and to involve ‘notions consistent with children being possessions rather than humans’.[75] CROC requires the child to be provided with the opportunity to be heard in any judicial or administrative proceedings affecting him or her either directly or through a representative.[76]

16.30 If children are not directly involved in family law proceedings as witnesses or parties the rule against hearsay must be, and is, relaxed.[77] This reduces the potential for legal argument as to admissibility of evidence of children’s views and provides flexibility to ensure that the best interests of children are promoted in each case.[78] It has led to the introduction of a number of mechanisms for hearing from children without directly involving them. Children are commonly heard in family law litigation through expert witnesses, court counsellors’ reports or though a child’s representative appointed for that purpose.[79]

The role of the judge

16.31 Many submissions to the Inquiry suggested that the adversarial model of litigation is inappropriate for the Family Court and particularly for children’s matters.[80]

The adversarial mode frequently sets the stage for the children to become the battleground and/or weapons in the parental conflict. As victims, their lives may become distorted permanently.[81]

When the Family Court was first established, it was intended that it avoid the problems associated with the traditional adversarial system. However, some early cases counselled against relaxation of the adversarial model.[82] More recently, the court has held that ‘[p]roceedings in relation to the welfare of children are not strictly adversarial…’[83]

16.32 Considerable flexibility exists in children’s cases[84] and the available mechanisms ought to be appropriately utilised.[85] Family Court judges are given more latitude in children’s matters than judges in most other courts to inquire into the issues to be determined.[86] The judges are also given more scope than those in other courts to ascertain the best interests of the child by asking questions of witnesses of their own motion.[87] They are not limited to the material produced by the parties but can suggest that the parties call additional evidence or follow a particular line of questioning.[88] However, a judge’s decision may be overturned on appeal if the Full Court considers that the judge was too interventionist and interfered with counsels’ conduct of the case.[89] Activist judging is promoted in all jurisdictions and has been considered in ALRC Issues Paper 20, Rethinking Federal Civil Proceedings.[90]

Recommendation 141 Judges and magistrates deciding family law matters should be encouraged to intervene appropriately to assist the determination of the best interests of the child in Family Court children’s matters.

Implementation. The Family Court should consider implementing a training program for judges and, with State and Territory agreement, magistrates exercising federal family jurisdiction on more inquisitorial approaches to determining the best interests of the child. The court should also consider preparing suitable guidelines to assist judicial officers in this regard.

Simplified procedures

16.33 In January 1996 the Family Court introduced simplified procedures.[91] They were designed to reduce the complexity and cost of proceedings[92] and to encourage an attitudinal shift from litigation to negotiation.[93] They were adopted in recognition of the fact that only 5% of cases commenced in the Family Court proceed to trial.[94]

16.34 The procedures require that initiating applications contain minimal information such as the necessary details about the parties and the orders sought. This means that it can sometimes be difficult to determine what issues are in dispute even at the directions hearing.[95] This can be problematic if issues of child abuse are involved in the matter but are not disclosed to the registrar at the directions hearing or if there is a question of whether a legal representative should be appointed for the child for other reasons. It also makes it difficult to determine whether a family report should be prepared.[96] The procedures may therefore render children invisible at the early stages of the litigation. The Family Court has established a committee to monitor the workings of the procedures.[97]

Recommendation 142 Through consultation and research, the Family Court should determine how best to assess at the earliest possible time the need to appoint a legal representative for the child.

Implementation. The Family Court committee monitoring the simplified procedures should conduct such an investigation.

Family reports

16.35 If the care, welfare and development of a child is relevant to proceedings under the Family Law Act, the court may direct a family and child counsellor or welfare officer to prepare a family report on such matters as the court thinks desirable.[98] Family reports are prepared in almost 60% of contested cases involving children that proceed to trial.[99] They are commonly ordered where the age and maturity of the child suggests that he or she would be capable of articulating perceptions and wishes and also in cases where child abuse is alleged.[100] The counsellor or welfare officer who prepared the report is generally required to be available for cross-examination on it.[101]

16.36 These reports are highly influential. They prompt settlement or are followed by judges in 76% of cases for which they are prepared.[102] A current study in the Canberra and Melbourne registries of the Family Court indicates

…the most frequent reference of the judge and judicial registrar in reasons for the decision, apart from the individual’s circumstance and credibility, was to the findings of the family report.[103]

Family reports were described to the Inquiry as

…one of the primary and purest ways in which a child may be heard in Family Law proceedings and their wishes ascertained without the need for the child to give direct evidence.[104]

DRP 3 suggested that family reports are a useful tool and that their use is integral to the increasing focus on children’s participation in matters that affect them.[105] For many children, family reports provide a suitable vehicle for the expression of their wishes and opinions without burdening them with decision making responsibility.[106]

16.37 Submissions to the Inquiry suggested that some Family Court counsellors lack the expertise to prepare family reports in cases where allegations of child abuse have been made.[107] In many cases where the State or Territory care and protection department does not investigate allegations of abuse adequately or at all the family report becomes, in effect, a child protection assessment.[108] However, as family reporter preparers are attached to the court, they are generally aware of the legislative requirements of the decision makers and are able to be held accountable by the court.

16.38 DRP 3 suggested that the stage at which family reports are prepared should be reassessed.[109] Generally, family reports are ordered at the prehearing conference no earlier than 14 weeks before the hearing to allow the report to be produced three weeks prior to the hearing.[110] This may be 12 to 18 months after proceedings have begun. Many submissions agreed that reports should be prepared earlier in the process than they are at present[111] and suggested that family reports can be useful in determining appropriate interim orders.[112] Delays in reaching the final hearing in the court mean that interim orders are frequently decisive in the case. The provision of reports at this stage gives a sounder base for these decisions. It was also suggested that earlier reports will encourage earlier settlements.[113] The Family Court has noted in this respect that reports ‘…are not prepared for the purpose of settlement, even though they may be used for such ends’.[114]

16.39 On the other hand, court resources were cited by some as a reason why family reports are not ordered earlier in the proceedings.[115] In addition, family reports are said to be intrusive and may be traumatic for children.[116] National Legal Aid summed up these concerns in noting

…there is currently up to a two year wait before a Hearing in some Registries so there exists a fine balance between issuing Family Reports too early. Early Reports may assist in bringing about early settlements, but if a matter does not settle and a Report then needs to be updated at a later time, the question of costs arise and possible systems abuse of children.[117]

16.40 On balance, the Inquiry considers that the Family Court should order family reports earlier in proceedings. An early report may be used as the basis for a later report if needed. It is particularly important that court counsellors become involved in the process earlier than they do at present if they are to play an expanded role in investigating and providing information to the court on the best interests of the child. At recommendation 80 we recommended that the role of court counsellors providing reports should be expanded to include greater investigative functions. This was made in the context of the recommendation that representatives for children should conduct the litigation, wherever possible, on the directions of the child.[118] An expanded role for court counsellors as investigators of the child’s objective best interests requires the early involvement of the report writer.

Recommendation 143 The Family Court should review the timing of ordering family reports to ensure that the report can be used to promote settlement while avoiding unnecessary procedures and distress for children and families.

Implementation. The Family Court should conduct a review of its family report procedures and amend the practice accordingly.


16.41 The court may also receive evidence of the views of children, without hearing from children directly, by the use of outside experts. Expert evidence may be introduced by a number of avenues. The court may appoint experts to inquire into and report on any issue of fact or opinion.[119] These experts may be appointed on the application of any party or on the court’s own motion. The expert is to be agreed upon by the parties or may be nominated by the court.[120] The court also has the option of seeking the assistance of assessors.[121]

16.42 In its submission on DRP 3 the Family Court agreed that on occasions individual expert reports are requested and ordered under O 30A instead of family reports where a family report would be satisfactory. These orders may sometimes be made as a result of resource constraints and may be made in inappropriate circumstances.[122] National Legal Aid pointed out that increasing the use of expert evidence has cost implications for legal aid as it is often required to fund these reports.[123]

16.43 Wherever the issues in contention are appropriately within the areas of expertise of court counsellors, family reports should be used to provide the court with evidence about family functioning and dynamics and the wishes of the children concerned.[124] However, there will be many areas outside the discipline and training of court counsellors.[125] As the Family Court noted in its submission, the issues to be addressed will determine the appropriate professional for the task.[126] A Case Management Guideline could clarify these matters.

16.44 The Family Law Act provides for the appointment of an assessor to assist the court in hearing and determining proceedings or particular parts of proceedings.[127] Assessors were intended to assist the court to resolve disputes quickly and efficiently. Matters were to be referred to assessors for examination and report back to the court.[128] Assessors have not been widely used and there are no cases reporting their use. The court could benefit from exploring the greater use of assessors in children’s cases.

16.45 Parties may also obtain independent expert evidence in limited circumstances and subject to direction from the court.[129] A particular problem regarding these experts occurs in cases where child abuse is alleged by a party or the child. In these cases, children are often examined or interviewed by the different experts hired by the parties, in addition to court counsellors and court-approved expert witnesses. The Family Law Act provides that if, after the initial examination or interview of the child by an expert witness, a child is interviewed or examined by any other expert without prior leave of the court, evidence of the examination is not admissible in any proceedings under the Act.[130] The Family Court suggested that this provision should be strengthened and that a recommendation be made to prevent interviews being carried out without the leave of the court. It suggested that merely rendering inadmissible evidence obtained from an unsanctioned examination does not sufficiently protect the child.[131] Evidence to the Inquiry suggested that, despite the current provisions in the Family Law Act, children in this situation may be subject to systems abuse due to over-interviewing by numerous expert witnesses.[132]

16.46 Where an application has been made to have a child further examined or interviewed by more than one expert witness, the Family Law Act sets out the factors that the court must consider in deciding whether to grant leave to have the child further examined.[133] These factors do not specifically include the opinion or wishes of the child although the court is able to consider ‘…any other matter that the court thinks is relevant’.[134] DRP 3 proposed that the section be amended to include a specific consideration of the wishes of the child in deciding whether or not to allow the child to be examined by an expert.[135] The Family Law Reform and Assistance Association supported that draft recommendation.[136]

16.47 National Legal Aid pointed out that the court already has power to consider any other matter it thinks relevant in deciding whether to have the child further examined.[137] Section 68F of the Family Law Act already specifically states that the wishes of the child should be taken into account in considering the best interests of the child. National Legal Aid considered that this allows the court to take the wishes of the child into account when considering whether to have the child interviewed. However, section 68F does not specifically require the court to have regard to the best interests of the child in considering whether to grant leave to have the child interviewed. Therefore, there is some uncertainty as to whether the requirement to have regard to the wishes of the child is implicitly imported on that ground.[138] Where a child is to be interviewed more than once, the child is necessarily involved in the proceedings and has the right to have his or her views taken into account.

Recommendation 144 More effective use should be made of the power under O 30A of the Family Law Rules to appoint experts to assist the court by inquiring into and reporting on issues concerning children.

Implementation. The Family Court should give consideration to the present and potential use of these rules and consult with the legal profession and expert witnesses concerning effective use of experts.

Recommendation 145 The greater use of assessors in children’s matters in the Family Court should be explored and, if appropriate, encouraged.

Implementation. The Family Court should consider making more use of this procedure and preparing suitable case management guidelines.

Recommendation 146 The Family Court should collect and maintain statistics concerning the number of times experts, including Family Court counsellors, interview each child in each litigated matter in the Family Court. These statistics should be used to conduct a regular assessment of whether children are over-interviewed during family law proceedings.

Implementation. The Family Court should establish a database, collect these statistics and publish them in its Annual Report.

Recommendation 147 In deciding whether to grant an application that a child be interviewed or examined by an expert, the court should consider any wishes expressed by the child as well as the other specified considerations.

Implementation. Section 102A(3) of the Family Law Act should be amended to this effect.

Parenting plans

16.48 Parenting plans are written agreements between parents on matters concerning their children.[139] They are intended to encourage co-operation between the parties in preference to litigation. They may deal with residence, contact, maintenance or any other aspect of parental responsibility for a child.[140] Parents are encouraged to, but need not necessarily, regard the best interests of the child as paramount.[141] There is no provision in the Family Law Act for the involvement of children in the development of a parenting plan.

16.49 A parenting plan may be registered in the Family Court if the court considers registration appropriate having regard to the best interests of the child.[142] In deciding whether to register a parenting plan, the court need not determine the child’s best interests in accordance with the specific statutory principles set out in section 68F(2). To be registered in court, parenting plans must have been developed after consultation with a family and child counsellor or following independent legal advice as to the meaning and effect of the plan.[143] Once a plan is registered, the provisions operate as though they are orders of the court.[144] Registration of parenting plans may be unilateral. Between July and September 1996, 179 parenting plans were registered in the Family Court of Australia and the Family Court of Western Australia.[145]

16.50 These registration requirements may mean that parenting plans do not promote appropriately flexible parenting arrangements which are able to adapt with changed circumstances over time.[146] Parenting plans should be an effective alternative to court orders,[147] encouraging parents to take a co-operative long term approach to their children’s welfare, and able to accommodate changes in circumstance. The National Children’s and Youth Law Centre pointed out that parents may be unable to focus properly on the wishes or interests of their children in the emotional turmoil of separation.[148] Another submission suggested that a review mechanism should be established to take account of changed circumstances.[149]

16.51 In its response to DRP 3, the Attorney-General’s Department noted that it ‘…supports the aim of [the draft recommendation] that the provisions allowing registration of parenting plans be monitored and reviewed over the next 12 months’.[150] The Department suggested that a consideration of whether, and to what extent, registration prevents or inhibits flexible parenting arrangements may best be conducted as a longitudinal study by the Family Law Council. As an initial step, a sample of registered parenting plans may be usefully scrutinised to determine whether their provisions, on their face, are likely to inhibit flexible parenting.

16.52 DRP 3 noted that the legislation makes no provision for children to be involved in developing a parenting plan. They may be the subject of a plan but need not be a party to it. It suggested that parents should be encouraged to involve their children in the development of parenting plans and that counsellors should also involve children as appropriate. National Legal Aid disagreed with the draft recommendation on the basis that ‘…it would be too open to abuse and the further manipulation of children’.[151] In its submission on IP 18, the federal Attorney-General’s Department noted

[t]here are no specific provisions which would guarantee such participation. It would only occur to the extent that the professionals involved seek to involve them. Parenting plans are designed for the assistance of separating parents at a low level of conflict. In such circumstances it is quite likely that they would be open to involving children in the process.[152]

16.53 In any situation of family breakdown there is potential for the parents to manipulate or inappropriately involve of children. Parenting plans are essentially directed to co-operative parents who ought to take account of the opinions and wishes of the children concerned. The involvement of legal representatives or counsellors in the promotion of co-operative arrangements between parents should assist parents to focus on the needs, perspectives and best interests of their children. Children’s wishes would, at first instance, be relayed to court counsellors by the parents. Where the counsellor is satisfied that the parents are sufficiently co-operative in the best interests of their children to ensure that children are not subject to inappropriate manipulation, counsellors should generally consider speaking to verbal children to ensure they understand the arrangements proposed.

16.54 The federal Attorney-General’s Department has expressed support for these recommendations but noted that children’s involvement ‘…should be done very carefully, and the responsibility for decision making should not be inappropriately placed on the child’.[153] We agree with this caveat but suggest that a culture of appropriately involving children in the choices to be made in developing parenting plans should be fostered. Children who are capable of and willing to have a say in their family circumstances should have the opportunity to do so.[154] This should be formally recognised in legislation to ensure the opportunity is afforded to children to participate in appropriate cases.

Recommendation 148 The Family Law Council should monitor the operation of parenting plans over the next 12 months and assess

  • whether and to what extent registration is likely to prevent or inhibit flexible parenting arrangements

  • whether registered parenting plans are based on appropriate and careful assessments of the best interests of the children by parents

  • whether the court, in registering parenting plans, in fact considers any or all of the relevant principles of s 68F(2) of the Family Law Act.

In the light of this research, the Attorney-General should review the provisions allowing registration of parenting plans.

  • If the research indicates that registration of parenting plans is likely to prevent flexible approaches to parenting, the Family Law Act should be amended to remove or modify the registration provisions.

  • If parenting plans continue to be registrable, rules specifying the information that must be filed along with the plan should require sufficient detail to allow the court to scrutinise the plan closely and ensure that the long term best interests of the child are protected.

Implementation. The Family Law Council should undertake this research and the Attorney-General and the Family Court should take appropriate action as a result of the research.

Recommendation 149 Parents should be encouraged to involve their children in the preparation of parenting plans to the extent appropriate to the child’s age, maturity and wishes.

Implementation. Section 63B of the Family Law Act should be amended to this effect.

Recommendation 150 Where parenting plans are developed with the assistance of family or child counsellors, counsellors should involve children who are the subject of the plan in its formulation to the extent appropriate to the child’s age and maturity and commensurate with the child’s wishes.

Implementation. A provision should be inserted into the Family Law Act to this effect.

Children’s evidence

16.55 The Family Law Act does not prohibit children from giving evidence but the Family Law Rules state that leave of the court must be obtained before a child may be called as a witness, remain in the courtroom or swear an affidavit for the purposes of the proceedings unless he or she is a party or seeking to become a party.[155] There have been few instances of a judge allowing a child to give evidence in the Family Court.[156]

16.56 The court generally considers that children should be removed ‘…as far as possible, from forensic partisanship in spousal conflict’.[157] The court takes steps to ensure that parties do not introduce the evidence of children without thought for the effect giving that evidence may have on the integrity and development of the child. However, in many cases, evidence of children’s wishes as to the outcome of litigation of the matter may be helpful to the court in determining the issues, instructive to the parties and beneficial for the development of the child. In most cases, the court would prefer to use those mechanisms already discussed to hear from the child without subjecting the child to cross-examination in open court.

16.57 One submission to the Inquiry suggested that children who are to give evidence in the Family Court should be provided with witness preparation and support.[158] The Inquiry agrees. The recommendations in Chapter 14 regarding child witnesses are intended to apply to children who give evidence in the Family Court.

Recommendation 151 The Family Court practice that children generally not be called to give evidence should be retained where the evidence proposed to be given by a child relates to disputes of fact between the parties. However, where the child is of sufficient maturity and is anxious to give evidence concerning his or her wishes about a parenting order the practice should be relaxed.

Implementation. A Family Law Rule should be made to this effect.

Children as parties

16.58 Children may be heard in family law proceedings by initiating proceedings on their own behalf.[159] Children of appropriate age and maturity should be informed of their right to institute proceedings, to instruct legal representatives on their own behalf or to join applications. The Inquiry was told that children are often dissuaded from intervening when they express a wish to participate in family law proceedings as parties. One submission noted

[m]uch of the resistance appears to be associated with a failure to recognise the competence of young people in forming their own views and a failure to take seriously the right of children to be heard.[160]

16.59 Children should not have to institute or join proceedings merely to express their wishes or participate in litigation concerning their living arrangements. However, in some circumstances it may be appropriate for a child to become a party to proceedings. These could include situations where a parent is ‘litigation weary’ and the child is able to present cogent reasons as to why arrangements should change.[161] Practitioners and court officers acknowledge that children of a certain age who are unhappy with the results of litigation concerning their living arrangements will ‘vote with their feet’. These children should have access to the court to formalise their arrangements. That they are not in a position to do so may well undermine the stability of their new living arrangements.

16.60 The Geelong Rape Crisis Centre supported the draft recommendation that children be provided with information about their ability to initiate proceedings but suggested that a variety of mediums, for example video or audio tapes, should be used to provide the relevant information to children.[162] We agree.

Recommendation 152 Children should be informed about their options for participation in family law proceedings. The information should relate to the availability of counselling and their options for more direct participation in family law proceedings including their rights to seek legal advice or initiate proceedings. Brochures and other appropriate mediums should be produced to provide this information and should be directed to at least two developmental and literacy levels of children. The brochures should be provided to both the applicant and the respondent at the early stages of the proceedings to be passed along to the children concerned.

Implementation. The Family Court should prepare brochures that provide this information.

Children interviewed by a judicial officer

16.61 The Family Law Rules provide that a judge, judicial registrar or magistrate may interview a child in chambers or elsewhere.[163] If the child is separately represented, the child’s representative must consent before the child may be interviewed by the judicial officer.[164] Evidence of anything said during this interview is inadmissible in court, although the judicial officer may take the discussion into account in the decision making process.[165] The judicial interview is another mechanism by which children may be heard in family law proceedings. Judicial officers rarely interview children in this way. It has been noted that ‘…this practice, never widespread, has (thankfully) all but vanished’.[166] This opinion expresses the almost universal advice given to the Inquiry concerning the practice[167] and there has been at least one case where the Full Court criticised the use of the option.[168] National Legal Aid noted that all evidence should be heard in open court and that judges in any event may not have the necessary expertise for interviewing children.[169] The option of a judicial officer speaking to a child in chambers is quite rightly used very sparingly. However, in the interests of flexibility, the option should remain available.[170]

Recommendation 153 The option of a judicial officer interviewing a child in chambers should remain available but be employed only in rare circumstances where the best interests of the child justify a judicial interview.

[69] A Banning ‘Children as witnesses in the Family Court’ in J Vernon (ed) Children as Witnesses AIC Canberra 1991, 199.

[70] RE Emery Renegotiating Family Relationships Guildford Press New York 1994, 137. See also Australian Psychological Society IP Submission 131.

[71] See paras 16.55-57.

[72] The Family Law Act makes it clear that children should not be required to express any wishes: s 68H.

[73] See eg Defence For Children International IP Submission 204; Feminist Lawyers IP Submission 177; Family Court of Australia Representing the Child’s Interests in the Family Court of Australia: Report to the Chief Justice of the Family Court of Australia Family Court of Australia Brisbane 1996, 62.

[74] Law Society of NSW IP Submission 209.

[75] I Coleman ‘Children and the law: The Family Court experience and the criminal law experience’ Paper NSW Bar Association Seminar 9 September 1996, 2.

[76] art 12(2).

[77] The Evidence Act applies to the Family Court wherever the Family Law Act is silent on evidentiary matters: Evidence Act s 8(1). Family Law Act s 100A suspends the operation of the hearsay rule in relation to proceedings under Pt VII of the Act which deals specifically with matters relating to children. The court may give whatever weight to hearsay evidence it thinks fit: s 100A(2). See ch 14 for a discussion of general rules of evidence.

[78] The principle that the best interests of the child are paramount has been determined to apply to the admissibility of evidence: Hutchings v Clarke (1993) 16 Fam LR 452; Benson v Hughes (1994) 17 Fam LR 761. See also S and P (1990) FLC ¶92–159. The principle has also been applied to the question of whether to exercise jurisdiction and to restrain a person from bringing proceedings: ZP and PS (1994) 17 Fam LR 600; Monticelli and McTiernan (1995) 19 Fam LR 108. The Inquiry is satisfied that the best interests principle should continue to apply where relevant in procedural matters. Rec 135 is intended to broaden the application of the principle.

[79] Representation of children is discussed in ch 13.

[80] eg Federation of Community Legal Centres (Vic) IP Submission 129; Oz Child Legal Service IP Submission 195.

[81] LL Schwartz ‘Enabling children of divorce to win’ (1994) 32 Family and Conciliation Courts Review 80.

[82] See In the Marriage of Wood (1976) 11 ALR 657, 661. See also Watson ex parte Armstrong (1976) 136 CLR 248.

[83] Separate Representative v JHE and GAW (1993) 16 Fam LR 485, 498. See also In the Marriage of Lonard (1976) 2 Fam LR 11, 116. We do not propose to make detailed comments or recommendations about the adversarial system in children’s cases in this Inquiry as the ALRC is presently reviewing the adversarial system of litigation in the Family Court.

[84] In In the Marriage of Bartlett (1994) 17 Fam LR 405, 413 the Full Court noted that in deciding children’s cases the court has a positive obligation to make orders reflecting the paramountcy of the welfare of the child.

[85] This recommendation is particularly important in the light of the recommendations made in relation to the representation of children in the Family Court: see ch 13.

[86] See Re JRL; Ex parte CJL (1986) 161 CLR 342, 363, 373–374.

[87] Family Law Rules O 30 r 5.

[88] In the Marriage of Lonard (1976) 2 Fam LR 11, 116.

[89] K Murray ‘Consideration of the child witness in the Family Court’ in J Vernon (ed) Children as Witnesses AIC Canberra 1988, 192. Several appeals have dealt with the limits of the court’s ability to intervene or comment on proceedings: eg Separate Representative v JHE and GAW (1993) FLC ¶92–376 and Stiffle and Stiffle (1988) FLC ¶91–977.

[90] ALRC Sydney 1997.

[91] The procedures are complemented by a case management system. Cases are assigned to a particular ‘track’ according to their degree of complexity. Complex cases are referred to a judge manager while more straightforward matters are referred to trial as soon as possible: Family Court Case Management Guidelines No 1 of 1997 ch 6.

[92] Family Court of Australia Annual Report 1994–95 Family Court of Australia Sydney 1995, 3.

[93] K Derkley ‘Reform or fiasco: The Family Court’s new procedures may backfire, lawyers say’ (1996) 70(3) Law Institute Journal 8, 9.

[94] Family Court of Australia Annual Report 1994–95 Family Court of Australia Sydney 1995, 2.

[95] I Kennedy ‘Simplified procedures — The new regime’ 11(1) Australian Family Lawyer 20.

[96] This decision should be made at the first directions hearing: see rec 78.

[97] I Kennedy ‘Simplified procedures — The new regime’ 11(1) Australian Family Lawyer 20.

[98] Family Law Act s 62G(1), (2). See also s 55A(2).

[99] Family Court statistics quoted in D Smith TR Submission 46. See also Attorney-General’s Dept IP Submission 178.

[100] I Coleman ‘Children and the law: The Family Court experience and the criminal law experience’ Paper NSW Bar Association Seminar 9 September 1996, 12.

[101] ibid.

[102] T Brown et al ‘Mandated co-ordination: Aspects of the interface between the Family Court of Australia and the Victorian State Child Protection Service’ Paper Children at Risk: Now and in the Future Australian Association of Family Lawyers and Conciliators Seminar Melbourne April 1997, 15.

[103] T Brown et al Monash University IP Submission 47.

[104] Oz Child Legal Service IP Submission 195.

[105] para 8.17.

[106] It is important to remember that a family report may not adequately discharge the obligation under CROC to provide children who desire to participate directly in proceedings with an opportunity to be heard as required by art 12(2). Some submissions to the Inquiry raised this issue: eg Youth Advocacy Centre IP Submission 20; Burnside IP Submission 214.

[107] See eg J Benfer, E Drew & K Shepherd IP Submission 119; Coalition of Community Groups DRP Submission 10.

[108] J Benfer, E Drew & K Shepherd IP Submission 119.

[109] Draft rec 8.11.

[110] Family Court Case Management Guidelines No 1 of 1997 para 8.11. These guidelines also provide that family reports should not be ordered at the first directions hearing except in exceptional circumstances or where child abuse has been alleged: No 1 of 1997 para 2.12.

[111] eg Family Law Reform and Assistance Association DRP Submission 48; National Legal Aid DRP Submission 58; Australian Psychological Society IP Submission 131; Oz Child Legal Service IP Submission 195.

[112] ‘….the intervention of independent evidence in the form of a Family Report at the interim stage will, in many cases, see the unsuccessful party accept the interim order and avoid an ongoing dispute. For this category of cases, early intervention would represent a better targeting of finite Court resources and more appropriately place the wishes of children before the court’: Law Society of NSW IP Submission 209.

[113] eg Australian Psychological Society IP Submission 131; Oz Child Legal Service IP Submission 195.

[114] DRP Submission 64.

[115] See Chief Justice’s Chambers Family Court of Australia DRP Submission 64; National Legal Aid DRP Submission 58.

[116] See eg SA Children’s Interest Bureau IP Submission 156; Chief Justice’s Chambers Family Court of Australia DRP Submission 64. See also ALRC Report 73 For the Sake of the Kids: Complex Contact Cases and the Family Court ALRC Sydney 1995 paras 3.34–38.

[117] National Legal Aid DRP Submission 58.

[118] See rec 70.

[119] Family Law Rules O 30A r 3(1).

[120] Family Law Rules O 30A r 3(2).

[121] Family Law Act s 102B.

[122] Chief Justice’s Chambers Family Court of Australia DRP Submission 64.

[123] DRP Submission 58.

[124] Evidence to the Inquiry is that these family reports are generally useful: see para 16.36.

[125] See para 16.24.

[126] DRP Submission 64.

[127] s 102B. See also Family Law Rules O 30B.

[128] Hansard (H of R) 30 May 1991, 4455.

[129] Family Law Act s 102A.

[130] s 102A(1), (2). However, evidence of such examinations may be admitted if the court is satisfied that it relates to relevant matters on which the evidence already before the court is inadequate, that the court will not be able to determine the proceedings properly without the evidence and that the welfare of the child is likely to be served by the admission of the evidence: s 102A(4).

[131] However, in particular cases the court should perhaps consider making an order that a child not be further examined or interviewed. In these circumstances, it would be possible to commence contempt proceedings against a party who violates the order.

[132] eg Confidential oral submission 7 August 1997. See also paras 14.27-31.

[133] s 102A (3).

[134] Family Law Act s 102A(3)(e).

[135] Draft rec 8.13.

[136] DRP Submission 48.

[137] Under Family Law Act s 102A(3)(e).

[138] See para 16.30 for a discussion of whether the best interests principle applies to matters of procedure under the Family Law Act.

[139] Family Law Act s 63C(1).

[140] Family Law Act s 63C(2).

[141] Family Law Act ss 63B, 63C(2).

[142] Family Law Act s 63E.

[143] Family Law Act s 63E(2)(b). The court may vary provisions in the plan only if it considers the variation required in the best interests of the child: s 63F. The court may also set aside a plan if it considers that the concurrence of a party was obtained by fraud, duress or undue influence: s 63H(1)(a).

[144] Except where they involve a child and a third party ie other than a biological parent: Family Law Act s 63F. See also s 63G.

[145] Family Court of Australia Outcomes Report unpublished October 1996. However, it may be that there are more parenting plans being registered in State or Territory magistrates courts in their exercise of family law jurisdiction. Statistics are not available on this issue.

[146] The original recommendation upon which parenting plans were based did not envisage that they would be registered but would be ‘…flexible and capable of easy alteration to meet the changing needs of the child’: Family Law Council Patterns of Parenting After Separation AGPS Canberra 1992, 42.

[147] B Hughes The Registration of Parenting Plans: Section 63E of the Family Law Reform Act 1995 unpublished September 1996, 4.

[148] DRP Submission 59. See also Women’s Legal Service DRP Submission 68.

[149] A McNicol DRP Submission 39.

[150] Attorney-General’s Dept DRP Submission 52. This draft recommendation also received support from the Taxi Employees’ League DRP Submission 21.

[151] DRP Submission 58.

[152] IP Submission 178.

[153] DRP Submission 52.

[154] It has been suggested to the Inquiry that where parenting plans are prepared with the assistance of a counsellor, the counsellor could consider asking to speak to the children the subject of the plan to ensure they understand the arrangement proposed: Australian Psychological Society IP Submission 131.

[155] O 23 r 5(5), (6).

[156] I Coleman ‘Children and the law: The Family Court experience and the criminal law experience’ Paper NSW Bar Association Seminar 9 September 1996, 1. In the early case of Foley and Foley (1978) FLC ¶90–511, 77 680 the Family Court listed factors to consider in determining whether a child should give evidence including whether the evidence is reasonably available from an alternative source and the maturity of the child.

[157] Cooper and Cooper (1980) FLC ¶90–870, 75, 509.

[158] Kreative Kids DRP Submission 35.

[159] The Family Law Act specifically states that children may institute proceedings for parenting orders (s 65C), maintenance orders (s 66F) and any other order under the Act unless a contrary intention appears (s 69C(2)).

[160] SA Minister for Family and Community Services IP Submission 110.

[161] ibid.

[162] DRP Submission 61.

[163] O 23 r 5. Generally, interviews in chambers are conducted in the presence of a counsellor from the Family Court Counselling Service: J Treyvaud ‘Consideration of the child witness in the Family Court — A Victorian perspective’ in J Vernon (ed) Children as Witnesses AIC Canberra 1988, 196.

[164] Family Law Rules O 23 r 5(4).

[165] J Treyvaud ‘Consideration of the child witness in the Family Court — A Victorian perspective’ in J Vernon (ed) Children as Witnesses AIC Canberra 1988, 196.

[166] I Coleman ‘Children and the law: The Family Court experience and the criminal law experience’ Paper NSW Bar Association Seminar 9 September 1996, 1.

[167] However, Community Services Australia IP Submission 201 suggested it could be a useful tool if conducted within appropriate guidelines. The SA Children’s Interest Bureau IP Submission 156 suggested that children have clear notions of the power of judges and report they want to tell the person who will make the decision.

[168] Demetriou and Demetriou (1976) FLC ¶90–102.

[169] DRP Submission 58. Relationships Australia DRP Submission 70 also expressed concern that judges may not have the appropriate expertise and training to hear children’s views and interpret their wishes.

[170] National Children’s and Youth Law Centre DRP Submission 59 agreed with the proposal.