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

Introduction

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]

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]

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.

Experts

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.

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.

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.

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.

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]