Vulnerable children and the Family Court

Indigenous children

16.62 Submissions indicate that the relationship between Indigenous people and the Family Court is problematic.^[171] This may be the result of a historical legacy including

…an association of the Court with previous ‘welfare’ policies which resulted in the removal of indigenous children from their families.^[172]

Australia’s Indigenous population is predominantly young.^[173] This highlights the importance of ensuring that Indigenous families are properly served by the Family Court. Initiatives in recent years are making the Family Court more aware of issues of concern to Indigenous families and children.

16.63 The Family Law Act explicitly requires the court to take into account ‘any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders’ in assessing a child’s best interests.^[174] In B and R and Separate Representative the Full Court held that the Family Court has an obligation to receive evidence relevant to the unique experience of Indigenous Australian people in determining the best interests of Indigenous children.^[175]

16.64 The Family Court is also taking administrative steps to facilitate the participation of Indigenous people in family law processes. It has established the Aboriginal and Torres Strait Islander Awareness Committee to consider the extent to which Indigenous people use the court, to increase the awareness of officers of the court of problems confronting Indigenous people and to make the services of the court more relevant to Indigenous people.^[176]

16.65 These developments are relatively recent and progress is currently affected by funding constraints.^[177] Their impact is yet to be fully realised. The relevance of the court to Indigenous families and children will be affected by the extent to which the court is able to take account of the involvement of extended families in dispute resolution and of the extent of family violence in family breakdown among Indigenous communities.^[178]

16.66 Statistics kept by the Family Court do not record the Aboriginality of parties or children who are the subject of proceedings. This makes monitoring the effects of the initiatives almost impossible. The Family Court is presently considering how it can best collect the statistics suggested in DRP 3.^[179] National Legal Aid suggested that keeping statistics on Aboriginality ‘…could result in improper manipulation and misrepresentation of Aboriginal litigants by assorted community groups’.^[180] However, the collection of these statistics is justified by the importance of an accurate understanding of the extent and manner of use of the court by different client groups and particularly Indigenous people. As the submission from the Education Centre Against Violence noted, ‘[a]ccess to justice has not traditionally been equitable for indigenous people and specific strategies should address this’.^[181]

Children from non-English speaking backgrounds

16.67 Many people from non-English speaking backgrounds have difficulty accessing Family Court services. This may be due to language or cultural barriers. Some communities are unfamiliar with the notion of a court determining family disputes and have traditionally relied upon extended family networks to assist in the resolution of family disputes. However, for many families those extended family networks are not available in Australia. It is important that the Family Court be accessible and relevant to all Australians, particularly to those families which may be suffering some social and cultural dislocation as well as the trauma of family breakdown. To address these issues, the Family Court has introduced a number of strategies to make it less intimidating for people, such as producing information audiotapes and pamphlets in community languages.^[182] None of the initiatives is aimed specifically at children.

16.68 In its report on Multiculturalism and the Law, the ALRC recommended that all federally funded support services, including the Family Court, have a component included in their grants or budgets to be applied to developing comprehensive and detailed access and equity plans.^[183] These plans could be of particular benefit in assisting the Family Court to eliminate barriers to people of non-English speaking background, including children, accessing its services.

16.69 The House of Representatives Standing Committee on Community Affairs recently made a number of recommendations to promote access and equity principles in the provision of government services.^[184] For example, the Committee recommended that cross-cultural communication training be incorporated as an essential element of staff development across all levels of government^[185] and that the practice of supplementing interpreting and translating services by the employment of bilingual/bicultural staff be adopted across all government agencies that provide services.^[186] The Inquiry supports the implementation of these recommendations in the Family Court. The Family Court has pointed out that there is a limited budget for interpreters.^[187]

Children in rural and remote areas

16.70 The Family Court has 21 registries or sub-registries throughout Australia located in capital cities and some major regional centres.^[188] Outside these urban centres, applicants may choose to make use of the State or Territory magistrates’ court network which has been invested with family law jurisdiction.^[189] The Family Court provides some counselling services on a circuit basis but there may then be difficulty in accessing them in a timely manner. Remote areas have no access to counselling services. The alternative to these options for people in rural or remote areas is to travel sometimes very long distances to the nearest Family Court. The ability of people living in remote areas to obtain access to the Family Court is an issue of particular concern to Indigenous communities.

16.71 The court has indicated its willingness to travel to some remote locations. However, as the court points out, these services are costly and cannot presently be provided at the level required.^[190] Access to the court may also be provided for people in rural and remote areas by the greater use of processes such as video-links or telephone services. The Family Court is able to hear evidence or sub-missions by video link or telephone from any place within or outside Australia.^[191] Before doing so, the court must be satisfied that the arrangement is more convenient than requiring live evidence or submissions.^[192] Full use should be made of this capacity. The Inquiry is aware that one registry has a toll free number. This service should be expanded, promoted and resourced on a national scale.

16.72 In general, however, the Family Court will only remain accessible through the maintenance of its regional registries. The Family Court is aware of the priority of this issue and noted in its submission that registry closures ‘were the least favoured option of the court’, a step taken only after other measures were instituted.^[193] Counselling circuits to rural areas should be maintained at an acceptable standard particularly if court counsellors take on a greater investigative role.^[194] The Inquiry’s recommendations concerning the introduction of a specialised family and children’s magistracy and a specialist federal magistracy should assist in the provision of family dispute resolution services in rural areas.^[195]

Young people with intellectual disabilities

16.73 The needs of children with disabilities must be considered by the Family Court in determining any parenting orders.^[196] Specialist skills may be needed in providing reports and expert advice to the court when the children involved have special needs. Reports ordered under O 30A of the Family Law Rules may be particularly relevant here.^[197] This may include advising on the support needs of the child and devising suitable options for the care of the child. The guidelines in Re K on appointing a child’s representative do not refer specifically to children with disabilities.^[198] However, the criteria in that case are wide enough to ensure that children with disabilities are provided with a child’s representative as appropriate. Sensitivity and care are required to ensure that children with disabilities can participate in the decision making process to a degree commensurate with their abilities and willingness.

16.74 Of particular relevance to children with disabilities is the Family Court’s statutory welfare power.^[199] This power has been used to authorise special medical procedures for children,^[200] most frequently the sterilisation of young women with profound intellectual disabilities.^[201]

16.75 States also retain the right to determine sterilisation applications for children with intellectual disabilities. The Family Court has developed co-operative arrangements with other relevant agencies in Victoria and Queensland in regard to sterilisation applications.^[202] Children with intellectual disabilities should not be sterilised without approval from either the Family Court or a State or Territory authority such as the NSW Guardianship Board but evidence indicates that many unauthorised operations are performed.^[203] Approval rates vary greatly. Since January 1994 the NSW Guardianship Board approved only one out of seven such applications brought before it while the Family Court approved the procedure or refused to exercise jurisdiction to prevent it from being performed in seven of the eight reported cases it has dealt with.^[204]

16.76 One submission to the Inquiry urged an awareness that parents with children with a profound disability struggle for many years to facilitate their children’s development and provide for their basic care. The submission urged

…consideration of these issues needs to be a two way street, because at the end of the day it remains the parents of the young people and young adults who provide their primary care…^[205]

There can be little disagreement with this but the procedure is one of such significance that taking the decision to an independent third party is in all parties’ interests. Parents must be given every opportunity to consider alternatives to sterilisation procedures. In fact, the Family Law Rules require affidavits to be filed indicating that the procedure is necessary and there is no appropriate alternative.^[206]

16.77 Although the Family Court has accepted the need for guidelines for these proceedings,^[207] no comprehensive or detailed guidance is available. DRP 3 suggested that further guidance is needed to ensure that the procedures are used only when strictly necessary in the best interests of the child.^[208] That suggestion received some support in submissions.^[209] The Family Law Council has also recommended that appropriate guidelines be developed.^[210] National Legal Aid disagreed with the draft recommendation, arguing that ‘….such guidelines already exist in the Family Court and are contained in the Family Law Act’. It also argued that this may throw up a new threshold test of ‘strictly necessary’.^[211] However,the numbers of sterilisations apparently performed without court approval indicate the need for guidelines to ensure that an application is approved only as a last resort.

16.78 Concerns have been raised about the child’s right to participate and be heard in sterilisation application proceedings and the standard of advocacy provided to them.^[212] The degree of participation of children who are the subject of the application should depend on individual capacity — clearly a 16 year old with a mental age of 7 is still capable of expressing an opinion.^[213] The child may, and generally would, be appointed a next friend or child’s representative for the hearing.^[214]

16.79 A number of submissions expressed some concern that DRP 3 dealt with only sterilisation of young women with intellectual disabilities.^[215] One submission urged that ‘…neither the Commissions nor the implementers of this report be entrapped by the emphasis upon sterilisation alone’.^[216] Another submission urged that the Inquiry ‘recognise the far reaching implications for children’ of the statutory welfare jurisdiction of the court.^[217] The submission pointed out that equivalent jurisdictions internationally have addressed a broader range of procedures than sterilisation of intellectually disabled young women and that the Australian jurisdiction is beginning to deal with a broader range of matters.^[218]

16.80 One submission proposed that guidelines be developed to encompass the range of procedures that may be sanctioned under the special medical procedures provisions of the Family Law Rules.^[219] It argued for further direction to ensure that the court is able to take account of the wishes of the child in all these cases.^[220] Recommendations 70-76 deal with the requirements of a legal representative for children before the Family Court.^[221] These requirements provide an appropriate level of participation for children, commensurate with the ability and willingness of the child concerned to participate. The recommended guidelines in relation to the welfare jurisdiction should include an express requirement that the child participate in the proceedings to the extent that he or she is able and willing to do so.