Children and the Family Court

2.70 About 1% of children can expect to have their parents divorce for each year of life: that is, about 5% of 5 year olds, 10% of 10 year olds and 15% of 15 year olds.[178] In 1993, the last year for which information is available on children’s involvement in divorce, there were 48 363 divorces granted by the Family Court.[179] Approximately 25 461 (52.6%) of these involved 48 106 children.[180] Roughly 10 of every 1000 children aged under 18 were involved in a divorce in 1993.[181] The proportion of divorces involving children varies between States and Territories. In 1994-95, NSW had the lowest proportion (50.6%) of divorces involving children, and Tasmania the highest (61.7%).[182]

2.71 Based on the Inquiry’s research, including reviews of the Family Court of Australia’s Annual Reports and of other statistics reported by the Family Court to the Inquiry, it seems that a large number of these children are involved in Family Court proceedings. However, as court statistics are mostly kept for the purpose of management, they do not always present the whole picture of children’s participation in family law matters.

2.72 In 1995-96, of the 67 557 files opened in the Family Court, 12 595 (18.6%) were cases where orders for guardianship or custody of children were being sought, and in a further 13 814 cases (20.4%) orders were being sought relating to access.[183] Only 748 cases (1%) concerned applications for child maintenance.[184] Most cases in the Family Court involving children’s issues are resolved without the need for a hearing: only 3 644 contested cases were finalised by Family Courts during 1995-96, of which 1 496 cases involved guardianship or custody issues and 1 568 concerned access and 216 concerned child maintenance.[185] Of the 3 354 casesresolved through conciliation conferences in 1995-96,[186] 1 286 involved issues relating solely to children and 782 concerned issues relating to both children and financial matters.[187]

2.73 Whether a matter involving children’s issues is contested or settled, children themselves are not necessarily involved in the Family Court’s legal processes. However, many of these trials and settlement procedures do in fact include children as participants. Children’s views are often heard in Family Court proceedings through Family Reports. From 1 July 1995 to 30 April 1996, 2 858 Family Reports were ordered by the Family Court of Australia.[188] During 1995-96, Family Court counsellors opened 1 529 ‘interventions’ and conducted 6 573 interviews in preparing Family Reports.[189] Another indication of the extent of children’s involvement in contested and non-contested Family Court proceedings is the number of orders made for the appointment of a child’s representative. From 1 July 1995 to 30 April 1996, 4 528 orders were made by the Family Court of Australia that a child by separately represented.[190] This was 290 more than in the entire 1994-95 year.[191] Overall, the number of representatives ordered in Family Law proceedings has been on the increase for a number of years. Statistics provided by legal aid commissions in many jurisdictions regarding their funding of representatives for children in Family Court proceedings provides an indication of the number of children who participate in this process.

Table 2.18 Grants of legal aid to children for separate representation in family law proceedings, 1996-97[192]

State/Territory

Total number of grants

Comments

Western Australia

160

40.0% of these matters were handled by in-house legal practitioners and 60.0% by private practitioners

Tasmania

86

no comments

South Australia

399

56.1% of these matters were handled by in-house legal practitioners and 43.9% by private practitioners

ACT

82

36.6 of these matters were handled by in-house legal practitioners and 63.4 by private practitioners

Queensland

509

44.2% of these matters were handled by in-house legal practitioners and 55.8% by private practitioners

Victoria

1 486

17.6% of these matters were handled by in-house legal practitioners and 82.4% by private practitioners

Northern Territory

26

no comments

 

2.74 A large number of family law matters are heard not in the Family Court of Australia but in State and Territory magistrates’ courts. Children may be involved in these matters as well. Most States and Territories do not keep statistics regarding the number of family law matters that are handled in their magistrates courts. Victorian figures give a limited indication of the extent of children’s involvement in these matters. In 1995-96, a total of 3 975 family law matters were disposed of by the Victorian Magistrates’ Court.[193]

[178] P McDonald Families in Australia: A Socio-demographic Perspective AIFS Melbourne 1995, 55.

[179] For the purposes of this section, the Family Court of Australia and the Family Court of WA will be referred to collectively as the Family Court. Information is given for these courts only, although many children are involved in these cases before State and Territory magistrates’ courts: see para 2.74.

[180] Family Court of Australia Annual Report 1995-96 Family Court of Australia Melbourne 1996, 64.

[181] ABS Australian Social Trends 1995 ABS Canberra 1995, 36.

[182] id 27.

[183] Family Court of Australia Annual Report 1995-96 Family Court of Australia Melbourne 1996, 66.

[184] ibid.

[185] id 67.

[186] Family Law Council Annual Report1995-96 AGPS Canberra 1996, 38.

[187] Family Court of Australia Outcomes Report unpublished October 1996.

[188] ibid.

[189] Family Court of Australia Annual Report 1995-96 Family Court of Australia Melbourne 1996, 71.

[190] Family Court of Australia Outcomes Report unpublished October 1996.

[191] ibid.

[192] Derived from Letter from R Lindsay, Acting Director Legal Aid of WA 25 August 1997; Information from B Cross, Assignments Manager Tas Legal Aid Commission 22 August 1997; Letter from J Battersby, Policy and Research Officer Legal Services Commission of SA 13 August 1997; Letter from C Staniforth, Chief Executive Officer Legal Aid of ACT 13 August 1997; Letter from C Reynolds, Executive Legal Officer Legal Aid Qld 25 August 1997; Letter from R Cornall, Managing Director Legal Aid Vic 13 August 1997; Letter from J Stone, NT Legal Aid Commission,9 September 1997. NSW is not included in this table as NSW Legal Aid did not supply this information to the Inquiry.

[193] Magistrates’ Court of Vic Annual Report 1995-96 Magistrates’ Court of Vic Melbourne 1996, 20.