16. Children’s involvement in family law proceedings

135In all actions of a court under the Family Law Act concerning children, unless the Act expressly states otherwise, the best interests of the child should be a primary consideration.

Implementation. Section 43 of the Family Law Act should be amended to reflect the provisions of article 3(1) of CROC in relation to all areas of the Act not subject to the present best interests requirement.

136The factors relevant to a consideration of the best interests of the child, enumerated in the Family Law Act, should also include factors relevant to all areas of decision-making to which the best interests principle applies, and in particular to location and recovery of children, adoption and the welfare of children.

Implementation. Section 68F(2) of the Family Law Act should be redrafted accordingly.

137The Family Court should collect statistics on children’s participation in counselling, mediation and conciliation processes, including the origin of applications in which children’s involvement is requested, the number of matters in which children are involved and the results, including long-term outcomes, of those matters in which children participate in counselling or mediation compared with those where they do not. These statistics should be collected for all post-filing primary dispute resolution processes, including those funded under the Family Services Program.

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

138All providers of primary dispute resolution services associated with family disputes, whether employed within or outside the Family Court, should have

    • a recognised degree or diploma in psychology, social work or related discipline

    • at least 5 years’ relevant post-graduate experience, including at least 2 years’ working with family relationships

    • at least 2 years’ experience working with children, including the assessment of children and family relationships.

Implementation. The Attorney-General should specify that these standards are the minimum training and experience requirements for external providers of primary dispute resolution services associated with family disputes.

139All providers of primary dispute resolution services associated with family disputes should receive continuing training in children’s matters. Training should include material on legal issues for children in the family law system, child development and communication and, particularly, issues surrounding the disclosure of, family dynamics concerning and best practice for dealing with allegations of child abuse.

Implementation. The Family Court should develop appropriate continuing training programs to ensure the currency of the skills of its counselling and mediation staff. The Attorney-General should specify that all external providers of primary dispute resolution services should receive similar training.

140Counselling and mediation services should be available to all litigants involved in family disputes regardless of the court they are before. These services could be supplied in part by extending telephone counselling services or counselling circuits and by making use of video links and other new technologies in appropriate cases.

Implementation. Depending on the results of the Attorney-General’s review of alternative dispute resolution services in family law, the Family Court should consider appropriate mechanisms to ensure the provision of these services and should be resourced adequately to put these mechanisms in place.

141Judges 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.

142Through 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.

143The 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.

144More 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.

145The 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.

146The 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.

147In 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.

148The 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.

149Parents 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.

150Where 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.

151The 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.

152Children 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.

153The 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.

154The Family Court should continue to promote the access of Indigenous families and children to the court and continue its work in liaising with Indigenous communities.The court should continue research to ensure that its processes are adapted to take account of the dynamics of dispute resolution among Indigenous communities, particularly in relation to the involvement of extended families and family violence.

Implementation. The Family Court should undertake research in consultation with relevant community organisations and maintain programs to ensure appropriate access of Indigenous children and families to the court.

155The Family Court should take urgent action to collect and publish comprehensive statistics in relation to the number of applications made to the court involving Indigenous parties or children. Statistics should be collected and maintained regarding the passage of those applications through the court and their outcomes.

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

156The Family Court should develop an access and equity plan to assist it in eliminating barriers which people of non-English speaking background, including children, experience in accessing its services.

Implementation. The Family Court should develop this strategy.

157Closure of Family Court registries should be treated as a least favoured option for dealing with funding constraints in the Family Court. The continuation of circuits of the counselling service to rural and remote areas is particularly important. The Family Court should attempt to expand or promote on a national scale toll free telephone access to the court. It should consider making greater use of its ability to take evidence by video link or telephone, particularly from parties living in rural or remote communities.

Implementation. The Family Court should investigate the use of communication technologies to provide greater access to Family Court services for rural families and children.

158An awareness campaign should be conducted to provide medical practitioners with information about the legal requirements for approval for the conduct of sterilisation operations on young people with an intellectual disability.

Implementation. The Attorney-General, through his department, should co-ordinate and conduct this campaign.

159Research should be conducted to establish the comparative levels of approval of sterilisation applications in each jurisdiction by the various courts and bodies with this responsibility. This research should investigate the reasons for any discrepancy to ensure that procedures allow for appropriate exploration of alternatives to the sterilisation application.

Implementation. The Family Court should conduct such research in co-operation with relevant State and Territory agencies.

160Guidelines should be developed to regulate the pre-hearing processes for applications for approval of special medical procedures under the Family Court welfare jurisdiction. These guidelines should ensure that the procedures are used only where strictly necessary in the best interests of the child. The guidelines should require that parties be provided with information about all alternatives to the procedure, that all options have been explored prior to the hearing and that suitable counselling has been undertaken. They should also ensure that the child has participated as appropriate.

Implementation. The Family Court should consider developing such guidelines for inclusion in O 23B of the Family Law Rules or in case management guidelines as appropriate.