Family Law Conference, Byron Bay Contact and Relocation: Focussing on Children Children’s Participation in Australian Family Law Decision Making – Setting the Context Diana Bryant Chief Justice, Family Court of Australia

2 Children’s participation in proceedings Family Reports s. 62G: “The court may direct a family and child counsellor or welfare officer to give the court a report on such matters relevant to the proceedings that the court considers desirable.” r Family Law Rules 2004 Part 6.3 Case Management Directions Practice Guidelines – Assessment and Reporting

3 Children’s participation in proceedings Family Reports (cont) Proposed new s. 62G(3A) “a ‘family consultant’ who is directed to give the court a report on a matter under subsection 62G(2) must:- (a)ascertain the views of the child in relation to that matter; and (b)include the views of the child on that matter in the report.”

4 Children’s participation in proceedings Child Representatives s. 68L(2): “If it appears to the court that the child ought to be separately represented, the court may order that the child is to be separately represented and may also make such orders as it considers necessary to secure that separate representation.” Re: K (1994) FLC ¶ Guidelines for Child Representatives cl. 68LA Family Law Amendment (Shared Parental Responsibility Bill) 2006

5 Children’s participation in proceedings s. 65C(b) “A parenting order in relation to a child may be applied for by…the child.” r (1) Family Law Rules 2004 “A judicial officer may interview a child who is the subject of a case under Part VII of the Act.” r (2) “The interview may be conducted in the presence of a family and child counsellor, mediator or another person specified by the judicial officer.” s. 100B “A child must not swear an affidavit, be called as a witness or remain in Court during the proceedings unless the Court orders otherwise.”

Children and family law litigation

7 Children’s Cases Program The primary objective of CCP is to achieve better outcomes for children. The secondary aim is to make cases more timely and less costly. CCP achieves these objectives through: –less adversarial court processes –more child focussed court processes –either directly or indirectly, providing assistance to the parties that enable them to parent more cooperatively in the long term.

8 Dr Jen McIntosh CCP - An exploratory study of impacts on parenting capacity and child well-being 15% of the mainstream parents denied any impacts of conflict on their children, compared to 4% in the CCP group. CCP parents are far more inclined to report that court processes had left them on higher ground as parents, leading to a positive change in 35% of cases. 70% of the mainstream group felt the overwhelming impact of court processes upon them as parents had been negative, whereas only 28% of CCP parents reported feeling this way. 60% of mainstream parents felt that their parenting relationship suffered a great deal as a result of court processes, compared with only 25% of CCP parents.

9 Dr Jen McIntosh CCP - An exploratory study of impacts on parenting capacity and child well-being “It hurts kids, scars them for life. It hurts them to see parents fight in front of children. It affects them a lot. I didn’t know it at the time but do now, since court. I heard what they all said, the Judge and the lady.” ‘CCP father’

10 Dr Jen McIntosh CCP - An exploratory study of impacts on parenting capacity and child well-being Overall picture from the CCP group (as reported by parents) was greater contentment and emotional stability as compared with the mainstream group. The ‘CCP group’ rated their children significantly lower than the ‘mainstream’ group on four key symptoms: –fewer worries –less tearful, unhappy or downhearted –less fearful, and –less anxious

11 Dr Jen McIntosh CCP - An exploratory study of impacts on parenting capacity and child well-being “Through its active child focus, personal attunement, accessible, educative and flexible approach, the Children’s Cases Project was more likely to protect and promote the very same qualities in parents who attended it”. Dr Jen McIntosh

Child Responsive Dispute Resolution Model

13 ASSESSMENT CONFERENCE Intake and assessment with each parent Clarification of all issues Child Responsive Dispute Resolution Model FAMILY CONFERENCE Family Conference with children Feedback to parents FEEDBACK MEETING Feedback meeting with parents and lawyers Preparation of preliminary report Children’s Cases Program (CCP)

14 INTERVIEWS WITH PARENTS AND CHILDREN TO PREPARE FAMILY REPORT Social science perspective Identification of issues External referrals FAMILY REPORT WRITTEN Family Consultant informs parents of contents of report EXPERT EVIDENCE Evidence provided to Court as required FOLLOW UP WITH FAMILY POST DETERMINATION Reviewing orders and assisting with implementation External referrals

15 Participation of Children Working Group More effective communication with children Judicial interviewing –Why would Judges interview children? –Who should be present? –How should an interview be recorded and reported? –What training can be offered to Judges?

Conclusion