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Kids are at the heart of many family law disputes.  The “best interests of the child” are enshrined in our family law legislation as the paramount consideration when making parenting arrangements.

Over the past decade, there’s been much debate about whether or not our family law system really listens to how children feel about arrangements that are made for their care. How well are children’s voices heard in family law matters that affect them?

And there’s consensus that reform is needed to how our family law system operates, in order to produce better outcomes for children.  The only real question now is: how will change be practically achieved?

What did the recent family law inquiries say and how did the Government respond?

When the recent spate of Government family law inquiries was completed, various recommendations and official responses were made on many different aspects of the family law system, including the subject of children’s participation.

Several recommendations on this were made for the Government to consider, and in turn, in its responses the Government flagged the intention to bring about reform in this area, but cited the need for more research to guide policy.

Generally, there’s agreement that improving and supporting children’s participation in the family law process can only occur if the system is made more child-focused and less adversarial.

What prevents children’s participation in the family law system?

The inquiries have established that it boils down to a lack of understanding on how to do achieve it, as well as concerns about their participation.  Recommendations have been made that children should not be forced to express a view, that expressing a view shouldn’t expose them to harm or traumatise them and that any mechanism for them expressing their view needs to be age-appropriate and depend on their maturity.  Children also need to understand that although their views are being heard, they won’t necessarily always be implemented.

There are also worries that the traditionally adversarial nature of the family court system might make the direct participation of children unsafe, although the paradigm is shifting. There’s also the question of whether judicial officers know how to engage appropriately with children, leading to recommendations for relevant training.

In the inquiries, experts, such as scholars from the Australian Institute of Family Studies (AIFS) highlighted research around the issue of children and their views in the family law system:

The research consistently finds that, although children speak to family report writers, and sometimes speak to Independent Children’s Lawyers, they do not necessarily feel that they have been listened to. They generally do not want to be the ultimate decision-makers, but they report a strong sense of their views being sidelined, particularly if they do not accord with the view which the child perceives is held by the professional engaging with them.

In the end, the inquiries and the Government responses have indicated that there’s still a need for further expert input on the issue.

But what are some of the practical ways already canvassed for how children’s participation in the family law system could be improved?

The idea of a board of kids to help guide lawmakers

One recommendation made after the Australian Law Reform Commission inquiry was for the establishment of a Children’s and Young People’s Advisory Board to enable the capture of children’s experiences in order to help inform policy and practice.  This is something the Government noted in its response, committing to undertaking more investigation on how this could be implemented.

The idea of enhancing the role of Independent Children’s Lawyers

Another recommendation has been to improve how Independent Children’s Lawyers (ICLs) operate to make the child’s voice more salient.

In the family court system, children’s views are conveyed second-hand, for example through family report writers and ICLs.  But while there currently are “guidelines” for ICLs, the legislation itself is silent on requirements. As such, ICLs have a discretion as to whether or not to meet children, and in what manner they may advise the parents and the court of the children’s views.

Recommendations therefore have been made to amend the Family Law Act so that ICLs are required to meet with children and allow the child the opportunity to express their views.

Changing how kids are heard

In improving how Australia’s family law system listens to children, could we adopt creative methodologies, such as in the style of a brand new, “game-changing” American program?

In the US state of Maryland, an innovative , or even “revolutionary”, program has been empowering both parents and kids in family law disputes.  The brainchild of former Judge Jane Cairns Murray and a family support services coordinator, Nolanda Robert, the program “uses the child’s voice to settle custody disputes”, by having children meet with a judge or the family support services coordinator to conduct interviews, which are then played to the parents in separate meetings with the judge or coordinator.  This creates a safe place for kids to speak their minds while parents are required to actually listen to the children’s views in a supportive environment.

The interviewer builds rapport, asking a structured set of specific questions (adapted for age) about life at home, the separation, and what custody schedule the child would like. Concrete scenarios are discussed, and the child is asked whether there are reasonable wishes they’d like the judge to grant. They are also cautioned that, while they should express their desires, as they would for a birthday or Christmas list, some but not all of their wishes will likely come true.

The children typically enjoy this. They have opinions and concerns about the changes in their lives, and, finally, someone will not only listen without taking anyone’s side, but will also help them get what they want. Even better, their beloved parents are not present and indicating—with an indrawn breath, a visible wince, or just a look in their eye—when the child says something perceived as hurtful or disloyal.

This mirrors the idea put forward here in Australia by the parliamentary inquiry recommendation that when ICLs meet with kids, such meetings should occur in the absence of the child’s parents.

Changing parent’s perspectives on their disputes

The Maryland court program has found that parents are often shocked by undiluted honesty of their children’s views.  Through the recorded interviews they are able to truly listen to the children without filtering or distorting the child’s perceived wishes through their own feelings and views.  The dispute resolution process then better centres around child-focused outcomes rather than, as is sadly often the case, the children becoming pawns in adult conflicts.  It is, after all, now accepted that it’s parental conflict itself which is most damaging to children, rather than a change in the child’s living arrangements per se.

With the idea that kids “are the best witnesses of their own lives and experiences” and that it is empowering to feel listened to, the program is s resulting in more conflict-free settlements and improved outcomes.

Research found that 81 percent of cases enrolled in this innovative program between 2017 and 2019 were wrapped up in three hours. Couples leave the court building with a signed and sealed settlement.

Perhaps we can learn something from this kind of program. Here in Australia, hopefully 2023 will see real progress on this important aspect of reform.

Source:  Psychology Today

For help with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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