A new report published by the Australian Institute of Family Studies has pushed for greater participation of children in Family Dispute Resolution (FDR) Practice.[1] The report urges family professionals, including lawyers, mediators, counsellors and other family dispute resolution practitioners, to transform the dynamic of their practice to effectively ‘give children a bigger voice, more of the time’. The Institute has expressly recommended that both legal and non-legal professionals commit to child-inclusive practice. We echo this sentiment and feel that child inclusive practice is not only more effective as a means of resolving disputes fairly and efficiently, it is also in the best interests of children whose parents are separating or divorcing.
The AIFS’s report emanates from findings in the study: Children and Young People in Separated Families: Family Law System Experiences and Needs project, which was recently commissioned and funded by the Australian Government Attorney-General’s Department.
From May 2017 to April 2018, the institute investigated the experiences and needs of young Australians whose parents had separated and subsequently engaged the Family Law system.
Features Of The Study
- Semi-structured in person interviews with 61 participants (young people aged from 10 to 17 years)
- Subsequent telephone interviews with 47 parents of the 61 participants
- Families from diverse backgrounds
- Location of participants: Victoria (36%), New South Wales (34%), Queensland (19%), South Australia (11%)
Findings Of The Study
Overview
- 26% of young people were spending time with both of their parents equally.
- 64% of young people spent most time living with their mother.
- Around 1 in 5 participants never saw one of their parents (18% never saw their father and 3% never saw their mother).
- Separated parents had accessed an average 8 services when finalising parenting matters.
- Unfortunately, the most popular method of dispute resolution was litigation in court (62%) and only a small portion of families had engaged in mediation and or out of court dispute resolution options.
Participating In The Dispute Resolution Process
- Experiences of separation were important in shaping the young person’s views on parenting arrangements.
- Young people wanted their views to be taken seriously by professionals, in particular when safety concerns were raised.
- Most young people (76%) wanted parents to listen more to their views in relation to parenting arrangements and the separation more generally.
Young People Expressed Desire For:
- Space and time to process events.
- Respect for their individual views – especially from their parents, whose own views might not align.
Ongoing communication with parents and professionals to understand more about what was going on in the post-separation context. - Information about various aspects in the legal process: knowing more about who was representing their parents, knowing who was ‘on their side’ or ‘hearing their voice’, understanding possible outcomes + alternative options, understanding what steps are involved in decision-making.
Perception Of Services
Parents who separated engaged a number of legal and non- legal professionals (on average 8) to assist in the resolution of their parenting disputes. In the study, children and young people reported greater feelings of exclusion in family law proceedings when they did not have the opportunity to meet the legal professionals involved.
Additionally, positive experiences were far more frequently reported in relation to non-family law related services. This means children were more satisfied engaging with mediators, counsellors and medical professionals than they were with lawyers.
CIP: In The Children’s Best Interests
Aside from anecdotal evidence that including children is beneficial to outcomes of FDR, there is also a legal impetus that warrants their involvement.
The Family Law Act 1975 sets out relevant considerations that a judicial officer must have regard to in any family matter, with a child’s best interests being paramount. In particular, s 68F(2) lists factors that are mandatory in any consideration of ‘best interests’ and begins with ‘any wishes expressed by the child’.[2]
The United Nations Convention on the Rights of the Child (CROC), which Australia signed in 1990, is also relevant. In particular, there are two broad categories of ‘rights’ that children maintain, both of which bear ‘best interests’.
- The right to protection or ‘welfare’ of children as in the right to protection from abuse and neglect; the right to positive relationships with both parents.[3]
- The right to self-determination or freedom, including the right to have an opinion, the right to be heard, the right to freedom of thought, conscience and religion.[4]
Where To From Here?
Based on feedback from participants, AIFS made a number of practical recommendations for legal professionals and mediators engaging with children:
- Give children space to speak and ensure that you are listening actively and effectively to their views and experiences.
- Take steps to build trust with children and young people with whom they interact. This requires patience, empathy and respect.
- Be more mindful of children and young people’s needs in general.
- Engage in open communication by providing more information relevant to the decision-making process.
- Act protectively and address and respond to young people’s concerns as soon as possible.
- Keep young people informed.
- Provide clear and accurate explanations of any decision made.
- Accommodate the potential for flexibility.
- Provide access to ongoing therapeutic support where needed.
We strongly endorse these recommendations and hope that they will be implemented throughout the profession.
[1] Carson, R., Dunstan, E., Dunstan, J., & Roopani, D. (2018). Children and young people in separated families: Family law system experiences and needs. Melbourne: Australian Institute of Family Studies
[2] Family Law Act 1975 (Cth) s 68F(2).
[3] See eg: Convention on the Rights of the Child, art 7, 9.
[4] ibid, art 12.