Specific issues for family law proceedings

Appointment of the representative

13.107 The Family Court stated the general rule for the appointment of a representative for a child in Re K.^[214] It held that a representative should be appointed when the court decides that the child’s interests require independent representation. Subject to this broad general rule the court established thirteen specific situations where a representative should be appointed. These are cases where

• there are allegations of child abuse whether physical, sexual or psychological
• there is an apparently intractable conflict between the parents
• the child is apparently alienated from one or both parents
• there are real issues relating to cultural or religious differences affecting the child
• the sexual preference of either or both of the parents or some other person having significant contact with the child is likely to impinge upon the child’s welfare
• the conduct of either or both of the parents or some other person having significant contact with the child is likely to impinge upon the child’s welfare
• there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the children
• on the material filed by the parents, neither seems a suitable custodian
• a child of mature years is expressing strong views, giving effect to which would involve changing a long standing custodial arrangement or a complete denial of access to one parent
• one of the parties proposes that the child will be either permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for all practicable purposes exclude the other party from the possibility of access to the child
• it is proposed to separate siblings
• none of the parties are legally represented and custody is at issue
• in applications to court’s welfare jurisdiction relating in particular to the medical treatment of children the child’s interests are not adequately represented by one of the parties.^[215]

The court pointed out that full adherence to CROC may well require the representation of children in every case but it expressed no concluded view on the matter.^[216] New Zealand legislation provides that, in all custody or access matters which appear likely to proceed to a hearing, the court shall appoint a representative for the child unless the court is satisfied that ‘…the appointment would serve no useful purpose’.^[217] Several submissions to the Inquiry supported this approach.

It is submitted that any case involving parenting orders that are seriously contested, or where a child chooses to intervene or is a party, should involve…a child representative.^[218]

Other submissions suggested that most contested matters would fall within one or the other of the categories in Re K.

The South Australian Office for Families and Children is encouraged by the comprehensive nature of the guidelines for the appointment of separate representatives…^[219]

The court pointed out in Re K that the guidelines are not exhaustive.^[220]

13.108 The circumstances identified by the Family Court in Re Kfor providing representation for children are clearly appropriate. However, even within those categories, where a child is unwilling or is too young to participate in the litigation, a representative should be appointed only where an expanded investigatory role for report writers^[221] would not provide the court with all relevant information concerning the best interests of the child or where there are other compelling reasons for the appointment. This may occur where evidence of the parties should be vigorously tested by a representative acting in the best interests of the child and where no other party is likely to test the evidence.

Making the appointment

13.109 In the Family Court the appointment of the representative could be made by the registrar at the first directions hearing on the basis of the counsellor’s assessment.^[222] DRP 3 stressed the importance of representatives being appointed as early as possible in the litigation so that children’s opinions may be advocated during the negotiation phase.^[223]

13.110 After conciliation counselling before the first directions hearing, the counsellor is required to complete a memorandum to assist at the directions hearing.^[224] The Family Law Council has recommended that the memorandum include a recommendation as to whether a child’s representative should be appointed^[225] and information concerning

a) whether the Court will need to appoint a counsellor or other person to offer clinical interventions or professional advice to the child or the family;

b) whether relevant reports are available from someone outside the court system and how they can be obtained;

c) what other professionals, agencies and persons are already working with the child;

d) whether any of those professionals would be prepared to (i) maintain liaison with the Court with a view to ensuring that the services already being provided to the child are not disrupted by the legal process; (ii) to act as a contact point for any separate legal representative appointed to the case by the Court; and (iii) where appropriate assist the separate legal representative in the case and to help explain the court processes to the child;

e) whether the child’s interests are being adequately addressed by the parties; and

f) whether or not a child should be assessed further.^[226]

13.111 The Inquiry endorses this recommendation and further recommends that the memorandum state whether the child has expressed any wishes as to the outcome of the proceedings and if so the substance of those wishes.

The role of the counsellor

13.112 Where children are represented in accordance with their wishes the court may require an additional mechanism to obtain all relevant evidence concerning the child’s objective best interests. The recommendations in this chapter, insofar as they relate to the Family Court, require not only the maintenance but also the development of processes for providing information to the court about the best interests of the child.

13.113 At present in private family law disputes Family Court counsellors may be asked to prepare a family report about the child.^[227] A family report is prepared in approximately 60% of matters which proceed to a hearing in the Family Court.^[228] The report writer cannot call witnesses but presents the results of the investigation and is subject to cross examination. Other parties may call as witnesses those referred to in the report and subject them to cross examination.

13.114 The current role of the report writers should be expanded to include more detailed investigation and assessment of the best interests of the child and the presentation to the court of the evidence upon which that assessment is based. Where the child is represented on the basis of instructions or not represented at all, this should be the primary method for bringing before the court information concerning the best interests of the child. The report writer should be the ‘eyes and ears of the court’ and be charged with supporting the best interests of the child.

13.115 The Family Court pointed out that the proposal would mean the Counselling Service becoming a party to the proceedings to prosecute a best interests case. It expressed some concern about such a course because

…counsellors do not have the skills to prepare and run cases in Court…Furthermore we think it important to emphasise that the counsellor preparing the report has limited access to and limited ability to require other persons and agencies to provide information.^[229]

The Inquiry envisages the counsellor adopting much of the investigative role of the best interests representative. This would include conducting wider inquiries than are presently made by the counsellor preparing the family report. We do not expect, however, that counsellors should prepare and run cases in court on the basis of their assessment of the child’s best interests. Their role would remain restricted to giving evidence as witnesses in a case. The presiding judicial officer should be active in ensuring information presented by the counsellor is supported by appropriate evidence.^[230]

13.116 In For the Sake of the Kids the ALRC suggested that a children’s interests co-ordinator approach be tried in some cases.^[231] The report envisaged that the co-ordinator would perform many of the functions of the court counsellor including preparation of the report and also be asked to oversee and co-ordinate the management of those cases. The Inquiry reiterates that recommendation. The co-ordinator/report writer could appear whether or not there is a representative appointed for the child but would be particularly relevant where the child is not represented. The appointment of a co-ordinator/report writer would obviate the need to appoint a representative in many cases.

13.117 The child’s representative may supplement information about the best interests of the child but should not be relied upon as the main source of it.

Order of argument in family law matters

13.118 In Family Court matters where there are multiple issues, submissions and addresses proceed first in relation to property matters. Children’s issues are determined thereafter. The report to the Chief Justice Representing the Child’s Interest in the Family Court of Australia suggested that this order be reversed.^[232] This would allow representatives to be excused following the determination of relevant parenting orders and other children’s issues. The Inquiry agrees with this recommendation.