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Family Law

CANBERRA FAMILY LAWYERS – Children should have more say in family disputes, says top judge: Susie O’Brien Sydney Morning Herald

By August 1, 2014No Comments

CHILDREN do not have enough say over what happens to them in the Family Court, the court’s chief said.

Family Court Chief Justice Diana Bryant told an Australian Institute of Family Studies conference in Melbourne on Wednesday that children needed to be better represented in the court.

“In my view, this is critical,” she said.

Chief Justice Bryant said there was a need to change practices to ensure independent children’s lawyers (ICL) routinely met with children unless there was a good reason not to. Judges should be encouraged to enquire whether the ICL had met with the children and “if they haven’t, to ask why?”.

It is estimated only half the designated children’s lawyers meet children face-to-face.

And new evidence suggests there is a system-wide lack of confidence in the children’s lawyers.

An Australian Institute of Family Studies study of more than 500 children’s lawyers, judges, children and other lawyers found there were “few wholly positive experiences with the ICLs”, and some experiences were “very negative”.

“All … are concerned about competence of some practitioners,” researchers Dr Rae Kaspiew and Dr Rachel Carson concluded.

Only 46 per cent of other lawyers surveyed said independent children’s lawyers were well able to identify when children were at immediate risk. And only one in four other lawyers said they could identify if a child or parent was at risk of suicide or self-harm.

Chief Justice Bryant said it was important there be an “open mind about hearing children’s views”.

“Shortcomings have been identified and we are addressing them,” she said.

But she did not suggest all judges should interview children, saying: “You can’t expect all judges to be skilled interviewers”.

“What does the judge know of the pressures that the child may be under, or the family dynamic?” she said.

She also said some judges may have an “unconscious bias”, and that such interviews may give children “heightened expectations”.

But Chief Justice Bryant said judges should be able to meet with children where appropriate.

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