In the new family law inquiry parliamentary hearing, launched last week, one controversial issue has already been thrust into the spotlight: should Australian family law formalise the need to offer children the chance to speak in their matter?
It’s something that has been debated over the years, through the various inquiries and reports. So far, there has been no change to legislation.
At the moment, judges have option to choose to engage with a child directly to hear their views, but this almost never happens. Instead, children’s views are conveyed through family reports, expert witnesses and Independent Children’s Lawyers.
This has led to criticism that children are not being properly heard in the family court system. The question has become, how can children have a better say in the decisions that affect them?
National Children’s Commissioner Megan Mitchell is advocating for the next phase of family law reform to the Family Law Act to ensure kids are better included in their court cases. Speaking at the family law inquiry Senate hearing launch, she said reform was needed:
- to improve children’s understanding of what was going on;
- to ensure they are informed about their rights;
- to build their trust that their views are being heard in court;
- to stop them being “played” by parents in the court system;
- to avoid a sense of “silencing kids”;
- to help them have some influence on their case; and
- to have a better way of explaining outcomes to avoid confusion.
“The Family Law Act doesn’t require a judge to provide an opportunity for children to express their views and so we’re asking that the Family Law Act be amended to actually require that to happen. “We’re not saying a child should be compelled to express a view, but they should be provided with the opportunity to do so,” said the Commissioner.
The Commissioner told the Senate hearing:
“Rather than a discretion, I think it [speaking with kids] should be a requirement. I really think we need to be aware of how much of a safeguarding tool being able to speak up, raise your concerns, say what you feel is for kids.”
Safety foremost
As the court setting would be extremely intimidating for children, advocates say special provisions must be put in place. For example, children should be able to give evidence safely via video link or from behind a screen.
Chairwoman of non-profit advocacy group the National Child Protection Alliance of Australia, Niki Norris, told ABC:
“[Children] should be given the same privileges [as minors in other courts] to explain what happened to them, and most children will do that if they’re not scared by a whole courtroom full of people.”
Training family court officials on how to communicate with children would also be necessary, said the Children’s Commissioner.
And as a recent article on the subject concluded that the problem was the system was relying on untrained family reporters, family consultant accreditation and training also needs to be addressed.
While there were initial concerns over this new parliamentary inquiry because of some early rightwing rhetoric, there is optimism that shedding any further light on the ailing system has to be beneficial.
To speak to someone about your 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.
