- Family Court to consult Kids
- By Kate Legge, Social Affairs Writer
- The Australian
- 12/02/2005 Make a Comment
- Contributed by: admin ( 47 articles in 2005 )
CHILDREN caught in the tug of war as marriages break down may be routinely interviewed by judges in revolutionary changes being considered to reform Australia's adversarial family court system.
Judge Linda Descau of the Family Court told a conference yesterday that a steering committee was wrestling with new protocols to provide greater opportunity for judges to involve children in the decisions that would determine their future.
Although the Family Law Act already gives judges the power to interview children, the judge said this provision was "sometimes but rarely used" because of tradition and a climate of anxiety.
"In practising family law in Australia, people are terrified about the idea of interviewing children, just as overseas jurisdictions are horrified that we do not do what is so integral to the issues before us," Justice Descau said.
Family law judges in the US interview children as a matter of course, while in Canada, the procedure is so common it is enshrined in legislation with guidelines and parameters spelling out procedures. In France and Germany it is a vital part of decision-making.
"This is something we must address further in Australia," Justice Descau said in remarks to a closing session of the Australian Institute of Family Studies annual conference in Melbourne.
She said that if children were able to speak with a judge directly, they could feel empowered in a process that often alienates them, and it could help warring parties refocus on the young people who are caught in the middle of their disputes.
The Family Court is piloting a new system for resolving domestic conflicts called the Children's Cases Project, which shifts away from adversarial litigation to conciliatory resolution of these deeply emotional disputes.
Justice Descau hailed the project as extremely successful, claiming 85 of 200 pilot cases had been finalised quickly, without the legal and resource costs of protracted court appearances.
She acknowledged the difficulties of deciding how children should be interviewed, whether in the presence of parents, lawyers, mediators or children's representatives, and the additional problem of determining how these interviews should be reported.
In Quebec, the conversations between judges and children are taped and then released to the parties on a judge's order or kept under seal. In Germany the judges summarise the conversations for the parties to a dispute.
"Whichever way we go, it is clear that judges will need a high degree of training for this purpose," she said.
Her comments were endorsed by a Family Court convenor, Dianne Gibson, who said children were often not seen until just before the hearing, which impeded their input and participation in proceedings critical to their future welfare.
"I'm proposing that we align our family and child dispute model with the core business of the court," she said.
Ms Gibson wants the Family Court "mediators" to be rebranded as family and child consultants, in recognition of a radical shift towards self-determination and negotiation and away from litigation.
Judge Linda Descau of the Family Court told a conference yesterday that a steering committee was wrestling with new protocols to provide greater opportunity for judges to involve children in the decisions that would determine their future.
Although the Family Law Act already gives judges the power to interview children, the judge said this provision was "sometimes but rarely used" because of tradition and a climate of anxiety.
"In practising family law in Australia, people are terrified about the idea of interviewing children, just as overseas jurisdictions are horrified that we do not do what is so integral to the issues before us," Justice Descau said.
Family law judges in the US interview children as a matter of course, while in Canada, the procedure is so common it is enshrined in legislation with guidelines and parameters spelling out procedures. In France and Germany it is a vital part of decision-making.
"This is something we must address further in Australia," Justice Descau said in remarks to a closing session of the Australian Institute of Family Studies annual conference in Melbourne.
She said that if children were able to speak with a judge directly, they could feel empowered in a process that often alienates them, and it could help warring parties refocus on the young people who are caught in the middle of their disputes.
The Family Court is piloting a new system for resolving domestic conflicts called the Children's Cases Project, which shifts away from adversarial litigation to conciliatory resolution of these deeply emotional disputes.
Justice Descau hailed the project as extremely successful, claiming 85 of 200 pilot cases had been finalised quickly, without the legal and resource costs of protracted court appearances.
She acknowledged the difficulties of deciding how children should be interviewed, whether in the presence of parents, lawyers, mediators or children's representatives, and the additional problem of determining how these interviews should be reported.
In Quebec, the conversations between judges and children are taped and then released to the parties on a judge's order or kept under seal. In Germany the judges summarise the conversations for the parties to a dispute.
"Whichever way we go, it is clear that judges will need a high degree of training for this purpose," she said.
Her comments were endorsed by a Family Court convenor, Dianne Gibson, who said children were often not seen until just before the hearing, which impeded their input and participation in proceedings critical to their future welfare.
"I'm proposing that we align our family and child dispute model with the core business of the court," she said.
Ms Gibson wants the Family Court "mediators" to be rebranded as family and child consultants, in recognition of a radical shift towards self-determination and negotiation and away from litigation.
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