A messy split, painful divorce, and bitter custody battle. At the centre of it are the kids, whose daily lives are about to be dictated by a family law judge who has only been offered a glimpse into their lives and living conditions.
How do courts make these judgements? Given a custody decision affects children the most, wouldn’t it make sense to have them weigh in — especially in cases with allegations of abuse or neglect? Apparently not.
Crikey digs into the tricky world of child custody decisions.
Why are kids left out of custody decisions?
Australia’s controversial family law system has a tendency to implement policies based on misinformation over expert advice.
The Family Court must prioritise a child’s safety in their rulings — but judges also often stress the importance of an older provision: that children have a right to regular contact with both parents.
The problem? Kids often aren’t asked about their safety. When it comes to family violence and custody decisions, research and experts agree that children are often ignored, misinterpreted, or placed in dangerous and uncomfortable situations with their alleged abuser.
Kids aren’t consulted in family law
The Australian government recommends parents don’t “pressure [their] children to make decisions about their own care. Children love their parents and it can be harmful to put them in a situation where they feel that they have to choose between their parents.”
This recommendation, according to Director of Women’s Domestic Violence Court Advocacy Service NSW Hayley Foster, becomes a major issue when violence is involved.
“We have cases where children won’t be asked at all,” Foster says.
If they are asked, interviews are often conducted by a family consultant who chats with the parents and sometimes the child, and prepares a report. The consultants are social workers or psychologists. There’s no accreditation for being a family consultant; they do not need to have specialist training with domestic and family violence.
“I’ve analysed these cases and it’s frightening,” Foster says.
“Children are being asked questions in a way that may encourage a certain view. And kids who do present their view are often misconstrued and analysed by consultants as the child being angry,” she says.
The reporting has been so bad, it sparked a parliamentary inquiry which recommended doing away with family consultants all together.
Jargon and misinterpretation
There may be reason for keeping kids out of courtrooms — they’re emotive places. Lawyers will often ask hard questions in a confronting way, challenging everything someone says to paint a situation in the best light for their client.
When children are placed in the witness box to testify about their living conditions and preferences, they face unempathetic lawyers who use legal jargon most adults struggle to understand.
Studies have found children misunderstood questions, and felt they couldn’t say what they wanted. They were confused about how they could answer, and were often cut off or interrupted by lawyers before they could get their point across.
Bringing the abuser in
The most stupefying part of the process is that children are often asked about abuse allegations in front of the alleged abuser. This is a terrible idea for a number of reasons, Foster says.
Children often refuse to speak, or end up telling outright lies about abuse allegations they had previously disclosed. This can fall back on the other parent who are sometimes perceived as being vindictive, inventing abuse to win custody.
“It would never be recommended to speak with a child where there are concerns around the safety of the child around that carer. There’s absolutely no way that it’s best practice for that child to give their view in the presence of that parent,” Foster says.
And yet it happens. Repeatedly, leading to children being placed with an inept or abusive parent.
Courtrooms can be chaotic places for a child, and keeping kids out of them might make sense.But relying on untrained family reporters or time-poor judges to choose what is best simply doesn’t. To prioritise safety, kids need to be able to weigh in on custody decisions.
A quick look at the cited parliamentary committee report recommends only to “abolish private family consultants, with family consultants to be only engaged and administered by the Court itself. “
The woman quoted in the article misrepresents this by saying the recommendation is for total abolition – though perhaps it’s a reportage error.
There are all sorts of ways besides an adversarial in court process for the court to hear children. It’s a good example of the advantages of the inquisitorial approach. Court appointed and administered family consultants will probably suffice in most instances. There’s no reason a child couldn’t be heard by a judge in camera with suitably qualified assistance if the court was unsure though this may require legislation.
The process is based on the principle that everyone lies. It becomes a race to the bottom with lawyers outdoing themselves to accuse and fabricate. The truth gets left in the foyer. Children are manipulated to conform to the outcome agenda organized by this business model. 6 minutes and it is over. The actual participants in the family didnt even have a right to speak. As the lawyer said, if you want justice and fairness from this court throw those in the corner and spit. At the very least mandatory mediation needs to be required to build some form of parental structure to assist in cooperstion and compassion. Sack them all would be my recommendation. They are totally unfit for purpose. A panel of volunteers would be vastly more functional, timely and financially viable than the current stream of lawyers who only work to send out fake IVOs a few hours before court appearance. A rort which most likely has cost numerous lives.
Come off it.
Children can’t give evidence at all in family law proceedings. The use of children’s legal representatives, completely unmentioned by your reporter, is an important part of looking after their interests. The use of family reports is too: and inadequacies in some family report writers are hardly in the same league with the hardships that would follow putting children on the stand.
There children would face their abusers, and with the low level of legal aid and high level of self representation would face questioning from their abusers.
There children who know nothing of the options of the court, unadvised by children’s legal representatives, seem to be called on to put a case for what they want to the court.
This is likely to be much worse for children than any problems with some family report writers. It is most unlikely to deliver a better voice for children than the present system. And it is certain not to protect children from having to take sides between contending adults to the extent that the current system does.