Nicholson, Alastair --- "Children in Family Law Systems - Some Thoughts on 'seen and Heard'" [1998] ALRCRefJl 12; (1998) 72 Australian Law Reform Commission Reform Journal 55

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Reform Issue 72 Autumn 1998

This article appeared on pages 55 – 58 &75 of the original journal.

Children in Family Law Systems: Some thoughts on Seen and Heard

By Chief Justice Alastair Nicholson*

The recent report Seen and heard: priority for children in the legal process by the Australian Law Reform Commission and the Human Rights and Equal Opportunity Commission is far reaching in its proposals. In this article I confine myself to some aspects of the report that most directly and significantly touch on the operations of the Family Court.

At the outset, it is essential to appreciate that one key change proposed by the report is a shift to a presumption of instructions based legal representation for children in family law proceedings and a corresponding change in the role and tasks carried out by Court counsellors. Quite aside from specific comments contained below, a key difficulty in commenting on the proposals is the current uncertainty about the future of the Family Court Counselling Service and the nature of any possible alternative arrangements for the provision of dispute resolution and counselling services. The recommendations I will be canvassing have different implications depending upon the outcome of the government’s deliberations in respect of the Attorney-General’s Department Discussion Paper on Primary Dispute Resolution Services in Family Law.

This article proceeds on the assumption that the status quo of Court provided services will be maintained, but it should be noted that the reservations it expresses are magnified if future arrangements include the provision of counselling services by a wide range of agencies and individuals rather than the Court itself. Obviously, a model which provides for the delivery of counselling services which are dispersed among various agencies introduces additional complexities to the issues of standards compliance, interagency communication and case management.

A second overarching context for this article is that all recommendations depend fundamentally upon the level of resourcing provided to both child representatives and the provision of the counselling services as envisaged by the report. Existing resources for counselling are already stretched beyond reasonable limits and would be totally unable to accommodate the expanded functions envisaged by the report. Similarly, the suggestion of earlier, and presumably more frequent, participation of child representatives will require increased levels of legal aid funding.

Finally, Seen and heard suggests significant changes to the way in which cases are to be managed under the Court’s Case Management Guidelines, which are promulgated by me by way of practice direction. Any change will, therefore, require significant and careful consultation with the Court and other key participants in family law to ensure that the Court’s case management processes are not undermined or compromised.

Jurisdiction

The report identifies many unsatisfactory features of the differing systems for care and protection matters within Australia. That concern was also expressed by the Full Court of the Family Court in B and B: Family Law Reform Act 1995 ((1997) FLC 92-755) in which the following comparison was drawn between the English and Australian structures:

“[England’s] unification of the two areas of private and public law appears to provide a coherent and systematic view of child related law which is absent in this country despite the advantages which would be likely to be provided by cross-vesting and/or the reference of powers [over care and protection matters to the Commonwealth]. The fusion of both systems would minimise risks to children and avoid the dangers of overlapping or lacunae in legislation and services. The absence of possibly competing and inconsistent State and Federal laws offers many advantages: see the discussion of this by the Full Court in Re Z (1996) FLC 92-694.”

While appreciating the benefits of a fused system, the report recommends that responsibility for hearing care and protection cases should remain with State and Territory Children’s Courts, but that specialist magistracies should be “cultivated” and permitted to take on an expanded role. Such magistracies would, in the long term, handle all children’s matters including juvenile justice cases and certain Family Law Act cases. Present requirements that parties consent to having matters heard by a State or Territory magistrate rather than the Family Court would be removed.

In a context where the Commonwealth Attorney-General is considering the establishment of a federal magistracy, the report also recommends that there should be a specialist magistracy of the Family Court. This support for specialisation is very much in keeping with my view and that of the Family Law Council, and would provide a significant means of reducing the hearing delays which are currently experienced in all registries.

In respect of arrangements for hearing cases when they are first brought, the preferred option in the report is to build on the national cross-vesting framework, which allows one court to deal with all connected matters once a case is properly before it. The recent decision of the High Court in Gould and Brown (not yet reported, 2 February 1998) throws the whole of this recommendation in doubt. Although the existing cross-vesting scheme was saved on the casting vote of the Chief Justice, the matter may be expected to be the subject of further challenge in circumstances where both the Chief Justice and Toohey J, who supported the scheme, will no longer be members of the Court.

If the cross-vesting scheme is constitutionally possible, two particular matters would need to be considered. First, it is not clear whether it is envisaged that a specialist magistracy would have to be identified or developed before the cross-vesting scheme commenced. To so require would be consistent with the report’s preference for greater specialisation in children’s matters and may require the staggered conferral of federal jurisdiction on children’s courts.

A further issue of uncertainty is what constitutes “a related federal family law matter” when proceedings are commenced in a children’s court. A choice would be necessary between specifying what such matters are in legislation or leaving it to determination by individual courts.

The changes in the amount and type of workload resulting from the proposal have significant implications for funding, training, case management processes and linkages between children’s courts and the Family Court. Particularly for children’s courts, the report appreciates that ready access would be needed to the conciliation services which the Family Court has found so important in diverting disputes from trial. As noted in the report, budgetary constraints already limit the availability of Family Court counselling services, particularly in rural areas.

It is also recommended that appeals from magistrates’ decisions in care and protection matters should be heard by a single judge of the Family Court of Australia instead of higher courts in the State or Territory jurisdiction which are not specialised in the family law area. Where cases have been originally heard by a single judge of the Family Court, the appeal would be heard by the Full Court of the Family Court. Implementation of this structure would enhance national consistency in these sensitive areas. The jurisprudence available to guide practitioners and initial decision makers would be much improved by remedying the scant body of reported case law on protection matters.

In the US, there is a strong move in favour of unified family courts, with jurisdiction in both private law corresponding to the Family Court of Australia, and public law in the areas of child protection and juvenile justice. The most successful example of such courts is found in the State of Hawaii. In Australia, such a court could only be achieved in Western Australia because the Family Court of that State is a State court.

One solution would be for the States to cede this jurisdiction to the Commonwealth as they did (except for WA) with respect to ex-nuptial children. Another possibility would be to set up State and Territory family courts as s41 of the Family Law Act still permits, and for the Family Court of Australia to be an appellate court only. It would be necessary under this model for such State and Territory courts to have the current status of a court of superior record, for to do otherwise would demote the status of private law children’s matters.

Either of these solutions would be difficult to achieve. Perhaps the best interim solution is the development of a much more coordinated approach between the Family Court of Australia and State and Territory children’s courts.

Privileged counselling

Another most significant change suggested by the report concerns privileged counselling. This is the mechanism whereby either voluntarily, or because of requirements imposed by the Family Court’s case management guidelines, parties are expected to see a Court counsellor in an attempt to resolve their disputes. Save for extremely limited proforma information about matters such as the parties’ attendance and whether issues have been resolved, a privilege attaches to anything said at such a session.

The report proposes that a Court counsellor should file a memorandum before the first directions hearing, which contains more comprehensive assessment-based information than is currently the case, and that the question of appointment of a child representative be considered at that hearing.

I agree as a matter of principle with both the early identification of cases which require a child representative and the aim of the recommendation as expressed by the Family Law Council - namely that the provision of such information will minimise the number of interventions with a child who is the subject of proceedings. I would, however, be concerned if the nature of privileged counselling was undermined or compromised by the requirement of more extensive information being provided through the Counsellor’s memorandum.

How these recommendations interact with the suggestion that children be more involved in counselling processes is a matter which requires much more detailed consideration. Children are rarely involved at this stage of counselling as it currently occurs. In practical terms it must also be appreciated that the sequence of events in the Court process will not always enable assessment of the type envisaged to occur.

These recommendations also assume that privileged counselling takes place before the first directions hearing, but this is not always the case. Issues of distance, family violence and urgent listing may not make such a sequence possible.

The Case Management Guidelines require a first directions hearing to be held within six weeks of the application being filed, and the Court would oppose any extension of this time-line in cases involving children, on the basis that any further delay could compromise their interests. While any extension may have little significant bearing on applications for final orders, it would have a serious impact on delays in applications for interim orders. In the Court’s experience interim applications usually accompany applications for final orders.

Assessment of the wishes of children at this stage would require an increase in the time allowed between filing and the directions hearing because such a requirement would involve additional interviews with all children in the family, as well as interviews with the parents and possibly other family members.

A further category of cases which does not mesh with the recommendations is that involving the making of an urgent interim application to the Court. It is unlikely that such cases can be seen before a directions hearing, especially when there are good grounds to abridge the time for hearing of the application. The counselling is frequently in the nature of crisis intervention and, even when that is not the case, given the state of flux that a family may be in at the time, experience suggests that it may be better to allow more time before assessment to enable the long term needs of the family and children to be addressed.

It also needs to be appreciated that counselling can and often does take place on a voluntary basis before an application is filed with the Court: more than 50 per cent of cases fall into this category. Where there has been recent voluntary counselling, the requirement to attend further Court-ordered counselling is usually waived and thus there would not necessarily be Court-ordered privileged counselling before the first directions hearing.

If the report’s proposals were adopted, one of two circumstances would have to follow in cases where families have recently been seen on a voluntary basis:

• the nature of voluntary counselling would need to change to incorporate the gathering of the type of information envisaged, as the changes would involve a more comprehensive exploration of the wishes of the child. Since only 25 per cent of these cases proceed to file, this would involve a considerable burden and overservicing for many; alternatively

• the nature of the voluntary counselling interaction would not change but the waiver on privileged counselling would cease, leading to a greater level of counselling intrusiveness on these families.

Obvious resource implications flow from such an expanded and investigative function for Court counsellors, especially if those tasks are to be fulfilled within the six week period between filing and the first directions hearing.

Role changes for judges and counsellors

Recommendation 80 (page 285) proposes an expanded role for the Family Court counsellor in the reports which are prepared for contested matters. It seems to be envisaged that the counsellor would assume many of the functions currently performed by the child representative in those cases where that representative, under the model proposed by the report, is acting on an instructions basis rather than a best interests model.

A fundamental difficulty is the expectation that the counsellor remains a witness providing evidence in the case and that “[t]he presiding judicial officer should be active in ensuring information presented by the counsellor is supported by appropriate evidence”

(page 284). This comment in the report is footnoted with a reference to recommendation 141 (page 400), which states:

“Judges and Magistrates deciding family law matters should be encouraged to intervene appropriately to assist the determination of the best interests of the child in Family Court children’s matters.”

The Court has long argued that a strictly adversarial approach is inappropriate in children’s matters, but the precise nature of a more appropriate inquisitorial approach is still the subject of debate. For example, it is necessary to determine how the judicial role might be expanded to incorporate the range of functions carried out by a best interests legal representative. It is one thing for the presiding judicial officer to ask questions of witnesses or provide trial management of the case. It is quite another matter for that person to assume responsibility for decisions concerning evidence and its adduction, and this is a critical role of the best interests child representative.

Conclusion

Seen and heard is a report that must not be allowed to languish and be lost as unfortunately happens with many law reform recommendations. Its proposals will be the subject of government response and when that is made, stakeholders such as the many community members and organisations who contributed to the report, will lobby for the implementation of those aspects which most concern them. The report marks not just the culmination of one significant process, but the start of many others where the commitment to reform must be demonstrated.

* The Hon Alistair Nicholson, AO RFD is Chief Justice of the Family Court of Australia.