Childs world. Enhancing the Best interests of the children through mediation,pre-court and Court processes: the Austral

1. Childs world. Enhancing the Best interests of the children through mediation,pre-court and Court processes: the Australian Picture Lilia Szarski Relationships Australia Psychologist, FDRP,

2. Family Law reforms in OZ • Family Law Reforms • Parliamentary Committee • “Every Picture tells a story’ • “HILDA” study • The lobbying • The submissions • The recommendations

3. Key components of reforms • FRC/EIS, early intervention services • Changes to child support • Compulsory Dispute Resolution • Less Adversarial trial/Family Court • Family Violence Strategy • Strengthening The Act and Best Interests Principle of Children.

4. Grumpy clients?

5. Presumption of equal shared parental responsibility (does not equal shared care) Inserts a new starting point (or presumption) • Will NOT apply if there are reasonable grounds that there is family violence or child abuse • Also rebutted where the court considers it is not in the best interests of the child

6. Summary Schedule 4 • Removal of references to residence and contact • Now “lives with” and “spends time and communicates with”, “parenting orders” • Introduces Family Relationship Centres • Changes dispute resolution / mediation system (internal and external) including changes to officers of the Court • Removes ‘privilege’ in relation to some dispute resolution • Introduces new terminology • Counsellor/mediator to ‘family consultant’ / ‘family dispute resolution practitioner’ / ‘family counsellor’

7. Summary of concepts Schedule 5 • Introduces new concepts and legal principles • Role of independent children’s lawyer • Guidelines for independent children’s lawyer • Introduces new terminology • ‘children’s (child) representative’ to ‘independent children’s lawyer’

8. How a court determines the best interests of a child • To determine the best interests of a child the Court can request/appoint: • independent children's lawyer • Psychological reports • Family reports • Legislative criteria

9. New Best interestslegislative provision 60CC • The primary considerations are: • (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and • (b) the need to protect the child from physical or psychological harm caused, or that may be caused, by: • (i) being subjected or exposed to abuse, ill‑treatment, violence or other behaviour; or • (ii) being directly or indirectly exposed to abuse, ill‑treatment, violence or other behaviour that is directed towards, or may affect, another person.

10. Additional considerations of best interests • Additional considerations • (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views; • (b) the nature of the relationship of the child with: • (i) each of the child’s parents; and • (ii) other persons (including any grandparent or other relative of the child); • (c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

11. Additional considerations • (d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: • (i) either of his or her parents; or • (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; • (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

12. Best interests of children additional considerations cont: • (f) the capacity of • (i) each of the child’s parents • (ii) any other person, including grandparent or other relative to provide the needs for the child, including emotional and intellectual needs • (g) The maturity, sex, and lifestyle and background( including lifestyle ,culture and traditions of the child and of the child’s parents and any other characteristics of the child the at the court thinks fit.

13. Best interests additional considerations • (h) if the child is an Aboriginal child or a Torres Strait Islander child: • (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and • (ii) the likely impact any proposed parenting order under this Part will have on that right;

14. Best interests additional considerations • (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents; • (j) any family violence involving the child or a member of the child’s family; • (k) any family violence order that applies to the child or a member of the child’s family, if: • (i)the order is a final order; or • (ii)the making of the order was contested by a person

15. Best interests, additional considerations • (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; • (m) any other fact or circumstance that the court thinks is relevant.

16. Compulsory Dispute resolution • From 1/7/07 the Family Law Act requires that in all children’s matters: • Parents are to try to resolve their disputes before attempting any Court process • The FRC is required to try to engage both parties to try to negotiate ( if appropriate) • A Certificate is required that FDR has been attempted before filing in a Court (some exceptions apply)

17. Compulsory dispute resolution

18. Compulsory Dispute Resolution • The Court won’t hear an application unless a certificate filed. • Aims to ensure genuine effort made to resolve dispute before going to court • Exceptions include cases involving abuse and violence.

19. FRCs and the FDRP • FRCs are to be effective at facilitating communication, and listening • Active in structuring the FDR process • A focus on feelings, relationship concerns, interests and children • An emphasis on problem solving, creativity at generating options and solutions • A greater number and variety of interventions • A referral process for the families that need to have legal advice/support services etc Mack 'Court Referral to ADR' 2004 67

20. Selecting Models of Dispute Resolution • Mediation and conciliation • Focussing on children • Involving Children • Involving Lawyers’ in the process • Process: face to face, shuttle, telephone/video, on-line • Court process

21. Children’s Issues in FDR in FRCs • All problems with bargaining over children need either a: • Child-focussed practice • Theoretical perspectives • Practice considerations • Child-inclusive practice • Theoretical perspectives • Practice considerations

22. The FRC framework

23. Amendments relating to court proceedings The CCP and LAT • Less adversarial process, LAT • Active case management involves judges taking an active part . • Supports the Children’s Cases Program and FMC case management approach

24. Less grumpy judges in the LAT

25. Combined Registry for the Family Law Courts • Aim – to simplify the way people deal with the courts by reducing confusion and streamlining process • Provides access for both Courts to the in-house Family Consultants, and the external FRC group, and external expert witnesses on fee for service model • .

26. Resolution phase Application for Final Orders - parenting Frc services procedure Start case Application (Form 1) filed Trial awaits Case Assessment Conference and/or Procedural hearing Interim Hearing And o onwards with the same judge1 Less Adversarial trial Case settles (consent order) 6 to 12months if not settled

27. Determination phase Application for Final Orders - parenting 14-16 weeks 4-8 weeks Trial Notice Issues Pre-trial Conference Full Family report prepared and issued Affidavit and trial preparation Compliance Certified Trial 8 weeks 12months 4-8 weeks

28. Independent children’s lawyer • Implements FLC recommendations on child representatives • Change in title to ‘independent children’s lawyer’ • Emphasis on the lawyer acting in the best interests of the child, not on the child’s instructions • Greater guidance for lawyers acting in the role.

29. ICL and the Court • UNCROC • What is a ICL, nature of the role • Duties and meeting with the children • Relationship between ICL and Family Consultant • Helpful information in Family reports

30. Children’s best interests are supported by: • Pre-Court= • Through the Family Relationship Centres and the FDR processes that can include the children in Child inclusive mediation • In the Court process= through the Family Report processes • At Court= through the appointment of an ICL • Through Court –ordered child counselling etc

31. New reforms already in train • Defacto and same sex couples access to the family law in regard to financial matters • Family violence legislation. • Evaluation of the Shared Parental responsibility Act especially as it refers to young children, • The possible inclusion of lawyers /.or legal advice in the FRCs • The protocols regarding the exchange of information from FDR in regard to child at risk and family violence matters in specific cases.

32. Children and success