Establishing the views of children and presenting them to Court early in family law proceedings

1. Establishingthe views of children and presenting them to Court early in family law proceedings Mark Palmer Family Consultant Family Court of Australia

2. Family Consultant Child Inclusive InterventionsFamily Court of Australia (FCoA)& Federal Magistrates Court of Australia (FMC) • Usually earlier in proceedings: • Child Inclusive Conference (FMC) & Child Responsive Program (FCoA) which aim • To assist the Judicial Officer • To protect the child(ren) – screening for issues including mental health, family violence and AOD • To give child(ren) a “voice” in proceedings • To assist parents with resolving dispute • Usually later in proceedings: • Family Report (Both Courts) • All Family Consultant interventions are not confidential for the Court’s purposes and occur in the context of legislation, policy and agency practice

3. Early Child Inclusive Interventions • Read Court file (usually not subpoena material) • Single or limited number of appointments • Parents seen separately, initially • Children wait in child-care room, away from parent(s) • Children interviewed individually (usually) – may observe parent-child interaction for younger children • Feedback to parents together (if possible) • Provide support to reach sensible agreement about their child/ren (if possible) • Produce written assessment (“memorandum”) for Court and parties.

4. Child’s perspective is provided (potentially) early in litigation Focussed on children’s issues Invites parents to focus on children and their needs Impartial social science input early Aimed at assisting Judicial Officers Time limited Views established on single occasion Rarely formal observation of interactions between child and parent(s) Cannot determine veracity of allegations/ accounts Parents’ responses to children afterwards are not known Children’s expectations Limitations & Strengths • Generally: discussed elsewhere, e.g. Cashmore & Parkinson 2009 - www.aifs.gov.au/institute/pubs/fm2009/fm82/jc.pdf • Specifically:

5. Interviews - Adults Parenting issues (violence, substances, mental health, capacity to consider/understand child’s needs and views) Family Violence Screening Risk Assessment Decision Making Pathway

6. Interviews - Children • Apparent developmental level (and age) • Memory, recall, and ability to verbalise this • General experience and perception of each parent / family • Specific experience of violence, conflict and related behaviour of each parent – (undue) pressure • Other experiences, including trauma • Social and cultural considerations • “Best Interests” • Views are inextricably context related • Guidelines eg Saywitz et al (2010), Powell & Lancaster (2003)

7. Memorandum Background Information Summary of agreement(s) reached Issues remaining in dispute Family safety factors Issues relating to the children Parent’s understanding of the children’s needs Issues impeding resolution Case management recommendations or suggestions (including referral to community based organisations) Feedback and Informing the Court • Feedback to parent(s) & information for Judge (matter of balance) • Impact on child’s relationships until matter resolved • Safety – Risk Of Significant Harm (NSW)

8. Case Examples • 1. Boy 15, Girl 13 - long standing parental conflict (m.1996 - s.2002, consent orders 2003,2007) Mother’s application in 2011 - resolved by consent • 2. Girl 9, Boy 7 – recent separation (m.1999 – s.2012), family violence allegations, alcohol abuse allegations, inter-state relocation, Father’s application – remains before the Courts

9. References Buchanan, Maccoby, & Dornbusch (1991) “Caught between parents: Adolescents' experience in divorced homes”, Child Development, 62, pp. 1008-1029 Cashmore & Parkinson (2009) “Children’s participation in family law disputes. The views of children, parents, lawyers and counsellors”, Family Matters, no. 82, pp 15-21. Fook (1999) “Critical reflectivity in education and practice” pp. 195-208 in Pease & Fook (eds) (1999) Transforming Social Work Practice: Postmodern critical perspectives, St Leonards: Allen & Unwin Grych, Seid & Fincham (1992) “Assessing Marital Conflict from the Child’s Perspective: The Children’s Perception of Interparental Conflict Scale”, Child Development, 63, pp. 558-572 McIntosh & Long (2006) Children Beyond Dispute: A Prospective Study of Outcomes from Child Focussed and Child Inclusive Post-Separation Family Dispute Resolution. Final Report, Canberra: Australian Government McIntosh & Long (2007) The Child Responsive Program operating within the Less Adversarial Trial: A follow-up study of parent and child outcomes, Carlton North: Family Transitions McIntosh, Long & Wells (2009) Children Beyond Dispute: A four year follow up study of outcomes from Child Focussed and Child Inclusive post-separation family dispute resolution, Canberra: Australian Government Powell & Lancaster (2003) “Guidelines for Interviewing Children During Child Custody Evaluations”, Australian Psychologist, vol 38, no. 1, pp 46-54 Saywitz, Camparo & Romanoff (2010) “Interviewing Children in Custody Cases: Implications of Research and Policy fir Practice”, Behavioural Sciences and the Law, no. 28, pp 542-562. Schön (1991) The Reflective Practitioner: How professionals think in action, Aldershot, Ashgate