Post-separation parenting - Children's involvement in decision making

The latest material added to the Australian Institute of Family Studies library database is displayed, up to a maximum of 30 items. Where available online, a link to the document is provided. Many items can be borrowed from the Institute's library via the Interlibrary loan system.

See more resources on Post-separation parenting in the AIFS library catalogue

Speaking out about family separation: the views of children and young people with experience of separation and the family law system in WA

Western Australia. Office of the Commissioner for Children and Young People
Subiaco, WA : Commissioner for Children and Young People WA, 2019.
This paper presents the views of children and young people in Western Australia on what they found helpful during family separation and any ideas they have to improve the experience. Consultations were held with 12 young people aged 12-20 years old, regarding the support young people received from family and friends during and after their parents' separation; the efficacy and quality of support provided by family law and other professionals; what was particularly helpful or challenging throughout the process; and the various consultation mechanisms that were offered. The paper discusses family law and family courts in Western Australia, issues raised by families during separation, and Australian research on the participation of children in matters affecting them, then outlines the themes raised by the young people during the consultations. This paper was prepared as a submission to the Australian Law Reform Commission's current review into the family law system, and the paper concludes by considering the findings in light of the issues raised by the review. Children and young people have a right to be listened to and to contribute to decision-making in families, and the ALRC review is a positive opportunity to ensure these rights are recognised and acted upon.

Stifled voices : hearing children's objections in Hague Child Abduction Convention cases in Australia.

Fernando M and Ross N
International Journal of Law, Policy and the Family v. 32 no. 1 Apr 2018: 93-108
This article reviews the ability of children to object to a mandatory return order in overseas child abduction cases. Under the Hague Convention on the Civil Aspects of International Child Abduction, children unlawfully taken from their home country by a parent must be returned. However, the 'children's objection exception' allows courts to refuse to make the order if the child objects and is of sufficient age and maturity. The rules in Australia are more stringent, requiring also that the child's objection show a 'strength of feeling beyond a mere preference or ordinary wishes'. The article examines the development and operation of the 'children's objection exception' in Australia and calls for greater use of judicial meetings with children and greater use of Independent Children's Lawyers. It argues that children must be provided with meaningful opportunities to participate in overseas child abduction cases, which will have significant and sometimes irreversible consequences for their lives.

What children and young people think should happen when families separate

South Australia. Office of the Commissioner for Children and Young People
Adelaide, S. Aust. : Commissioner for Children and Young People, 2018.
This paper presents the views of children and young people in South Australia on how they want to be supported when their parents separate and how the legal system could ensure their voices are heard. Consultation sessions were held with 20 children and young people aged from 7-22 years old, with and without a lived experience of the family law system. Participants discussed what they would like from the time their parents separate to after the family law process officially concludes, including when they wish to learn about the separation, legal professionals and court processes, child advocates, and child inclusive mediation. The paper shares their views then considers best practice and how the system could respond better. This paper was prepared as a submission to the Australian Law Reform Commission's current review into the family law system.

Children and young people in separated families: family law system experiences and needs

Carson R, Dunstan E, Dunstan J and Roopani D
Melbourne : Australian Institute of Family Studies, 2018.
This report was commissioned to learn more about children and young people's experiences of the family law system during parental separation and how the system could better meet their needs. 61 children and young people aged 10-17 years old were interviewed, with 47 parents also helping with background information. The findings provide rich insights into the experiences and needs of children and young people, as well as the pathways used to resolve family law matters. Topics include: issues important to children and young people in making post-separation parenting arrangements, valued supports in dealing with parental separation, flexibility and changes in parenting arrangements, building post-separation relationships with parents, meaningful participation in decision making, experiences of the family law system, acknowledgement of their views and experiences, services that supported participation in decision making, and professional services and support considered effective by children and young people.

Is a view different from a wish?: considering the child's view in parenting disputes in Australian family law matters

Voight M
"Child custody laws in Australia were significantly reformed on 1 July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) ('FLASPRA') amendments to the Family Law Act 1975 (Cth) ('FLA'). This thesis examines the nature and impact of the amendment to the child voice provisions of ascertaining the child's 'views' provided in section 60CC(3)(a), rather than the consideration of a child's 'wishes' as formerly required in section 68F(2)(a) FLA ... The amendments produced several important questions for law and practice regarding the technical legal difference in the terminological change. How is a view different from a wish? What are the opinions of Independent Children's Lawyers ('ICLs'), who are advocates for the child's best interests and Judges who decide litigated custody cases, about the change to the child voice provisions? What does the experience of ICLs and Judges indicate about any change in their professional practice under the new child view regime? ... For research questions 2 and 3 I conducted a small scale purposive study of the opinions and practices of ICLs and Judges regarding the 2006 child view amendments. The study surveyed 14 ICLs and 6 Judges, in three states: Queensland, New South Wales and Victoria. [This thesis provides] insights into professionals' opinions and actual practice in relation to this important Family Law provision."--Author abstract.

Barriers to empowering children in private family law proceedings.

Bell F
International Journal of Law, Policy and the Family v. 30 no. 3 Dec 2016: 225-247
There is increasing use of lawyers to empower and represent the interests of children in family law disputes, but concerns have been raised that the role of facilitating participation cannot be considered in isolation from the obligation to protect children from the trauma of family law proceedings. This article explores this balance, drawing on interviews with 40 Independent Children's Lawyers in Australia regarding the difficulties and barriers to facilitating children's participation, the concept of empowerment, empowering a child versus affecting case outcomes, professional roles, and alleviating versus exacerbating concerns.

The practice of family law in Canada: results from a survey of participants at the 2016 National Family Law Program

Bertrand L, Paetsch J, Boyd J and Bala N
Ottawa, On. : Dept. of Justice Canada, 2016.
"This study analyzes the results of a survey of more than 200 lawyers and judges attending the 2016 National Family Law Program, a high-profile, four-day biennial conference organized by the Federation of Law Societies of Canada, on current issues in the practice of family law in Canada. Subjects addressed in the study include participants' views of and experiences with: court-attached family justice programs; hearing the views of children; issues in custody and access disputes; issues in disputes about child support and spousal support; family violence; unified family courts; and, the use of limited scope legal services in family law disputes."

Children's 'wishes and feelings' in relocation disputes.

Cashmore J and Parkinson P
Child and Family Law Quarterly v. 28 no. 2 2016: 151-173
This article explores the views of children involved in relocation disputes, as part of a longitudinal study on the outcomes of relocation disputes which commenced in mid-2006. The article presents findings from interviews with 20 of the participating families, with 33 children aged from 9-16 years old. Relocations had occurred in 15 of the 20 families. Children were asked about how the felt when the move was first proposed, adjustment, relationship with non-resident parent (their father, in these cases), leaving and making new friends, travel arrangements, and step-parents. Findings from the broader study of 80 families and with the New Zealand companion study are also noted.

Children's participation rights during child protection proceedings: recognition, legal representation, and the redistribution of care in Victoria's Children's Court

Horsfall B
Under the United Nations Convention on the Rights of the Child and the law of Victoria, children have the right to be participants in decisions affecting their welfare when the state intervenes in their families. This thesis investigates the legal construction and implementation of these participation rights when families become involved with statutory child protection authorities. It examines how participation happens from the beginning of statutory intervention through to judicial decisions about children's best interests in the Victorian Children's Court, drawing on research with 37 lawyers and observations with 56 children across 50 cases. The study found that legal representation is shown to satisfy children's participation rights to a strong extent, providing evidence for a relationship between participation and children's care and safety when determining their best interests. However, the study also found that institutional governance structures of the child protection system and the conduct of adults can impede children's participation rights, suggesting that changes to the Victorian child protection system since 2013 substantially reduce children's participation with legal representation and diminish oversight of child protection intervention and safety in their lives.

Participation of children and young persons within New Zealand Family Courts.

Callinicos P
Seen and heard - children and the courts joint conference February 2015. Canberra : National Judicial College of Australia, 2015: 35p
This paper looks at statutes within the New Zealand Family Courts Act which pertain to child issues, with a particular emphasis on ascertaining what, if any, role children or young persons might have in the proceedings. The Care of Children Act 2004 (COCA), which is concerned with aspects of guardianship, custody, and contact, and the Children Young Persons and Their Families Act 1999 (CYPFA), which is concerned with child protection and youth justice, are discussed. Some reference will also be made to the role of the Youth Court. Overall, there is no New Zealand statute providing any legislative prescription as to whether, when, or how children's views and wishes be obtained, the issue is left solely to individual Judicial discretion in all respects. The author, a Family Court Judge, presents his views on how he approaches such matters.

Children's views about parental separation.

Qu L and Weston R
The Longitudinal Study of Australian Children annual statistical report 2014. Melbourne, Vic. : Australian Institute of Family Studies, 2015: 13-37
Children have traditionally been shielded from involvement in separation and living arrangements, in part to protect them from any distress but also due to the belief that children have difficulty articulating their views and making meaningful contributions. This chapter explores the opinions of 12-13 year old children from separated families, drawing on new data from 'Growing Up in Australia, the Longitudinal Study of Australian Children' (LSAC). It investigates how the children felt about their parents' separation, how they described the quality of their parents relationship, the proportion who wanted and believed they did have input into decisions affecting their living arrangements, their views about their care-time arrangements, and how their views differed by gender, duration of parental separation, and their care-time arrangements. The findings reveal that children's views about parental separation are diverse and that children in this age group want to have a say in their own living arrangements.

When mothers stay: adjusting to loss after relocation disputes

Parkinson P and Cashmore J
Rochester, N.Y. : Social Science Research Network, Social Science Electronic Publishing Inc., 2014.
This paper explores the experiences of mothers after an unsuccessful relocation dispute in Australia. Fifteen women were interviewed three times over a 4-5 year period after they had unsuccessfully applied to relocate, regarding issues such as coping and adjusting, accepting the decision, and the relationship of the children with their father. Four factors seemed to have made the most difference in terms of being able to adjust - or not - to the adverse outcome: the degree of control they were able to exercise over their own future; their recognition that the children benefited from a close relationship with their father; the father's degree of involvement with, and responsibility for, the children; and the level of toxicity in the father-mother relationship. The implications for improving decision-making in relocation cases is also discussed. The findings are part of a broader longitudinal study of the outcomes of relocation disputes.

Practitioners' opinions of best interests of the child in Australian legislation.

Harmer A and Goodman-Delahunty J
Psychiatry, Psychology and Law v. 21 no. 2 2014: 251-271
This article presents findings from an online survey of 710 practitioners working in child and family law in Australia, regarding their views on the best interests of the child criteria in s60CC of the Family Law Act 1975 (Cth), how they apply it, and the weighting given in different circumstances and for different age groups. It particular, the survey investigated differences in how it was applied to younger children, aged 1-2 years, versus older children, aged 11-12 years. Protecting the child from harm was rated most important regardless of the child's age, whereas the importance of a relationship with both parents and the children's own views were seen as depending on the child's age.

Influencing factors and adolescent input in custody arrangement decisions

Hartenstein J
"This [American] study produces a grounded theory of how parents make decisions regarding the custody arrangements of their children in the divorce process. Eleven parent/adolescent pairs in shared physical and legal custody arrangements were interviewed. Ten factors were found to influence the custody arrangement decisions of divorcing parents: former partner, children, work, new partner, use of a lawyer, role of family, parenting role, place of residence, finances, and divorce. Parents also weighed perceived costs and rewards when making custody arrangement decisions. In addition, an understanding of the involvement of an adolescent in the custody arrangement decisions was gained through this research. The majority of adolescents in this study had some type of input in the custody arrangements at one point or another. Parents and adolescents both expressed concerns with involving adolescents in custody arrangement decisions as well as an appropriate age for adolescent involvement, and how to determine when an adolescent is ready to be involved in the custody arrangement decisions. Custody arrangement decisions are complex decisions that parents and adolescents face; a number of factors are considered and the custody arrangement decision making process varies for all families."--Author abstract.

Children's 'wishes and feelings' in relocation disputes

Cashmore J and Parkinson P
Rochester, N.Y. : Social Science Research Network, Social Science Electronic Publishing Inc., 2014.
The issue of relocation is one of the most difficult issues in family law and there is little consensus on how courts should determine such disputes. To add to the research on this matter, this paper explores children's perspectives of relocation and the impact it has on their lives and relationships. It presents findings from an Australian longitudinal study on relocation involving 80 parents and 132 children and young people, conducted from 2006 to 2012. Interviews were conducted with 33 of these children regarding whether they wished to move or not, their relationship with the non-resident parent before and after any relocation, relationships with step-parents, changes in residence arrangements, leaving school and friends, and travelling between residences. Comparisons with a parallel study conducted in Otago, New Zealand, are also briefly discussed.

Family law proceedings and the child's right to be heard in Australia, the United Kingdom, New Zealand, and Canada.

Fernando M
Family Court Review v. 52 no. 1 Jan 2014: 46-59
The United Nations Convention on the Rights of the Child gives children the right to express their views freely in any proceedings affecting them. However, there is much debate about the meaning of this provision and what is required for compliance. This article compares how it is interpreted and applied in four comparable family law jurisdictions: Australia, New Zealand, the United Kingdom, and Ontario in Canada. Recent initiatives to promote children's participation are also discussed.

Express recognition of the UN Convention on the Rights of the Child in the Family Law Act : what impact for children's rights to be heard?

Fernando M
University of New South Wales Law Journal v. 36 no. 1 2013: 88-106
From June 2012, the Family Law Act 1975 now includes references to the United Nations Convention on the Rights of the Child in its section governing parenting arrangements for children whose parents have separated. This article examines the significance for the rights of children who are the subject of family law proceedings, with particular focus on the child's right to be heard.

Parents, children and Family Relationship Centres : what's working?

Brown T and Campbell A
Children Australia v. 38 no. 4 Dec 2013: 192-197
This article reports on a study of parents' and children's responses to the service they received at two Family Relationship Centres (FRCs) in Perth, Western Australia. Family members who had attended either the Mandurah or Joondalup FRCs sponsored by AnglicareWA between 2010 and 2012 were invited to complete a survey that asked them for their views on the services they had received. A total of 74 parents, representing 139 children, completed the survey. Findings indicated significant satisfaction with the two-hour group session that introduces the work of the FRCs, with parents reporting they could remember the main messages from the session. A surprising finding, and one that has not been reported elsewhere, is that parents expressed an unwillingness to invite their own children to participate in the work of the Centres, although the majority of the respondents agreed in principle that children should take part. The implications of this finding are briefly discussed.

I wish the views were clearer : children's wishes and views in Australian family law.

Campbell A
Children Australia v. 38 no. 4 Dec 2013: 184-191
In 2006, legislative changes were made to the Australian Family Law Act 1975. These changes included a revision of the matters that must be considered when determining children's best interests following parental separation, at Section 60CC. This section lists two 'primary considerations', which relate to the child's having a 'meaningful relationship' with both parents and ensuring that children are safe in their interactions with their parents and others in their lives. The first of the 'Additional considerations' under Section 60CC concerns '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'. This consideration differs from that in the pre-2006 Act, which referred to a child's 'wishes' rather than her/his 'views'. There is evidence, however, that those working in the family law system may not yet have made the shift towards understanding what these changes may entail. In this article I explore the differences between the concepts of 'wishes' and 'views' as they relate to children in family law matters. I argue that these concepts are qualitatively different, and that children's 'views' are far more encompassing than their 'wishes'. Moving to a far broader understanding of children and their ability to understand issues that directly affect their lives may lead to the development of more comprehensive decisions about their futures.

How can we best listen to children in family law proceedings?

Fernando M
New Zealand Law Review no. 3 Sep 2013: 387-407
This article explores how children's views are heard in adversarial family law proceedings, comparing practices in New Zealand, Australia, Canada and the United Kingdom. How those views are heard impacts upon the quality of evidence available to the court and on children's experiences of proceedings.

Different views? Children's lawyers and children's participation in protective proceedings in New South Wales, Australia.

Ross N
International Journal of Law, Policy and the Family v. 27 no. 3 Dec 2013: 332-358
In New South Wales, children's lawyers are made available to represent all children who are the subject of child protection proceedings. This article investigates how these lawyers approach this role and how much contact they have with the children. It discusses some of the issues in children's representation, participation, and rights in legal matters, and presents findings from a 2006 study with 21 lawyers in New South Wales. Lawyers reported that they represented children in very different ways, reflecting ambiguity about how to interpret these roles and involve children as clients or the subject of best interests representation.

The High Court and family law : two recent excursions.

Brereton P
Family Law Review v. 3 no. 2 Apr 2013: 63-79
This article reviews two recent family law cases that went before the High Court of Australia. The first, Kennon v Spry, considers whether the assets of a discretionary trust could be counted as property in cases of separation or divorce. The second, Bookhurst v Bookhurst, examines how the views and wishes of children should be taken into consideration and weighted. This case involved shared care arrangements in a context of family violence.

Children's direct participation and the views of Australian judges.

Fernando M
Family Matters no. 92 2013: 41-47
Of the hundreds of children's matters decided in Family Law Courts in Australia each year, there are only one or two cases in which a judicial officer will meet with a child. This article discusses the issue of children's direct participation in family law matters by examining why some judges choose to hear directly from children. The article discusses judges' views on meeting with children, drawing on results from the author's survey of Australian family law judicial officers about their experiences and attitudes to meeting with children. It examines why meetings between Australian judges and children are so rare and makes recommendations for how children can better be heard. These issues are discussed in the context of the international literature on children's views about their level of participation in family law proceedings.

Hearing children in court disputes between parents

Mackay K
Edinburgh : Centre for Research on Families and Relationships, 2013.
Previous research has found that though children have the right to have their views taken into account in parenting disputes in court in Scotland, the majority of children do not have their views requested or taken into consideration. This paper summarises findings from a new study that collated data on the actual views expressed by children and on the impact of those views on the outcome of the cases. The study reviewed 208 cases of contact dispute in 2007, concerning 299 children. It examined whether these children had their views requested, and - for the 86 cases where both the children's views were taken and the court outcome known - whether the outcomes were consistent with the children's wishes. The findings highlight children's struggles to be heard and the assumption by the court that contact with both parents is the best outcome for the child - even in cases where children raise concerns of abuse.

International models of child participation in family law proceedings following parental separation/divorce.

Taylor N, Fitzgerald R, Morag T, Bajpai A and Graham A
International Journal of Children's Rights v. 20 no. 4 Oct 2012: 645-673
In 2009, the Childwatch International Research Network surveyed their members about how children's right to participation is respected in private family law proceedings in their country, such as through court processes, within alternative dispute resolution, use of specialist professionals or customary law. This article summarises the findings from the 13 member nations that responded, illustrated with case studies from Australia, India, Israel, and New Zealand. The survey found a wide variety of methods used to engage and include children in decision-making following parental separation.

An evaluation of Victoria Legal Aid's Kids Talk Program 2007-2010

Harris M
Melbourne, Vic. : Victoria Legal Aid, 2012.
Victoria Legal Aid introduced the Kids Talk Program in 2007 to increase parents' and family members' capacity and openness to understand children's views, concerns and wishes, as part of their Roundtable Dispute Management process. It is a child inclusive process, which means the child is directly involved without attending the RDM conference itself. Each case is carefully assessed for suitability, so Kids Talk only takes place in a small percentage of RDM conferences: in the 2007-2010 period, no more than 5.5% of RDM conferences in any one year included Kids Talk. This evaluation report investigates the strengths and weaknesses of Kids Talk as a child inclusive intervention, and whether it achieves its goals of improving parenting agreements, taking into account children's views and developmental needs, doing no harm, improving the post separation parental relationship, and producing child-focused outcomes. The evaluation draws on interviews with parents and other significant carers, lawyers, child consultants, chairpersons, and case managers. Recommendations for program development are presented.

A qualitative synthesis of children's participation in custody disputes.

Mildon R and Devine B
Research on Social Work Practice v. 22 no. 4 Jul 2012: 400-409
This article identifies what is known about children's views and involvement in custody and access decision-making in family law proceedings. It provides a synthesis of qualitative studies from the last studies in Australia and overseas, addressing issues such as first learning that their parents were separating, concerns about separation, adjustment to separation, sources of informal and professional support, experiences of parenting plans, participation in decision-making about residence and contact arrangements, experiences of professionals and child representatives, and judicial interviews. The studies indicate that children generally want to be engaged in the decision-making process regarding custody and access, even if they are not making the final decisions.

Shared parenting time in Australia : exploring children's views.

Campo M, Fehlberg B, Millward C and Carson R
Journal of Social Welfare and Family Law v. 34 no. 3 2012: 295-313
This article explores children's own descriptions and views of their shared care arrangements in Australia. It draws on interviews with 22 children conducted as part of a larger, 3-year study with separated parents regarding changes to post-separation parenting and financial arrangements. The children were aged between 10 and 18 years at the time of interview and were aged between four and 12 at the time of their parents' separation. Topics include types of parenting arrangements used, children's involvement in decisions about their parenting arrangements, complaints or concerns regarding step-parents, experiences of shared time, practical difficulties, and parental conflict. Both positive and negative comments are reported.

Hearing the voices of children in Alberta family proceedings: the role of children's lawyers and judicial interviews

Bertrand L
Calgary, Alta. : Canadian Research Institute for Law and the Family, 2012.
This Canadian study explores legal professionals' experiences representing children in both custody and access and child welfare proceedings. It focuses on two mechanisms for allowing the voice of the child to be heard in family cases in Alberta: providing legal counsel for the child and conducting judicial interviews with children to ascertain their views and wishes. 29 professionals were surveyed, regarding their background information, experiences with child representation, characteristics of meetings with child clients, approach taken to child representation, and judicial interviews with children.

Proposed guidelines for judges meeting with children in family law proceedings.

Fernando M
Family Law Review v. 2 no. 4 Sep 2012: 213-224
This article proposes a set of guidelines on how to conduct judicial meetings with children in parenting disputes. Currently, judicial meetings with children are rare, inconsistent, and subject to concerns by some judges and legal professionals. Thus, guidance on consistent best practice would be a useful resource. This article sets out the guidelines regarding principles, deciding whether to meet with children, procedures, and disclosures by children, with a discussion of the rationale behind each point.
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