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

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

Final Report 2018

Rachel Carson, Edward Dunstan, Jessie Dunstan and Dinika Roopani

Research Report— June 2018
A photo of a middle aged gentleman and a teenage boy sitting on the floor and leaning against a sofa

Executive summary

This report sets out findings from the Children and Young People in Separated Families: Family Law System Experiences and Needs project, a qualitative study commissioned and funded by the Australian Government Attorney-General's Department (AGD). This study aimed to investigate the experiences and needs of young people whose parents had separated and had accessed the family law system.

The study was comprised of in-depth, semi-structured interviews carried out between May 2017 and April 2018, with 61 children and young people aged between 10 years and 17 years (supplemented by interviews with 47 parents of these children). The interviews with 47 parents of these children were undertaken by telephone to enable the collection of demographic information by way of background to the data provided by the children and young people. These data enabled the research team to understand the services accessed by the parents and the pathways used to resolve their family law matters. Against this backdrop, the data from the interviews with children and young people provided rich insights into the experiences and needs of children and young people whose parents had separated and had accessed the family law system.

In this report, the authors make extensive use of direct quotes in order to provide a direct voice for participating children and young people and to ensure that, as far as possible, their perspectives are made available in their own words. This enables a deeper understanding of how children and young people articulate their views and experiences in this context.

Key findings

Sample and demographic profile of families

  • The participating families in the study lived across four states: Victoria (36%), New South Wales (34%), Queensland (19%) and South Australia (11%) and had an average of two children.
  • Among the children and young people in the study, just over half were male (56%) and the average age of participants was 13 years. Most were in the process of completing secondary school (74%), with a further 27% in Years Four to Six at primary school.
Characteristics of children and young people and their families

Children and young people reported fairly positively regarding their overall health and wellbeing over the previous six months:

  • More than half of the children and young people rated their overall health as excellent or very good (55%) and a further 32% rated their health as 'good'.
  • Eighty-four per cent reported feeling happy with their life in general all or most of the time.
Parenting arrangements
  • Most children and young people were living in 'shared-care' arrangements (26%) or spent most or all nights with their mother (64%). Around one in five participants never saw one of their parents (18% never saw their father and 3% never saw their mother).
  • Twenty-one per cent of young people saw their non-resident parent at least once per week.

It is worth nothing that 50% of parents reported that they held safety concerns for themselves and/or their children as a result of ongoing contact with the other parent. The main issues of concern were: emotional abuse (64%), mental health issues (61%), violent or dangerous behaviour (32%) and alcohol or substance abuse (21%).

Engagement with family law system services

When asked about contact with family law services during and after separation, parents had accessed an average of eight services when finalising parenting matters, with the main services including:

  • lawyers (96%)
  • counselling, family dispute resolution (FDR) and/or mediation (94%)
  • court services (83%)
  • family consultants/report writers (60%)
  • independent children's lawyers (ICL) (36%).

The main pathways parents used to finalise their parenting arrangements were:

  • courts (62%)
  • counselling/FDR/mediation (21%)
  • lawyers (11%)
  • discussions with the other parent (6%).

Issues important to children and young people in making post-separation parenting arrangements

Listening to and supporting children and young people throughout the process of separation
  • Most children and young people (76%) wanted parents to listen more to their views in relation to parenting arrangements and regarding the separation more generally, to provide them with space and time to process events, and for their parents to respect their views as their own even if they disagree with them.
  • Of those children and young people who indicated that they felt both parents listened to them (21% of participants), all except one felt either quite close or very close with both parents.
Pre- and post-separation events shaped participation in decision making about parenting arrangements
  • Experiences of separation were important in shaping the child or young person's views on parenting arrangements and their support needs throughout the process.
  • Young participants sought support from parents and others as they processed the change in their living circumstances and relationships.
  • Participants wanted their views to be taken seriously by family law and related services, in particular when safety concerns were raised.
Foster communication and relationship development
  • Parent-child communication emerged as important in helping children and young people to accept their new living circumstances, build new post-separation relationships with their parents and better understand what the separation process and the making of parenting arrangements involved.
  • Participants needed time to build/rebuild relationships with each of their parents post separation. This process required their parents to listen to them, take interest in their individual lives and invest in quality time with them.
Allow flexibility to change, ongoing communication and a meaningful say in parenting arrangements
  • More than one-third (38%) of children and young people described wanting ongoing communication with parents and others to understand more about what was going on in the post-separation context.
  • Children and young people indicated that they would like to be kept informed regarding various aspects of the legal process. This involved knowing more about who was representing their parents; who was (if anyone) representing them; what the possible outcomes were; who was determining the parenting arrangements; what the steps were in the decision-making process; when would matters be decided; and when and how they would be able to express their opinion on matters.
  • In the longer term, children and young people valued flexibility in their arrangements.
  • Parenting arrangements need to reflect safety concerns and may require change to better reflect the best interests of the child or young person.

Children's experiences with family law system services

Children and young people participating in this study were asked about their experiences of any legal (including courts, legal services (including ICLs) and family reports/assessments), or non-legal (such as FDR, Children's Contact Services and counselling services) family law system services that their families engaged with when separating.

Children and young people's responses varied in the degree to which services engaged with, listened to and acknowledged their views and experiences

The quantitative data together with the qualitative descriptions of service experiences from participants suggest that there were mixed experiences in relation to the extent to which children and young people identified service providers as acknowledging their views and experiences. Specifically:

  • Most participating children and young people who could recall accessing an ICL (n = 14), reported meeting their ICL (n = 11), with almost half of these participants indicating that their ICL acknowledged their views.
  • In relation to family consultants/report writers, of those children and young people who could recall engaging with these professionals (n = 20), half indicated that their views were not acknowledged (n = 10), although some reported that they were acknowledged or somewhat acknowledged (n = 9).
  • Although only a small proportion of participants whose families accessed FDR could recall doing so (n = 12), only three reported that they had met the FDR practitioner or mediator, but each of these participants reported that their views had been acknowledged by these professionals.
Some children and young people identified as direct beneficiaries of family law system services but positive experiences were more likely to be described in relation to non-family law related services
  • Most children and young people who discussed engaging with these family law system professionals described feeling negatively towards the court process (n = 11), the family consultant/report writer (n = 11) and the ICL (n = 7). Most children and young people were also dissatisfied with either their level of input, or awareness, of the decision-making process or the final parenting arrangements.
  • On the other hand, participating children and young people were more likely to describe being direct beneficiaries of post-separation counselling, and more commonly reflected positively on the support that they received from counsellors.
Mixed views and experiences of participation in family law system services
  • Some participants described their engagement with these family law system professionals as facilitating participation in the decision-making process regarding parenting arrangements.
  • The responses of a substantial proportion of children and young people with experiences of the family law system, however, suggested that the approaches adopted by the service professionals with whom they interacted, operated in a way that limited their practical impact or effectively marginalised their involvement in decision making about parenting arrangements. In particular, children and young people were more likely to describe feeling excluded from parenting arrangements made pursuant to family law proceedings if they did not have the opportunity to speak with or meet with the legal professionals or court personnel in their cases.
  • Perceived inaction on the part of family law system professionals, particularly in response to safety concerns raised by children and young people, was identified as causing distress by a number of participants who reported some level of engagement with family law system professionals.

Services and supports that children and young people find to be of assistance

  • Most participants (n = 43) found family (one or both parents, grandparents, siblings or other extended family) to be of some assistance in coping with the circumstances of their parents' separation, while just over half of the participants (n = 33) identified friends and peers as part of their important support structure in the context of their parents' separation.
  • Approximately half of the participating children and young people described receiving support from their school during or after their parents' separation (n = 30), with this support primarily from interactions with counsellors (n = 13) or teachers (n = 17).
  • A majority of participants had some engagement with mental health professionals and services (n = 38) such as psychologists or psychiatrists, Headspace and Kids Helpline. More than three quarters (n = 30) of these young participants described these services as helpful in some capacity.

Moving forward with effective professional practice: 'Give children a bigger voice more of the time'

Key characteristics of effective professional practice from the perspectives of the participating children and young people included:

  • space to speak and more effective listening to their views and experiences (64%)
  • that professionals take steps to build trust with the children and young people with whom they interact (including via qualities such as patience, empathy and respect), as well as be more mindful of children and young people's needs (46%)
  • that professionals engage in open communication by providing more information relevant to the decision-making process in their cases (38%)
  • that professionals act protectively and address and respond to their concerns and keep children and young people informed about issues affecting them.

The data in this current study suggest that a child-inclusive approach be adopted incorporating the features of effective professional practice outlined above and following an approach that:

  • enables the relevant children and young people to contribute to and be accurately heard in the decision-making process and to be kept independently informed of the nature and progress of this decision-making process
  • provides a clear and accurate explanation of the decision made
  • provides access to ongoing therapeutic support and assistance as required
  • accommodates the potential for flexibility to change parenting arrangements and have ongoing and meaningful communication.

While further research may inform the development of professional practice and service delivery specific to particular judicial, legal and non-legal professionals and service providers, a commitment to this approach would importantly be a step towards meeting the loud and clear calls from participating children and young people to 'give children a bigger voice, more of the time'.

Authors and Acknowledgements

This report was commissioned and funded by the Australian Government Attorney-General's Department (AGD).

The authors would like to acknowledge the support and assistance provided by the AGD, in particular by AGD officers Sue Harris, Jackie Aumann, Machiko Hodge, Rhiannon Walker and former AGD officer Tamsyn Harvey.

We extend our particular thanks to the children and young people and their parents who were so generous with their time and efforts in participating in this research. The insight into the views and experiences of this wonderful group of children and young people is invaluable.

Particular thanks also to the Family Court of Australia, the Federal Circuit Court of Australia and the Family Court of Western Australia, and the members of the research and ethics committees and the Children's Committee of both courts. Special thanks also to the ethics committees for Uniting Care Queensland and Relationships Australia New South Wales and the Research Advisory Group of Relationships Australia Queensland.

We would like to acknowledge and thank the many organisations that tirelessly supported us with the recruitment of participants, including the Family Court of Australia, the Federal Circuit Court of Australia and the Family Court of Western Australia, National Legal Aid and state and territory legal aid commissions, national and state and territory Children's Commissioners, law societies, bar associations, the Family Law Section of the Law Council of Australia, the National Association of Community Legal Centres, together with individual community legal centres, Relationships Australia, UnitingCare, EACH (Social and Community Health), Catholic Care and Anglicare.

We would like to acknowledge and thank Dr Alissar El-Murr, Senior Research Officer, Australian Institute of Family Studies (AIFS), Dr Monica Campo, former Senior Research Officer, AIFS and Jade Purtell, Senior Research Officer, AIFS, for their contributions to the fieldwork for this study. We also thank the AIFS library team, and in particular Gillian Lord for her research assistance, together with the AIFS communications team, and Katharine Day in particular for editing this report.

We also thank Anne Hollonds, Director of AIFS; Kelly Hand, Deputy Director (Research); and Dr Michael Alexander, Deputy Director (Corporate and Strategy) for their advice and support throughout this research and Dr Stewart Muir for reviewing this report. We extend our sincere thanks to Dr Rae Kaspiew for her vision and support in the research design and early implementation of this project.

Views expressed in this publication are those of individual authors and may not reflect those of the Australian Government or the Australian Institute of Family Studies.

Cover photo: © iStockphoto/KatarzynaBialasiewicz

Publication details

Research Report
Published by the Australian Institute of Family Studies, June 2018.
111 pp.
Suggested citation:

Carson, R., Dunstan, E., Dunstan, J., & Roopani, D. (2018). Children and young people in separated families: Family law system experiences and needs. Melbourne: Australian Institute of Family Studies.

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