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

Final Report 2018
Research Report – June 2018

1. Introduction

This report presents the findings of the Children and Young People in Separated Families: Family Law System Experiences and Needs project. This qualitative study was commissioned and funded by the Australian Government Attorney-General's Department (AGD) and conducted by the Family Law and Family Violence team at the Australian Institute of Family Studies (AIFS).

The aim of this project was to investigate the experiences and needs of children and young people whose parents had separated and had accessed the family law system,1 focusing on children and young people's experiences of these services and how the family law system may better meet their needs. In responding to this research aim, the research questions explored were:

  • In making parenting arrangements after separation, what are the important issues from the perspective of children and young people?
  • What do children and young people find of assistance in dealing with parental separation; for example, services, peer support, family support?
  • What is the nature of the experience of children and young people whose families have used various family law system services in relation to:
    • how the experiences of children and young people are acknowledged in the services and the extent to which children and young people are themselves the direct beneficiaries of services
    • whether engagement with these pathways supported their participation in decisions about parenting arrangements
    • what their experience of participation or non-participation was in this context
    • differences and similarities in the experiences of children and young people using these different pathways
    • what the characteristics are of effective professional practice from the perspective of children and young people.

Limited insight was also provided from this cross-sectional approach in relation to the following questions, although these questions were predicated on longer-term insights being available from the future implementation of a longitudinal approach:

  • What characterises the lived experience of children and young people growing up in separated families and what are their experiences of different kinds of parenting arrangements, relationships with fathers, mothers, siblings and step-families (parents and children)?
  • What are the dynamics underlying changes in parenting arrangements, and whether they are child or adult focused?
  • What do children and young people find of most assistance when they are growing up in separated families (e.g. services, peer support, family support)?
  • How do children and young people experience change in parenting arrangements, and the extent to which use and reuse of services is positive, negative or mixed from the perspective of children and young people?
  • What are the differences and similarities in the circumstances of, and outcomes for, children and young people using the different pathways over the longer term?

When developing and implementing the project methodology for this research, the AIFS team liaised with over 500 legal and non-legal organisations, and more closely with over 70 of these organisations to circulate recruitment materials on an ongoing basis. The fieldwork interviews based on these recruitment activities were carried out between May 2017 and April 2018, with 61 children and young people aged between 10 years and 17 years participating in this study by way of in-depth interview, and with data also collected via in-depth interviews with 47 parents.

1.1 Background

The best interests of children and young people are central to the design and operation of Part VII of the Family Law Act 1975 (Cth) (FLA). Section 60CA of the FLA requires the court to regard the 'best interests of the child' as the paramount consideration when making orders pursuant to Part VII in parenting/children's matters. Legislative guidance is provided for decision makers when determining the best interests of the child or young person, with the court required to consider two primary considerations stipulated in the FLA, namely, the benefit to the child of having a meaningful relationship with both parents (s 60CC(2)(a)) and the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Where these considerations are in conflict in a given situation, the protection from harm consideration in s 60CC(2)(b) is to be prioritised over the meaningful relationship consideration (s 60CC(2A)).

Regard is also to be given to the additional considerations outlined in s 60CC(3) and, of particular note in the context of this research, one of these additional considerations requires the court to consider '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 that it should give to the child's views' (s 60CC(3)(a)). Importantly, children and young people cannot be compelled to express a view in the context of Part VII proceedings (s 60CE).

Amendments to the FLA came into operation in 2012,2 arguably placing more emphasis on the representation of children's best interests in family law proceedings with the introduction of s 60B(4) which specifies, 'An additional Object of Part VII is to give effect to the UN Convention on the Rights of the Child' (UNCRC). The UNCRC, to which Australia is a signatory, recognises the rights of children/young people to participate in decisions relevant to their care (Article 9) and to make their views known in administrative and judicial proceedings affecting them (Article 12). More specifically, Article 12 emphasises the provision of the opportunity for a child/young person to be heard in these proceedings (directly or through a representative) and obliges States Parties to ensure that a child/young person who is capable of forming their views is afforded the right to express those views freely, and that their views be given due weight in accordance with their age and maturity. In practice, section 60B(4) provides legislative clarification that the provisions of Part VII are to be interpreted in light of these UNCRC principles.3

Seminal case law such as In the Matter of P and P (1995) 19 Fam LR 1, Harrison v Woollard (1995) 18 Fam LR 788 and R and R: Children's Wishes (2000) 25 Fam LR 712 provide guidance in relation to the weight that may be accorded to the wishes (now views)4 of children and young people when determining their post-separation parenting arrangements.5 In Harrison v Woollard (1995) the Full Court of the Family Court of Australia outlined certain factors as being of assistance to the court in assessing the weight to be placed on a child's wishes/views, such as the strength, duration and basis of the child's/young person's wishes/views, and their maturity, including their understanding of the implications of the relevant issues. While Fogarty and Kay JJ identified that the weight to be given to a child's wishes/views 'will depend upon the children's cognitive age and level of maturity in each particular case', and that this exercise was subject to the best interests of the child principle (in s 60CA), the court did state that 'the research supports a rebuttable presumption that children of the age of seven are capable of making a considered decision, a decision in which reason is employed' (p. 823). More generally, the importance of giving appropriate and proper consideration to a young person's wishes/views was clearly expressed in this case:

A child's wishes must not only be considered, but must be shown to have been considered, in the reasons for judgment of the trial judge. Furthermore, if the trial judge decides to reject the wishes of a child, then clear and cogent reasons for such a rejection must be given, particularly if the separate representative submits that the Court should give effect to such wishes. The wishes of the children should not be discounted simply because they are expressed by children. (Baker J)

These seminal cases, together with more recent case law including an appeal to the High Court, Boldemonte and Boldemonte [2017] HCA 8, also provide that the views of children/young people 'are but one consideration of a number to be taken into account in the overall assessment of a child's best interests', and are not otherwise decisive or determinative in and of themselves.

For more than 15 years, concerns have been raised about the extent to which existing legislative and practice measures are sufficient in fulfilling Australia's obligations as a signatory to the UNCRC with respect to the participation of children and young people in decision making in the family law context that affects them (e.g. ALRC, 1997; Australian Child Rights Taskforce, 2011; Kaspiew et al., 2014). The FLA currently provides that the court may inform itself of any views expressed by the relevant children and young people in Australian family law proceedings by: (1) the appointment of an independent children's lawyer (ICL) (s 60CD (2)(b); s 68L); (2) an order for a s 62G family report or a s 11F memorandum from a family consultant (s 60CD(2)(a)); and (3) 'by such other means as the court thinks appropriate', subject to the rules of the court (s 60CD(2)(c)), which may include meetings between judicial officers and the relevant children and young people. Although each of these mechanisms will be considered in the substantive chapters of this report, each will be briefly outlined below.

Independent children's lawyers

Prior to 2006, the role of the ICL or 'child representative' (as they were previously known) developed through case law and practice guidelines.6 Legislative reform of the FLA in 2006 enshrined the role and obligations of ICLs in proceedings pursuant to Part VII. Section 68L of the FLA7 facilitates the appointment of an ICL by providing that a court may order that a child be independently represented by an ICL who will represent their interests in the Part VII proceedings. Section 68LA outlines the role of the ICL and provides that while an ICL is not obliged to act on the child's instructions in relation to the proceedings, they must ensure that any views expressed by the child in relation to the proceedings are fully put to the court.8

While there is no express legislative requirement in the FLA for the ICL to meet with, or speak to, the relevant child or young person, s 68L(5) provides that the court may make such orders as to allow the lawyer to ascertain the child's views, unless such enquiry would be inappropriate due to their age or maturity; or some other special circumstance (s 68L(6)). The ICL Guidelines (National Legal Aid, 2013) indicate that although it is expected that the ICL will meet the child, this is not required if the child is under school age, where there are exceptional circumstances or if there are significant practical limitations.

In practice, differences have been identified in the approaches that ICLs take towards representing the best interests of children and young people, with a substantial proportion of ICLs indicating that they viewed direct consultation for the purpose of eliciting views to be beyond their role and expertise (Kaspiew et al., 2014). In addition to examining these varying approaches to representing the best interests of children and young people and facilitating their participation in the proceedings, research including Kaspiew et al. (2014) and earlier by Ross (2012a, 2012b, 2013a, 2013b) and Parkinson and Cashmore (2008) has identified other functions forming part of the ICL role that relate to their evidence gathering and litigation management functions (see also more recently Bell, 2016a, 2016b).9

AIFS research (Kaspiew et al., 2014) examining the use and efficacy of ICLs in the Australian family law system, identified that ICLs brought a 'child focus to proceedings that would otherwise be conducted bilaterally and adversarially' (p. xii). Nevertheless, concerns were raised by both professional and lay participants in that study, about the 'capacity and commitment' of some ICLs, with both 'individual and systemic issues identified as impacting on effective ICL practice' (Kaspiew et al., 2014, p. xii). Most children and young people (and their parents) participating in that study described their disappointment at the limited interaction with, or failure to meet, the ICL appointed in their case. Together with the absence of, or limited interaction with the ICL, young participants raised concerns about the failure to obtain and/or communicate their views to the court, and the lack of ongoing communication regarding the progress of the litigation or explanation of the outcomes when describing their experiences of ICLs (Kaspiew et al., 2014, Chapter 8). This research, together with that undertaken more recently including by Anderson et al. (2016); Bala, Birnbaum, & Bertrand (2013a, 2013b); Beckhouse (2015a, 2015b, 2016); and Bell (2016a, 2016b, 2017) will be considered in greater detail in Chapter 4.

Family reports and memoranda

As noted above, a court may order parties and/or children to the proceedings to attend meetings with a family consultant (in-house or court-appointed (external) psychologist or social worker)10 to enable the family consultant to prepare a family report (s 62G) or a memorandum (s 11F) that will inform Part VII proceedings. A family consultant directed to prepare a report must ascertain the views of the child/young person in relation to relevant matters in the proceedings and include these views in the report (s 62G(3A)), with exceptions provided for those cases where it is inappropriate to ascertain the views due to the child's age or maturity, or any other special circumstance.

The Professional Standards of Practice for Family Assessments and Reporting (2015) establish minimum standards for the conduct of family assessments and reports ordered under s 62G or commissioned privately. Proper engagement with children and young people is emphasised, providing that they be advised of the purpose of interviews and informed of what will happen with the information that they provide (including the advice that what they tell the family assessor/consultant is not confidential). The Standards also stipulate that family assessors/consultants should be trained and skilled in interviewing children. The findings of family assessors/consultants and recommendations in their reports are often highly influential in determining court outcomes but recent research and commentary suggests that there are significant variations in their preparation and quality.11 The perspectives and experiences of the participating children and young people when engaging with family assessors/consultants and in the family report process will be examined in Chapters 4 and 5 of this report in the context of research relating to the intersection of social science expertise and family law (e.g., Banham, Allan, Bergman, & Jau, 2017; Birnbaum, 2017; Birnbaum & Bala, 2017; O'Neill et al., 2018).

Judicial interviews

There are currently no provisions in the FLA or in the Family Law Rules (FLRs) relating to judicial officers meeting or speaking with children and young people to ascertain their views. Previously, Rule 15.03 of the FLRs (which was removed in 2010) stated that judicial officers could interview a child who was the subject of proceedings under Part VII of the FLA. When this provision was removed, it was noted that such cases did not generally occur and where they did arise, they could be covered by specific orders.12 While in Australia it is rare for a judicial officer to meet and speak with a child or young person directly, it is an option that remains available despite the removal of the express reference in the FLRs.13 In ZN and YH and Child Representative (2002) FLC 93-101, Nicholson CJ noted that, in some instances, it may be appropriate for a judicial officer to meet with a child/young person, particularly when the child is older. Further, where children/young people expressly indicate their desire to directly speak with the judicial officer, it may be argued that the court should be mindful of Article 12 of the UNCRC. Both Australian and international research will be noted in the context of an analysis of reflections from children and young people participating in this study regarding their direct communication with decision makers (e.g. Bala, Bertrand & Birnbaum., 2013; Bala, Birnbaum, & Cyr, 2015; Beckhouse, 2015a; Birnbaum & Bala 2014; Caldwell & Taylor, 2013; Dunbar, 2017; Family Law Council, 2016; Fernando, 2012; Fernando & Ross, 2018; Hunter, 2007; Parkinson & Cashmore, 2007; Young, 2017).

Options for participation in out-of-court decision making

Provision is made in s 60I of the FLA for compulsory attendance at family dispute resolution (FDR) prior to filing applications pursuant to Part VII, except in cases involving a risk of or substantiated family violence or child abuse (s 60J). Families may engage with FDR in fulfilment of this obligation or as the primary means by which to resolve their post-separation arrangements. FDR practitioners (and lawyers and counsellors) are required to provide parties with information about non-court-based family services (s 12E and 12G) and family services outside the court system. They are also required to advise parents that the best interests of their children are to be regarded as the paramount consideration and that children's protection from harm is prioritised over maintaining meaningful relationships with both parents (s 60D).

While the FLA does not specifically require the expressed views of children and young people to be obtained when engaging in FDR, 'child-focused' and 'child-inclusive' approaches to FDR have been developed to accommodate consideration of the views and best interests of children and young people when engaging in decision making in this non-court context. While child-focused practices reflect the consideration of these best interests by FDR practitioners and parents participating in this FDR process, child-inclusive practice involves the child or young person participating in the FDR process via a child consultant who liaises directly with them. The child consultant is then able to communicate the views and experiences of the child or young person to the parents so as to directly inform and specifically focus the parties' engagement in FDR on the best interests of their children.

Some insight into children and young people's experiences of FDR is provided by participants in this current study, which will be considered in Chapter 4, noting relevant literature, including more recent action research conducted by UnitingCare Queensland (Williams, 2016), as well as earlier research (see e.g. Ballard, Holtzworth-Munroe, Applegate, D'Onofrio, & Bates, 2013; Bell, Cashmore, Parkinson, & Single, 2013; Brown & Campbell, 2013; Ewing, Hunter, Smithson, & Barlow, 2015; Graham, Fitzgerald, & Cashmore, 2015; Harris, 2012 regarding the KidsTalk program implemented by Victoria Legal Aid; Inder, 2014; Kelly, 2014; Kaspiew, Lewington, Lynch, & Field, 2013; McIntosh, 2007; McIntosh, Long, & Wells, 2009; Moloney & McIntosh, 2004; Taylor & Gollop, 2015; Walker, 2013; Webb & Moloney, 2003; Yasenik & Graham, 2016).

Perspectives on participation from children and young people

Previous Australian and international research in the family law context14 has established that it is important from the perspective of children and young people to be provided with an opportunity to participate in the decision-making process after separation by having their views heard and considered in this process.

Relevant Australian and international studies have also identified the importance of children and young people being kept informed of the nature and progress of the decision-making process and having decisions and outcomes explained to them as part of this process.15 While prior research suggests that children and young people tend to locate responsibility for the ultimate decisions relating to parenting arrangements with the relevant adults, some differentiation on this point has been identified on the basis of age and or risk/harm profile (e.g. with some older children expressing their views of the appropriate arrangements with particular vehemence and with less reference to the difficulties arising from divided loyalties: Campo, Fehlberg, Millward, & Carson, 2012; Sheehan et al., 2005). More specifically, previous research highlights the importance of facilitating opportunities for children and young people to express their views in relation to the general effects of their parents' separation as well as regarding their preferences for post-separation parenting arrangements (e.g. Birnbaum & Saini, 2013, 2015; Fehlberg, Natalier, & Smyth, 2018; Fernando & Ross, 2018; Fortin, Hunt, & Scanlan, 2012; Mackay, 2013; Marschall, 2017; Qu & Weston, 2015; Quigley & Cyr, 2017; Sadowski & McIntosh, 2016).

The analysis of data from interviews with children and young people in the substantive chapters of this report will be considered against the backdrop of this prior Australian and international research, together with the research outlined earlier regarding the interaction of professionals with children and young people in the family law context. In doing so, the discussion will provide insight into the expectations and experiences of children and young people when engaging with family law system services. It will also explore how listening to the views and experiences of children and young people is critical to the improvement of family law system services.

The discussion and analysis in this report will also explore participating children and young people's perspectives of improvements that may be made to the mechanisms currently used to identify, assess and respond to their views and experiences in the context of post-separation decision making. In doing so, the discussion will have regard to recommendations for reform that seek to address both the representative and therapeutic needs of children and young people (see e.g. Beckhouse, 2015b; Family Law Council, 2016; House of Representatives Standing Committee on Social Policy and Legal Affairs, 2017; Taylor, 2017; Young 2017; Young Peoples Family Law Advisory Group (SA)16).

1.2 Research methodology

As noted at the outset of this report, the core research question for this project was: to investigate the experiences and needs of children and young people whose parents have separated and have used the family law system, with a focus on their experiences of these family law system services and how the family law system may better meet their needs. A series of more specific research questions were also specified for exploration via a qualitative research approach, with the option to accommodate a longitudinal approach at a later date.

Semi-structured, in-depth interviews were conducted with children and young people (n = 61) and with one of their parents (n = 47), with interview schedules developed to cover the key themes emerging in the project research questions. Parents and young people were recruited using multiple strategies through family law services and online communications (see further below). Although children and young people and their parents self-selected to participate in the research, the researchers collaborated with key stakeholders to use a sensitive and targeted recruitment method to engage with families who were using or had used their services. The ethical clearances obtained for this project (see further below) required interviews with children and young people aged 10-11 years of age to take place at least 12 months after the final resolution of their parents' family law matters and at least three months after final resolution for children and young people aged 12-17 years.

Face-to-face interviews were prioritised for children and young people but interviews via an online application (Skype) were undertaken in a small number of situations where geographical access was a consideration, the participant was sufficient in age, they had access to the internet and both the young person and their parent were comfortable with the use of online technology for the purpose of the interview. Interviews with parents were undertaken by telephone to enable the collection of demographic information by way of background to the data provided by children and young people. These data enabled the research team to understand the services accessed by the parents and the pathways accessed to resolve their family law matters.

The interview schedule for children and young people included both a structured and unstructured component. The structured component of the interview was developed to capture data that would provide insight into child and adolescent wellbeing and to facilitate a comparison of the wellbeing of children and young people in this sample to the adolescent sample in the Longitudinal Study of Separated Families (2009), and to the samples in Waves 5 and 6 of the Longitudinal Study of Australian Children. For parents, the structured component was integrated with the open-ended interview schedule and enabled data relating to the nature of the post-separation arrangements and family law system services accessed to be collected by way of background context to the data collected from children and young people. The open-ended component of the interviews supported an in-depth, sensitive and responsive exploration of issues, experiences and perspectives in a context where the participants' views, experiences and circumstances varied within the sample.

The interviews with parents and children and young people commenced in May 2017 and concluded in early April 2018. Interviews were audio recorded on a password-protected, encrypted digital recording device and all recordings were transmitted to the transcription service using a secure electronic transfer. Transcribed interviews were de-identified and stored on the AIFS secure server and then data from the transcriptions were entered into a programmed survey instrument (on AIFS secure internal server) to assist with analysis.

While the primary focus of this report is presenting qualitative findings on children and young people's experiences with family law system services and supports, a secondary, quantitative component is also presented to provide some context within which to examine the qualitative insights and experiences of children and young people. The quantitative data analysis was undertaken using Stata software and is presented unweighted.

Underpinning the research design of this study was an exploratory, grounded theory approach both to the collection and analysis of data.17 Rather than testing preconceived or fixed hypotheses, structured and open-ended research questions guided the data collection relevant to the project research questions, with the literature review developing alongside the data collection and analysis, and aiding the identification and investigation of emerging issues in the research process (Glaser & Strauss, 1967; Charmaz, 2000). In relation to the data analysis, a process of initial open-coding was undertaken to identify the key themes and patterns in the data, which supported the development of the findings grounded in the data. This was followed by further theoretical and selective coding, to examine the variances between the emerging themes and patterns, and led to the development of the core themes - those with the highest frequency and most relevance to the emerging theory (Charmaz, 2000; Dey, 1999; Janesick, 2000; Kelle, Prein, & Bird, 1998; Punch, 1998; Ryan & Bernard, 2000). The core themes identified in this process are developed in Chapter 6 of this report.

Recruitment measures

Families were recruited using multiple strategies, such as through family law services, online communication and the dissemination of recruitment material. The recruitment strategy focused on engaging with parents and young people (10-17 years) indirectly, through promotional materials, at the time services and courts were being used to resolve parenting arrangements. This recruitment strategy primarily targeted families who had commenced but not completed their engagement with services or courts, although a number of services were also able to make contact with families following the recent finalisation of their matters. While young people and their parents ultimately self-selected to participate in the research, the researchers collaborated closely with key stakeholders to engage in sensitive and targeted recruitment methods to engage with families who had used their services. To recruit this purposive sample, the research team liaised with over 500 legal and non-legal organisations, and more closely with over 70 of these organisations to circulate recruitment materials on an ongoing basis, including:

  • the Family Court of Australia, the Federal Circuit Court of Australia and the Family Court of Western Australia
  • Family Relationship Centres (including FDR services providing child-inclusive FDR) including via Relationships Australia, UnitingCare, EACH (Social and Community Health), Catholic Care and Anglicare
  • National Legal Aid and state and territory legal aid commissions 
  • national and state and territory children's commissioners
  • law societies, bar associations and the Family Law Section of the Law Council of Australia
  • the National Association of Community Legal Centres together with individual community legal centres 
  • Women's Legal Services Australia and state and territory women's legal services and domestic and family violence (DFV) services
  • Family Law Pathways Networks
  • youth services
  • community health services
  • school networks.

The research proposal and funding for this project was based on the recruitment of participants in Melbourne, Sydney and Brisbane and in regional and rural areas that were accessible within the cost parameters of the fieldwork component, although recruitment was extended to all states and territories during the course of the project.

Family law, community and youth services shared promotional materials about the study via their websites, social media accounts, e-newsletters and other online networks. In addition to engaging with families through face-to-face services, the research team also utilised a wide variety of online recruitment strategies, enabling us to connect with families that were no longer accessing face-to-face family law services. Finally, targeted advertising through Facebook was also used by the research team as an additional method of connecting with potentially in-scope families.

Promotional recruitment materials (hardcopy and electronic) were developed specifically to engage young people and their parents and to invite them to participate in the study. A poster and postcard were developed to be displayed in waiting areas of family law system services. The eye-catching design featured an image of a dog holding a can on a string with the statement 'Be heard!' above the key study information and contact details for parents and young people to register their interest in participating. These materials were designed to stand out among the other pamphlets and visual materials in the waiting areas of family law services (that typically used fairly generic imagery, such as stock photos of children and families).

The recruitment measures implemented for this study were designed to maximise the reach of the promotional activities and to connect with the broadest possible sample of potential participants, with regard to geographic location, parent and child gender, background, service use and range of experiences. However, the realities of using an 'opt-in' approach are such that the final distribution of the sample was difficult to control.

Screening and sampling procedures

Implementing this 'opt-in' process involved the parent or young person making initial contact with the AIFS research team, via one of several methods (including email, a 1800 number, SMS and a webform). A team member responded to all registrations of interest by either sending an email with some initial screener questions and/or having a brief telephone conversation with the parent to establish whether they were 'in-scope' to participate in the study, as well as to ensure that the research did not impose a burden on participants or cause any harm or unintended consequences.

Detailed protocols were developed to guide the researchers in determining whether a family was 'in-scope', which covered issues related to the timing and details of finalisation of legal and/or settlement processes, any anticipated future proceedings and issues of safety/risk. The screening process was adapted to the circumstances of the family and their contact with family law system services.

Sampling frame

As noted above, children and young people aged between 10 and 17 years could either register their interest in participating themselves18 or were recruited via their parent(s), and their participation was dependent on obtaining both their consent and the consent of one of their parents, as outlined below.

The sample frame for the Children and Young People in Separated Families study consisted of the following key components:

  • The child/young person was aged 10-17 years during fieldwork period.
  • Parents had finalised (or re-negotiated) their matters and had engaged with Australian family law system services no earlier than 2013.19
  • For children aged 12 years and over, a minimum of three months had elapsed since all family law related matters were finalised, and for 10-11 year olds, a minimum of 12 months had elapsed.
  • There was no anticipated issue of safety or risk of conflict arising as a result of the child/young person's participation in the study.
  • Either the participating parent had sole/shared parental responsibility or the parent/guardian with the requisite parental responsibility had provided consent for the young person to participate.

The above screening components were developed to ensure the data reflected the current family law system services as well as possible, while mitigating the risk that engagement with the research would somehow impact on the families' engagement with services and courts (e.g. interview material being subpoenaed). These sampling restrictions were in place as part of the study's Human Research Ethics Committee (HREC) clearances and are discussed in further detail in the ethical considerations section below.

The AIFS researchers established and maintained regular contact with families from the date of initial registration of interest through to the period following the completion of the parent interview and then through to the time of the interview with the child/young person. The length of time between family registration and the child/young person's interview varied due to each families' experiences and was dependent on factors such as the minimum waiting time from finalisation, children/young people needing to wait until after their tenth birthday, and the parent and child or young person's availability to participate in the interviews. On average, it took 189 days (approximately six months) from when families first registered their interest in participating to the completion of the child/young person's interview, ranging from 24 days to 395 days.

Summary of study registrations

Table 1.1 provides a summary of all the registrations of interest to participate received from families during the fieldwork period. Of all family registrations (n = 422), 11% resulted in participation, with 15% of registrations with mothers registered as the parent resulting in a participating family, and 7% of father-registered families resulting in a participating family.

Overall, 29% of registrations were deemed out of scope, with matters not finalised being the most common reason (15% of all registrations), the child being either too young (or in a small number of cases, too old) to participate (4% of all registrations), the registering parent not having parental responsibility and/or consent from the other parent (4% of total registrations - eight fathers and eight mothers) and other reasons including no recent service use, and only the parent wishing to participate in the study.

Five per cent of registrations throughout fieldwork ultimately opted out of the study, on average about three months from the date of registration and generally after at least one follow-up attempt after sending through the initial welcome SMS/email.

Among all registrations of interest, 54% were ultimately categorised as 'no contact' - that is, after receiving an initial registration of interest, despite several contact attempts, the research team received either no response at all or too little to establish whether the family were potentially 'in-scope'. This was slightly higher among registering fathers than mothers (60% of fathers, cf. 48% of mothers).

Table 1.1: Summary of study registration sample
Registration outcome All registrations % 

(n = 422)

Mothers % 

(n = 275)

Fathers % 

(n = 106)

Not specified % 

(n = 41)

Complete 11.4 14.9 6.6 0.0
Opted out 5.2 4.7 3.8 12.2
No contact 54.0 48.0 60.4 78.0
Out of scope 29.4 32.4 29.2 9.8
Child age 4.3 4.7 3.8 2.4
Matters not finalised 14.9 17.8 11.3 4.9
Parental responsibility 3.8 2.9 7.5 0.0
Other reason 6.4 6.9 6.6 2.4

Notes: There were 41 registrations of interest completed by a child/young person where the parent gender was never established. Percentages may not total exactly 100% due to rounding.

The recruitment methods employed as described in this chapter were comprehensive in targeting both metropolitan and regional/rural areas and a broad range of services and access points for families. The achieved sample reflects this maximum variety sampling approach.

1.3 Ethical issues

Given the complicated nature of the research, particularly involving children and young people with complex family dynamics, the research team was cognisant of the care and sensitivity required in approaching every aspect of this study. A key consideration underpinning the methodology of this study was to value and empower young people to have a voice about their experiences of the Australian family law system services and to provide a platform for their suggestions of how to best support young people experiencing parental separation. However, it was imperative that this be done in a sensitive and careful manner so that participation did not cause undue distress or burden on participants.

Ethics approach

The research team developed comprehensive protocols that covered all aspects of engagement with families, but particularly with children and young people, including: recruitment; screening of families; obtaining informed consent (from both the parent and the child/young person); interview procedures; protecting and maintaining participant confidentiality, privacy and safety; responding to distress; reporting obligations; and offering referrals to support services. These protocols equipped the research team with the appropriate strategies applicable to the recruitment and interview process and enabled researchers to respond appropriately where support and referrals were directed. Debriefing of staff took place after interviews with both parents and children and young people (with the AIFS Executive where directed) and there were no circumstances assessed by the research team and AIFS Executive as triggering a notification to be made to a prescribed child welfare authority.

All researchers involved in interviewing parents and children and young people had extensive research experience working with families, children and populations with complex and diverse backgrounds. Further, all researchers who undertook the interviews with children and young people had completed additional training in interviewing children and young people with an experienced psychologist. The research was also guided by reference to relevant research literature regarding research with children and young people (including Greene & Hogan, 2005; Taylor, Gollop, & Smith, 2000; Turoy-Smith & Powell, 2017; Wilson & Powell, 2001).

Two researchers were present at each interview with each child/young person, with one researcher experienced in interviewing children and young people conducting the interview and a second researcher present as an observer and note taker. The second researcher also supported the development of rapport in the interview process, enabled non-verbal expressions and cues to be recorded that would otherwise not be captured by digital audio recordings and ensured any signs of distress were not overlooked during the interview process. This dual-researcher approach is consistent with previous AIFS research with children and young people (e.g. Kaspiew et al., 2014). In these past experiences, the researchers had explained to the child or young person that the second person was there to help take notes so that the main interviewer can focus on engaging directly with the child or young person.

Informed consent

All parents and children and young people who were eligible to take part in the study were provided with an information sheet about the study. Separate participant information sheets were developed for the two participant categories, with the information sheet for children and young people using age-appropriate language.

As with most research involving young people, in order for young people to participate, the research team required both parental consent and the child or young person's consent before commencing the child or young person's engagement with the research. However, given the population of families engaged, and being cognisant of the complexities of parental responsibility, we required that the consent for the child or young person's participation be provided by a parent with requisite parental responsibility (either shared or sole).20

Once parental consent was obtained to speak with the child/young person, the researchers confirmed with the child or young person that they would like to participate. Prior to the interview, a researcher would contact the child or young person by telephone to confirm the interview date and time and answer any queries the child or young person might have for the research team. Before commencing the interview, the researcher would read through an oral consent script and obtain formal informed consent from the child or young person. The voluntary nature of participation and the privacy of participants was reiterated throughout the interview.

At the conclusion of the interviews with children and young people, the researchers provided each participant with details of appropriate support services (Kids Helpline and like services) irrespective of whether they presented as distressed. There were no participants who were assessed as requiring one of the AIFS on-call psychologists to make follow-up contact.

Ethics review process

The AIFS HREC provided the primary ethical review for this study. The research team applied for ethics clearance in July 2016 and in doing so provided the AIFS HREC with project methodology, recruitment materials (including invitations to participate, plain language information sheets, consent scripts and social media material), interview schedules and recruitment and ethical protocols. Ethical clearance was received from the AIFS HREC in September 2016.

Subsequently, the research team engaged with other family law system services for assistance with recruitment activities in support of the study. Although the National Health and Medical Research Council's National Statement on Ethical Conduct in Human Research (2007), seeks to avoid duplication of ethical review when involving multiple institutions (see Ch. 5.3), the research team were required to submit five further applications for ethical review by other HRECs, to enable these organisations to be involved in recruitment activities in support of the study. Applications were made to the ethics committees/research advisory groups of the Family Court of Australia, Federal Circuit Court of Australia, Relationships Australia (New South Wales and Queensland Research Advisory Group) and UnitingCare (Queensland). All five external committees granted clearance for the study during the period of September-December 2016. During the course of the research study, regular updates were provided to the AIFS HREC as well as separately to the five additional HRECs, to keep the committees informed and to seek clearance for any substantive changes to project methodology and/or materials, recruitment activities, protocols or staffing, as well as to advise of any complaints received in relation to the study from participants or members of the public.

Impact of ethical clearance processes

The protracted and complex processes involved in obtaining ethics clearances from six committees reflect the cautious approach to the conduct of research involving children and young people in the family law context. A number of additional measures and safeguards were included in the screening protocols (and were a condition of ethical clearance) to address the potential for harm or distress to participants. This led to a number of challenges for recruitment.

These measures and associated challenges included:

  • The requirement for all matters relating to the separation to be 'fully resolved' with no foreseeable potential proceedings to be initiated by either parent. This requirement led to situations where potential participants were not able to proceed as they were unable to confirm with certainty whether any negotiations or further proceedings were foreseeable.
  • The 12-month waiting period from the date of finalisation of all matters for 10- and 11-year-old participants was an additional requirement arising from the ethical clearance process as a way to mitigate the risk of harm to the younger children. This made recruitment of 'in-scope' families more complicated and protracted, and maintaining families' interest in and commitment to the study over this period proved particularly challenging. In these circumstances, the research team was ultimately only able to recruit and complete 10 interviews with children under 12 years of age.
  • The age range of potential participants presented a challenge in the conduct of this research. Of the 18 registrations that were screened out due to age, six were only just out of scope (8-11 years old), while age information was not entered on the others. In addition, families where at least one child participated also included 23 children who were just out of scope (7-9 years old and 18-20 years old). This would indicate that up to 41 additional interviewees may have been eligible to participate if the age range had been expanded.

Recruitment was primarily achieved through family law services, targeting parents currently accessing services to finalise their separation. This meant having to wait, firstly, for their matters to be finalised, and then for the 3-12 month waiting period to expire before they could participate. Due to this requirement, many of the families that registered their interest did not qualify to participate before the fieldwork was concluded, were no longer interested in participating by the time they did qualify or the research team was unable to contact them at the expiration of the waiting period.

The distress to potential participants arising from the screen outs due to age and stage of proceedings was also notable. While many of those potential participants screened out did not reply to our correspondence, several parents and young people who did so expressed frustration at being screened out due to age or the stage of their proceedings. For participants screened out due to age, the comments of these potential participants indicated their disappointment and their ongoing concern at being 'silenced' due to their age and perceived immaturity. Those who were deemed too old expressed confusion as they felt they stories were 'still relevant and enlightening' for this research. Further, participants screened out due to the stage of their proceedings suggested that their participation in the study would have no impact on their negotiations or that despite their ongoing contact with family law system services, their circumstances were such that there was virtually no chance of changes in parenting arrangements from their perspective.

The protracted ethical clearance process also had implications on the timing of recruitment with a delay in the anticipated timing for the commencement of recruitment activities. The project team could not commence recruitment until late in 2016, in the lead up to the summer holiday period, which is a particularly challenging time to secure assistance with recruitment measures and interest from potential participants. To accommodate the stringent recruitment measures and the delay in the commencement of recruitment activities in earnest, the fieldwork period was required to be extended on two occasions in order to achieve the required sample of participants.

As detailed above, rigorous recruitment and ethical protocols were required and, in particular, strict screening protocols were established in order to obtain ethical clearance to proceed with this research. These additional measures, while aimed at further protecting children and young people from risk and harm, in some instances gave rise to distress among young people and their parents, as they were deemed unable to participate in the study when they otherwise would have qualified. Despite these challenges, the research team were able to achieve 61 interviews with children and young people in 47 families, enabling a robust and rigorous exploration of the research questions. The richness of the insights and experiences of these children and young people, their maturity and resilience, and the appreciation they expressed at having been heard will hopefully support the clearance of further research involving children and young people in the future:

I've gotten a lot out but I haven't gotten a lot, you know, like straight up, today I've gotten so much out that I've just wanted to get out for so long … it's one thing to tell people bits and pieces but to just whoosh it out, you know, and just like to really just like burn it off, just, it helps. (Zoe, F, 12-14 years)

I'm glad that I had this opportunity to … help out with future, like, law things. (Scarlett, F, 15+ years)

1.4 Structure of this report

In this chapter, the research aims and research design employed for the Children and Young People in Separated Families project have been summarised, together with an outline of relevant literature, provisions of the FLA and case law, providing context to the analyses that will be covered in the substantive chapters of the report.

Chapter 2 first provides an overview of the demographic profile of the participating families and their characteristics (including the nature of the familial relationships and the existence of safety concerns). The analysis in this chapter considers families' engagement with legal and non-legal services in the family law system (both by parents and children and young people) and the post-separation parenting and financial arrangements made by these families. Chapter 3 explores the perspectives and experiences of children and young people of their parents' separation, with a particular focus on the parenting arrangements made over time. Chapter 4 examines the children and young people's experiences of the family law system services (both legal and non-legal services) and Chapter 5 explores the supports that the participating children and young people indicated would assist them in dealing with their parents' separation. A summary of the key findings and a discussion of the conclusions arising from this research are provided in Chapter 6. The authors note that, in this report, more extensive use is made 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 were made available in their own words, thereby enabling a deeper understanding of how children and young people articulate their views and experiences in this context. and young people articulate their views and experiences in this context.

1 The term 'family law system services' incorporates both legal and non-legal services and includes: the Family Court of Australia, the Federal Circuit Court of Australia, the Family Court of Western Australia, lawyers (including Independent Children's Lawyers (ICLs)), family consultants, single experts, family dispute resolution (child-inclusive and child-focused), individual and family post-separation counselling, domestic and family violence services, children's contact services and the range of post-separation parenting programs.

2 Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth).

3 Explanatory Memorandum for Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth). Note, however, that Parkinson (2014) argues that the listing of the provision as an 'additional object' suggests that it has a more limited role than the objects in s 60B(1).

4 Prior to the 2006 FLA amendments, the equivalent section 68F(2)(a) referred to 'any wishes expressed by the child …'. The Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) indicated that this change from 'wishes' to 'views' was to capture a broader understanding of a child's 'perceptions and feelings', which may not necessarily relate to (but does not otherwise exclude) a wish as to which parent the child wants to live with or spend time with (see also Chisholm, 2009). The Explanatory Memorandum further noted that this change was consistent with Article 12 of the UNCRC and Chisholm observes that the purpose of the change from 'wishes' to 'views' was to encourage those in the family law system to consider children's experiences and how they feel about a situation. In Mestronov v Mestronov [2007] FamCA 1672, Bennett J referred to previous jurisprudence relating to the assessment of children's wishes, while noting that the concept of a child's views is broader as it refers to the child's thoughts and feelings. However, Chisholm acknowledges that the wording of the section, and the emphasis on maturity and the court's discretion as to the weight to be placed on the child's views, still suggest a narrow focus on the desired outcomes of a child even as the views may contribute to a more holistic determination of parenting arrangements and assessment of the best interests of a child (Chisholm, 2009). For more recent consideration of the distinction see, for example, Voight (2017).

5 The leading case was In the Matter of P v P (1995)19 Fam LR 1. See also In the Marriage of Bennett v Bennett (1991) 17 Fam LR 561; DS v DS (2003) 32 FamLR 352 and R v R: Children's Wishes (2000) 25 Fam LR 712 and Fogarty and Kay JJ in In the Marriage of Harrison v Woollard(1995) 18 Fam LR 788.

6 RCB as Litigation Guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest, one of the Judges of the Family Court of Australia and Others [2012] HCA 47; State Central Authority v Best (No. 2) [2012] FamCA 511; State Central Authority v Young [2012] FamCA 843; Knibbs v Knibbs [2009] FamCA 840; McKinnon v McKinnon [2005] FMCA Fam 516; T v S (2001) 28 Fam LR 342; and T v N (2003) 31 Fam LR 257. Note also National Legal Aid. (2013). Guidelines for Independent Children's Lawyers <www.nationallegalaid.org/assets/Family-Law/ICL-Guidelines-2013.pdf>.

7 See also section 164 of the Family Court Act 1997 (WA).

8 See also Sawyer v Sawyer [2015] FamCA 982. For a further discussion of the role of ICLs, policy context and practical considerations relevant to ICL, see Kaspiew et al., 2014.

9 The Guidelines for Independent Children's Lawyers (National Legal Aid, 2013) provide guidance for ICLs in performing their role. The guidelines state that the ICL should seek to provide the child/young person with an opportunity to express their views and that the ICL should ensure that the child is able to be advised about developments in the matter if they wish to receive this information. Legal aid commissions in Queensland and New South Wales have also formulated practice guidelines and standards for ICLs and National Legal Aid has developed a web resource specific to ICL practice and now conducts the training required to be undertaken prior to a lawyer's appointment to the ICL panel: Legal Aid Queensland, Best Practice Guidelines for Independent Children's Lawyers (ICLs) Working With People who Have Experienced Domestic Violence; Legal Aid NSW, Practice Standards for Independent Children's Lawyers in Family Law Matters.

10 Family consultants are psychologists and/or social workers and are defined in FLA s11B as being appointed by the Family Court of Australia (pursuant to s 38N), by the Federal Circuit Court (pursuant to the Federal Circuit Court of Australia Act 1999 (Cth)), by pursuant to the regulations (specifically Regulation 7 of the Family Law Regulations 1984 (Cth) or by a law of a state, and their primary functions are set out in FLA s11A. Their primary functions include the provision of services in relation to proceedings under the Act, including assisting and advising people involved in the proceedings, helping the parties to resolve disputes, assisting and advising the court, and giving evidence and reporting to the court under s 55A and s 62G. Practitioners who provide services under Regulation 7 are based in private practice, are not employed by the court and are engaged when an internal family consultant is not available.

11 See further, for example, O'Neill, Bussey, Lennings, & Seidler (2018) and House of Representatives Standing Committee on Social Policy and Legal Affairs (2017).

12 Explanatory Statement, Family Law Amendment Rules 2010 (No. 1). It is noted that children under 18 years of age are not permitted to swear affidavits, be called as witnesses or be present during family law proceedings unless the court makes a relevant order: FLA s 100B(1),(2).

13 See, for example, Fernando (2012).

14 See e.g. Bagshaw et al., 2010; Bell, 2017; Birnbaum, 2017; Birnbaum & Bala, 2009, 2017; Campo, Fehlberg, Millward, & Carson, 2012; Fitzgerald & Graham, 2011; Graham & Fitzgerald, 2006, 2010; Kaspiew et al., 2014; Lodge & Alexander, 2010; McIntosh, 2009; McIntosh, Wells, Smyth & Long, 2008; Neale, 2002; Parkinson & Cashmore, 2008; Qu & Weston, 2015; Quigley & Cyr, 2017; Sheehan & Carson, 2006 Smart, Neale & Wade, 2001. See also: Cashmore, 2011; Cashmore & Parkinson, 2016; Parkinson, Cashmore, & Single, 2005; Sheehan et al., 2005.

15 See e.g. Kaspiew et al., 2014; Thomas, 2002; Birnbaum, Bala, & Cyr, 2011; Birnbaum & Bala, 2009; Taylor, 2006; Smith, Taylor, & Tapp, 2003 and Taylor, Gallop, & Smith, 2000)

16 See further <www.pathwaysnetworkssa.com.au/ypflag>.

17 While the initial formulation of grounded theory by Barney Glaser and Anselm Strauss centred on the positivist notion of discovery, the more recent constructivist approach to grounded theory has shifted the focus towards the active generation of theory by the researcher and research subject: Charmaz, 2000; Glaser, 1994; Lincoln & Guba, 2000.

18 If a child/young person registered their interest in participating directly, a member of the research team would ask the young person for the contact details of a parent/guardian in order to obtain parental consent and confirm eligibility related to family law matters before proceeding further with the young person.

19 Families were initially eligible to be interviewed where their family law matters had been finalised during the period from 1 January 2015 to 31 December 2017. The eligibility period was subsequently extended to the period between 1 January 2013 and 31 December 2017, in response to recruitment requirements.

20 It is important to note that we did not require the participating parent to have parental responsibility, only that informed consent for the young person to participate be provided by a parent/guardian with parental responsibility. Among all registrations, 16 families (8 mothers and 8 fathers) did not participate because the parent who registered their interest did not have parental responsibility and the other parent did not consent to the child/young person's participation.