Citizen child: Australian law and children's rights

Historical publication – December 1996

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4. Children's rights and family law

by John Faulks

'Suffer the children .. .'
Mark 10:14
Luke 18:16

In 1962, in the Court of Appeal in the United Kingdom, the then Master of the Rolls Lord Denning was able to say:

'If the mother in this case were to be entitled to the children, it would follow that every guilty mother (who was otherwise a good mother) would always be entitled to them: for no stronger case for the father could be found. He has a good home for the children. He is ready to forgive his wife and have her back. All that he wishes for is her return. It is a matter of simple justice between them that he should have the care and control. Whilst the welfare of the children is the first and paramount consideration the claims of justice cannot be overlooked.' (Re L (Infants) [1962] 3 All ER 1,4)

In the period up to the introduction of the Commonwealth Family Law Act in 1975, many of the statements about how to determine questions of family law related to children were couched in terms which were designed to suggest that their interests were paramount. However, the way in which these rights were examined and the setting in which they were examined (that is, by almost invariably male, middle-aged to elderly judges from middle and upper class backgrounds and intact families) led to a broader consideration of parental rights rather than any acknowledgment of children's rights. In fact, except for the abstract expression that a child's welfare should be the paramount, or the 'first and paramount' consideration, most jurists, lawyers and indeed parents, would have been somewhat startled 30 years ago to discover that the children who were subject of the proceedings had rights.

Just how far the emphasis has changed is illustrated by the wording of the Family Law Reform Bill 1994, which will become law in 1996. The amending act refers to the United Nations Convention on the Rights of the Child (the Convention), which sets out specifically the rights a child has in relation to its parents and, by inference, in relation to family law (Section 31 of the Bill numbered at this stage Section 60B of the Act). The aims of Part VII of the amended Act are: ' ... to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.'

This chapter examines how this change has come about in judicial reasoning to the point where the proposed new formulation of Part VII of the Family Law Act 1975 is not regarded as highly controversial and has received bipartisan support.

In the march down the path towards a greater recognition of children's rights, the Family Court of Australia has reached a point where it has prescribed circumstances in which a child or children should be separately represented. However, is such a representative a conduit for the child's opinions? Is such a representative a separate and individual expert who will provide another opinion to the Court? Or is such a representative simply a friend of the Court who is there to correct imbalances generated by the adversary system itself? This issue is also examined in this chapter and suggestions are made about the best use of the facilities available to us to enhance and develop the rights of children in a system of justice conceived and in the process of development some hundreds of years ago.

To illustrate the transition set out above, and also to examine the question of children's rights and the rights of those associated with them in family law, the concepts of guardianship, custody and access as they have developed in Australia, particularly since the introduction of the Family Law Act, are considered. The chapter also examines the growing welfare jurisdiction of the Family Court with particular reference to the Court's involvement in the authorisation of medical procedures for children. At the outset however, there is a factor which needs to be considered to set a context.

An end to litigation?

Court proceedings about children usually take the form of a massive decision-making intervention at one particular point designed to determine the whole of the child's future, although in some cases several interventions may be made as the parties face new crises and are unable to resolve them appropriately. In this context the child and its circumstances as they are perceived, or found to be by the Court, are subjected to a careful examination and, from that comparatively narrow base, decisions are made about the future that will significantly affect the continuum of the child's life and welfare.

Social scientists argue that it is inappropriate to have such a once-only, massive intervention and that interventions should be less massive and possibly more available to resolve occasional conflict. In part, such an approach is recognised in the amendments to the Family Law Act (see Sections 61C and 610). The amendments indicate that the Court will intervene only when it is necessary to do so, and then to the minimum extent required. This is a substantial departure from the previous principle that it was necessary for one parent to be nominated to have a 'casting vote' in relation to a child's or children's welfare.

Prior to these amendments, the Family Court, following the prescriptions of the Family Law Act, looked to two principles to resolve disputes. The first of these was that litigation should be minimised and that the Court should: ' ... make the order that in the opinion of the Court, is least likely to lead to the institution of further proceedings with respect to the custody or guardianship of the child .. .' (Section 64 (1) (ba) Family Law Act 1975).

It has also taken the view that pragmatism dictates, as Justice Emery said in the case of Diason and Diason (1976) FLC 9[90026, 75,119 that: ' ... where the parties have separated, particularly because of serious incompatibility, then it will be difficult for them, as a committee of two, to reach a majority decision.'

In line with this decision, the Court has therefore taken the view that the appropriate way of resolving disputes is to give the future power of resolution to one of the parents over the other.

The effect of language on conflict

The second matter that must be borne in mind in a consideration of these issues is the question of language. Lawyers are concerned about, and pride themselves on, their ability to resolve disputes but consider that this is possible only in a context of justice. Much of their language is directed to questions relating to justice and to ensuring that all available information is elicited to permit the judge/arbitrator to make a determination about where rights (or wrongs) may lie.

Social scientists (in which category are included counsellors, psychologists, psychiatrists and carers of different sorts), on the other hand, are not so concerned with the rights and wrongs of a conflict, but rather with the people in conflict and with providing a process which will enable that conflict and other conflicts to be resolved. The language of social scientists has more to do with feelings and processes than with rights, resolutions, and the concept of justice.

This incompatibility of language has led to misunderstandings when the two disciplines work together to find a way of dealing with a crisis in the life of a child and its parents, as is often the case in the context of Family Court proceedings. Having discussed the factors which should be considered in a family law context, the following discussion will move on to the major issues raised in this chapter.

Custody

In any marriage breakdown involving young children, the children become the focus of parental affection and attention in an intense and perhaps not previously observed way. In a perfect world, no doubt, parents of children, though separating from one another, would do their best to ensure that the children receive unqualified, continuing affection. Every opportunity to enhance parent-child relationships and contact would be taken, with parents setting aside their differences and uniting - at least on matters relating to the children - for the children's common good. The fact that this does not happen on a regular basis is of no surprise to those who work and care in the area of family law. This is not a matter for the attribution of blame, but rather a recognition of human nature and the deeply wounding effects of a failed marriage.

The compounding of conflict between parents with issues relating to their care of children has, for a very long time, led to battles about custody. One of the earliest recorded examples of a judgment made about custody is that of Solomon (Kings 1:16-30). Solomon's methods for resolving the dispute were, by modern standards, crude and barbaric. He, in his wisdom, recognised that a mother's love for her child would prevail over any personal gain or selfishness to preserve the safety of that child. Nowadays, it is unlikely that many would agree that the end justified the means, and it could not be suggested under any circumstances that what the Americans call 'due process' occurred.

In the example of Solomon, both women wanted custody, but only one was prepared to put the welfare of the child first. The complex and multi-layered issues involved in any custody dispute, makes this area of family law one of the most difficult. The proposed amendments to the Family Law Act tackle some of the complexities by shifting the emphasis in language away from concepts of ownership towards the rights of children. It is the beginning of a recognition of the difficulties generated by the language used by lawyers and others in this area.

The language of custody

At common law, the term 'guardianship' was generally used to signify the totality of rights and powers which an adult had over a child. In other words it included the rights and powers which are generally associated with 'custody'. Guardianship was commonly the term applied to the appointment by Will of someone to operate in place of a parent upon the death of that parent. Under the Matrimonial Causes Act 1958 (Cwlth), and in fact under the Family Law Act 1975 until amended in 1983, the term most commonly used to describe the bundle of rights associated with determining major matters relating to a child's welfare was 'custody'. It was possible for one person to have custody while another had 'care and control' of the child.

Initially, it would appear that custody orders made by courts were based, at least in part, on the proposition that an 'innocent' party should not be deprived of the custody of his or her child. The courts in England found this division of responsibility to be 'entirely realistic'. In Wakeham v. Wakeham [1954] 1 All ER 434, 436, Lord Justice Denning (as he then was) said:

'By giving the father the custody, it recognises that he, the innocent party is at least entitled to a voice in the bringing up of the child or children, and also to the consideration of the Court when any question arises as to what is to be done for the child. The paramount, but not the only consideration when the Court comes to consider the matter is, of course, the welfare of the child, but the father's views are also entitled to consideration, that is why the order for custody should be given to him, although for solely practical reasons, the mother may have the care and control.'

This curious dichotomy, born of a different age and arising from proceedings in the court centred on fault, was later criticised on the basis that there should not be responsibility without power. Justice Barber, in deciding against a divided order in Travincek v. Travincek (1966) 7 FLR 440, 444, said:

'Practical experience in the matrimonial jurisdiction leads to the conclusion that any separation of the responsibility of the child's upbringing and the authority to control it would in most cases end unsatisfactorily and in some cases disastrously. The ultimate test to be applied must always be the welfare of the child and the custody of the child is not to be committed or refused to one party or the other as a reward for virtue or penalty for matrimonial guilt. It is also necessary to resist the temptation to console the successful petitioner by an order for legal custody where the circumstances are such as to require the actual care and control to remain with the respondent.'

Justice Barber went on to say: ' ... it seems to me essential that the party with the actual responsibility for the child's care should also have the legal right and duty to control and direct its mode of life, education and general upbringing, subject to a reasonable consultation with the other spouse, and ultimately, if necessary, to the control of the court.'

The Full Court of the Family Court of Australia in the decision of Chapman and Palmer (1978) FLC 9[90-510 referred to comments by Justice Barblett in Money and Money (1977) FLC 9[90-284, that it is important that one of the parents should have the power of decision to avoid having to ask the Court to arbitrate on every matter. Nevertheless, the Full Court said that it was wrong to approach the problem from the point that a joint (shared) custody order should be made 'only in the most exceptional circumstances' (p.77,672). In that decision he awarded joint custody.

A more recent example of the Family Court's present pragmatic approach to the division of the elements of custody and guardianship is in the matter of Padgen and Padgen (1991) FLC 9[92-231 where Justice Rowlands declined to make an order for joint custody notwithstanding the parents' geographical proximity, their compatible parenting values, the adaptability of the child and the ability of both parents to supervise him, because he found that: ' ... unhappily there is some rift in mutual trust, co-operation and good communications at present, as these very proceedings demonstrate' (p.78,585).

Notwithstanding that purists might have different views about the possibility of splitting elements of child care (be they called 'guardianship', 'custody' or 'care and control'), both under the Matrimonial Causes Act 1958 and the Family Law Act 1975, most parents have had little difficulty in knowing what they wanted. They were clear that they wanted custody of their children.

However, this was to change with the Watson Report (Family Law Council 1982) and the implementation of that Report in the Family Law Amendment Act 1983 which renumbered Section 60A to Section 63E and in that section renamed the common law notion of care and control as 'custody', and called the remainder of the common law notion of custody and all of the common law notion of guardianship, 'guardianship'. Section 64E (2) which is the law at present (until it is changed by the amending legislation in 1996) states that: 'A person who has or is granted custody of a child under this Act' has '(a) the right to the daily care and control of the child; and (b) the right and responsibility to make decisions concerning the daily care and control of the child.'

By way of contrast, Section 63E (1) says in relation to guardianship: 'A person who is the guardian of a child under this Act has responsibility for the long-term welfare of the child and has, in relation to that child, all the powers, rights and duties that are apart from this Act, vested by law or custom in the guardian of a child' other than '(a) the right to have the daily care and control of the child; and (b) the right and responsibility to make decisions concerning the daily care and control of the child.'

While, in general, not much turns on the distinction, it is interesting to note that under Section 63F (1): 'Each of the parents of a child who has not attained 18 years-of-age is a guardian of the child, and the parents have joint custody of the child.'

It is to be noted that the Act does not confer joint guardianship which would appear to require cooperation on day-to-day matters (joint custody), but entitles each parent to independently exercise his or her right as guardian. In practice, most people seem to treat the statutory appointment of each parent as guardian as producing a joint guardianship situation. (Compare, however, the warning given by the Full Court of the Family Court of Australia in H v. W (1995) FLC 192-598, about an assumption of joint guardianship.)

While the concept of 'access' has not changed, it should be noted that in many cases, particularly where access continues beyond a few hours, it is probably more apposite (under existing legislation) to describe the time that the child spends with that parent as 'custody' to conform to the definition of that term. One effect of the 1983 amendments was to generate some confusion in the minds of litigants as to what in fact they wanted. Some parents now settle for 'custody' who would never have settled for 'care and control' (which for all practical purposes was the same thing) prior to 1983.

In any event, these subtle differences become a thing of the past with the new amendments to the Family Law Act. Among other things, the 1995 amendments do away with the proprietorial terminology inherent in 'guardianship', 'custody', 'care and control' and 'access'. While these are terms which have become familiar over the years, they connote ideas of ownership and of rights of parents to children rather than of continuing relationships between children and parents. The term 'access' itself would seem more appropriate to describe entering onto property rather than a means of establishing a proper relationship between parent and child.

Part of the thinking about custody and access (it is proposed to use those terms hereafter without making the fine distinctions inherent in the legislative changes in 1983) is brought about by the nature of the proceedings in which claims for custody or access were brought. Under the Matrimonial Causes Act children could not institute such proceedings themselves, whatever their age, and custody applications could only normally be brought as part of the petition for divorce. This inevitably associated questions of custody with the grounds for divorce, and on occasions no doubt gave rise to concepts of awarding the children to innocent parties. As interlocutory (provisional) applications for custody could not be commenced until proceedings for divorce had been instituted, hence, if no grounds for divorce (hence fault) existed, no application could be made. Interim applications for custody were instituted because of delays in final hearings for custody which might not be heard for some time after the filing of the initial application.

While the potential for confusion (fault/no-fault) existed in the transition from the Matrimonial Causes Act to the Family Law Act, the principles relating to interim custody have in fact been kept clear. In essence, the principles set out in Cilento and Cilento (1980) FLC 91"90-847 have been maintained and thus, unless there is a serious risk to the physical or moral wellbeing of the child, the child will not be taken from the parent with whom it lives pending the hearing. This, of course, is always subject to the overriding consideration of the welfare of the child. The decision of Holland v. Cobcroft (1980) FLC 91"90-865 applies this principle equally to an ex-nuptial child.

Welfare of the child as paramount consideration

Section 64 of the Family Law Act 1975, amended in 1983 to codify the matters the Court must take into account, stipulated that the first matter, indeed the paramount matter, that the Court must take into account was the 'welfare of the child'.

The wording of Section 64 (1) (a) has a long history mirroring as it does Section 85 of the Matrimonial Causes Act 1958. That section in turn, it would appear, had been inserted deliberately with knowledge of High Court decisions such as Storie v. Storie (1945) 80 CLR 597 and Lovell v. Lovell (1950) 81 CLR 513 (as was suggested by Toose, Watson and Benjafield 1968, para. 729).

The words 'first and paramount' had had previous usage both in England and Australia, but a number of decisions held that no change had occurred because of the deletion of the words 'first and'.

In Priest v. Priest (1963) 9 FLR 384, ChiefJustice Herring remarked that: ' ... the fact that the interests of the child are to be the paramount consideration does not mean that his welfare is to be the only consideration. The very use of the word "paramount" shows that other considerations are not excluded. They are only subordinated.'

This gives rise to the interesting speculation as to how the other matters to be taken into account were included in Section 64 by the amendments in 1983, 1987 and 1991. Logic suggests that the other matters set out in Section 64 are but different aspects of what might be regarded as 'the welfare of the child'.

The words 'the welfare of the child' are different from the words used in a similar context in the Convention on the Rights of the Child, where the phrase used is 'best interests of the child'. To emphasise conformity with the Convention, the Family Law Council suggested to the Commonwealth Government that this phrase should now replace 'welfare of the child' in the Family Law Act.

It is interesting to note in Section 85 of the Matrimonial Causes Act proceedings with respect to the custody, guardianship, welfare, advancement or education of the children of a marriage, where '(a) the court shall regard the interests of the children as the paramount consideration ... '. While there was some dalliance with the symmetry of contrasting the child's interests with the parents' interests (and hence moving to the point where the child's interests were to be regarded as paramount), there is consensus that the word 'welfare' has the same practical meaning in Section 64 as the term 'interests' did under the Matrimonial Causes Act 1958. For this reason, a further change in the Family Law Reform Bill 1994 should not suggest that the test of the paramountcy of the child's interests be watered down.

Children should be heard, not just seen

Section 64 (1) (b) of the Family Law Act 1975 directs the Court to take account of 'any wish expressed by the child in relation to the custody or guardianship of, or access to, the child, or in relation to any other matter relevant to the proceedings'. The Court is directed to give those wishes such weight as the Court 'considers appropriate in the circumstances of the case'. How are these wishes to be ascertained? On the judge's knee, as was sometimes the case under the Matrimonial Causes Act; in counsellor reports; by separate representatives? One of the arguments put forward for the change apart from conformity with the Convention is that the Court has a separate jurisdiction relating to the welfare of the child. This has become known as the welfare jurisdiction of the Court and is dealt with later.

Under the Matrimonial Causes Act 1958 it was common for a judge to interview a child in Chambers. This practice has been decried in more recent times and replaced (Section 62A FLA) with the obtaining of a report from a Family Court Counsellor, who interviews parents and other people as well as the children with a view to obtaining a balanced and hopefully accurate assessment of the child's wishes. However, in general terms the counsellor is available to be tested under cross-examination as to what occurred and why conclusions were reached, in a way a judge could never be under the old system. The counsellor is faced with precisely the same dilemma as the judge in respect of what to do about the wishes of children who want confidentiality, particularly in relation to their parents. If the judge or counsellor does not reveal these wishes but makes a decision 'consistent' with them, how can this decision-making process be tested?

'Once only' interventions

It is interesting to note that while Section 64 (1) (ba) of the Family Law Act 1975 obliges the Court to make such decision as is least likely to lead to the institution of further proceedings, this 'once only' intervention proposition may in fact operate to the disadvantage of the child. While it has always been clear that a new application for custody could be made if circumstances changed, it was equally clear that the Court discouraged serial applications because continuing litigation, apart from being financially disastrous for the parties, was unlikely to assist the welfare of the children. Nevertheless, the current emphasis in the Act on a once and for all determination is a curious way of dealing with a continuing and evolving human relationship.

The 1995 amendments to the Family Law Act would require the Court to consider whether, in all the circumstances, to make no order is in fact appropriate. This to some extent de-emphasises the 'once only' intervention proposition and accepts, at least in theory, that the evolving relationship may require adjustment from time to time regarding specific issues upon which the parents may quite legitimately differ.

The present emphasis on determining who is to have the casting vote puts a premium on collecting all potential and present areas of conflict and making an attempt to resolve all those conflicts by deciding which parent, according to what is known, is more likely to do a good job of dealing with these matters. If it is accepted that there will be conflict from time to time and that both parents continue to have responsibility for the children and duties towards them, the issue to be determined is not who is to prevail but rather how the particular conflict is to be resolved.

For example, one area of conflict has been the difficulty some parents have in determining what is to be the appropriate education for their children. We may well ask whether this is an issue relating to guardianship or custody under the present law, and whether, in fact, this is not principally a matter of money rather than a matter of parental duty or right. It is common in the resolution of this problem to see it as being an aspect of the question of custody/guardianship and that, accordingly, the issue will be resolved by determining who will have the custody/guardianship of the child.

If neither party felt vulnerable about the broader issues of custody it may be that a simple procedure could be applied to determine that specific issue {called under the 1995 amendments a 'special purpose order'} without the expense or acrimony presently associated with comprehensive custody proceedings. It should be noted here that the child is not a party in the Family Court proceedings; it is the parents who are the parties.

Section 64 checklist

The remaining matters set out in Section 64 (1) (bb) appear to be only specific examples of factors which should be considered in determining what is for the welfare of the child. To some extent they represent a checklist of things that need to be put before the Court in order. for it to determine who is the more appropriate person with whom the child is to live predominantly. They might reasonably be summarised as follows:

(1) the nature of the relationship of the child with each parent;
(2) the effect on the child of any separation;
(3) the desirability of any change in the existing arrangements;
(4) the attitude to the child and responsibilities and duties of parenting demonstrated by each parent;
(5) the capacity of each parent to provide adequately for the needs of the child including emotional and intellectual needs;
(6) the need to protect a child from abuse;
(7) any other fact or circumstance that in the opinion of the Court the welfare of the child requires to be taken into account.

The importance of Section 64 (1) (bb) is that it provides an agenda for custody proceedings, and hopefully directs the minds of the parents and their representatives to the issues which they must agree are relevant and important in determining questions of welfare.

It is useful to note that in determining what is in a child's best interests ('welfare') the Family Law Reform Bill 1994 gives the Court a list of matters (Section 68F (2)) which, expressed in more modem language, are for all practical purposes identical with the list set out in Section 64 and summarised above. It is to be noted, however, in keeping with more recent thinking about the effects of violence on children (even if that violence is not directed expressly against them) that the list should be taken into account with the following additional headings: 'Any family violence involving the child or a member of the child's family'; and 'Any family violence order that applies to the child or a member of the child's family'.

Access

In Australia, the term for the time a child spends with a non-custodial parent is 'access'. It contrasts with the American term 'visitation' and is replaced under the Reform Bill with the word 'contact'. The language is important because 'access' carries with it some connotation of rights of entry to real estate or of ownership, rather than of the time in which two people might continue and develop an intimate relationship. To the extent that a change in terminology may effect a change in the way in which people look at the issue, the term 'contact' is desirable.

The term 'access' is used here because it is that. used in the cases about to be considered. Access illustrates the development of the concept of children's rights out of parental rights. The older view about access is demonstrated by the following comment by Lord Justice Wilmer in S v. Sand P [1962] 2 All ER 1,3-4, where he said that: ' ... access is no more than the basic right of any parent' and that 'the Court should not take the step of completely depriving a parent of access unless it is shown that such parent is not a fit and proper person to be brought into contact with the children at all' (emphasis added).

Perhaps one of the more humane statements of the principles relating to access was made by Justice Nygh in Cotton and Cotton (1983) FLC 91'91-330, where he said:

' ... it is desirable for a child to maintain a meaningful relationship with each of his or her parents. That is obviously desirable when the parents are living together in a united household, but is becomes even more desirable when the parents are separated. It is a trite observation that the parties to a marriage may divorce one another, but they can never divorce themselves from their children. In that sense, the parties remain tied to one another, at least, until those children can stand on their own two feet, which may not necessarily occur at 18 years-of-age or 21 years-of-age.

However, that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for cont~ct's sake. If there is a situation where contact with a parent is unbalanced, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact.'

The leading authority, the Full Court decision in Brown and Pedersen (1992) FLC 9[92-271, p.79,Oll referred approvingly to those remarks and added 'proceedings for custody or access are not to be viewed as adversary proceedings ... but as an investigation of what order will best promote the welfare of the child'.

With respect to their Honours in Brown and Pedersen, most participants in custody cases will be somewhat bemused to learn that what they are engaged in should not be viewed as adversary proceedings. While no-one would quibble with the judges' sentiments, it is somewhat unrealistic to expect that people who are engaged in the most difficult and emotional litigation known would do so in a spirit only of promoting the welfare of the child. It is in part to remove the stigma associated with the loss of the right to control that the amendments to Part VII of the Family Law Act have been introduced.

It has been suggested previously in this chapter that in some cases the difference between access and custody is more apparent than real. Indeed, some judges quite properly talk about the custody of the child under pre-1995 legislation as being with one parent for some part of the time and with the other for the rest of the time. This would appear to be a logical and sensible interpretation of the definition of custody set out in Section 63E (2).

Whether it be called custody or access, the time a child spends with the non-custodial parent is often bitterly controversial. The reasons relating to this controversy vary with the characters and behaviour of the parties involved, but a frequently recurring theme is the antipathy the custodial parent bears towards the non-custodial parent's new partner, and the desire (and frequently requirement) that the child not be brought into contact with 'that person'. Similarly, while the courts have been at pains over the years to point out that there is no connection between matters of maintenance and custody, there is no doubt that in the minds of many parents the 'no pay, no play' mentality rules, just as in reverse the 'I have paid therefore 1 can play' mentality is evident in others.

Another matter that stands out as causing more problems than any other is a suspicion on the part of the custodial parent that the noncustodial parent has engaged, and will engage, in sexual conduct with the child during periods of access. The High Court was called upon to deal with this issue in the decisions of B and B (1988) FLC 191-978 and M and M (1988) FLC 191-979. The High Court unanimously upheld the decisions of the Full Court of the Family Court (which were majority decisions) and held that the ultimate and paramount issue to be decided in custody or access proceedings was whether the making of the order sought was in the interests of the child's welfare. The High Court introduced a test about sexual abuse: ' ... that a Court should not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse' (p.77,081, emphasis added).

Just how this differs from the dissenting view expressed by Chief Justice Nicholson in the Full Court of the Family Court, that: 'There must be a real or substantial risk of abuse occurring as a matter of practical reality' (M and M (Full Court of the Family Court of Australia) (1988) FLC 191-958, p.76,927) is sometimes a little difficult to follow, however.

In practice, judges of the Family Court tend to err (as was foreshadowed by the High Court) on the side of safety, and to prevent access in circumstances where there is any plausible basis for believing that sexual abuse may occur. In other words, if a child is acknowledged to be safe with one parent and there is a dispute about its safety with the other, then the Court tends to suspend access, at least temporarily.

This difficult area was the subject of a Practice Direction from the Court (No.1 of 1991) which is designed to ensure that as soon as an allegation of sexual abuse is raised, special treatment is paid to the case to ensure that the proper issues relating to the welfare of the child can be resolved as quickly as possible.

A further area which from time to time has been the cause of great consternation is that of the non-custodial parent's sexual preferences. But the Court has steadfastly refused to prohibit all access merely because a non-custodial parent may be homosexual or living in a homosexual relationship.

Subsidiary matters relating to access

While objections by one parent to the other about how access might be carried out are almost as limitless as the variations to human personalities, a common complaint is that the children on access are either bored because the non-custodial parent does little or nothing with them or, at the other end of the spectrum, given far more in terms of material goods, outings, fast food and so forth than could possibly be afforded by, for example, a mother struggling to support them on insufficient income.

These sorts of complaints, together with the even more frequently voiced complaint that the children have told the custodial parent they do not want to go on access, are usually the catalyst for variation of access applications to the Court. It would be nice to think that there may be provision in the Court to deal with minor matters expeditiously and without excessive expense. Up until now this has not been possible and access variation has occurred only in the same way as any other application before the Court, with consequent expense and difficulty. This may mean that many parents suffer resentment about what is occurring during access without having any effective vehicle for disposing of the issue or resolving the conflict. This process reflects again the attitude inherent in the legislation that a 'once only' determination must be made that is expected (subject to unusual events) to last for the duration of parenthood.

Intractable access problems

For a small group of parents there is nothing a court or anyone else seems to be able to do to prevent almost endless fights about access. In every Registry in the Family Court in Australia, files can be identified which would fit into a category of 'intractable access problems'. These matters are identified by the number of occasions on which they are back before the Court, frequently with no satisfactory resolution, or the number of times the parties will attend for counselling - again perhaps, with little resolution.

Perhaps such parties can be persuaded to use a different system of resolving their disputes. They may be persuaded to use arbitration, mediation or some other form of more appropriate dispute resolution. But ultimately, there are those who will fight in a court come what may, be it about property, custody, access or something else. If such people can be identified early at least they can be fast-tracked to a judicial solution (not as a reward for perversity but in recognition that no other solution will resolve the matter for them). As the report of the Australian Law Reform Commission (1995) on this matter, For the Sake of the Kids, identifies, there are no simple solutions to difficult access problems. Resolvers of conflict need an armoury of solutions and the dedication and the will to find the appropriate solution to each problem.

Separate representation for children?

The Family Court of Australia has the power (under Section 65 of the Family Law Act) to order that a child who is the subject of any proceeding before it be separately represented. This has been usually organised by Legal Aid Commissions which, while not obliged to do so, almost invariably fund such a representative.

The Family Law Council (Commonwealth of Australia 1989) made certain recommendations about separate representatives for children, which were adopted and adapted by the Family Court in Re K (1994) FLC 192-461. In particular, the Court set out extensive (but not exhaustive) criteria for matters requiring the child to be represented separately from its parents (see pp.80,773-80,776). The criteria are set out at the end of this section and reflect the concern that the child's voice be heard in disputes over his or her residence, care and nurture.

Prior to Re K, in the decision of Bennett and Bennett (1991) FLC 192-191, the Family Court had laid down certain guidelines relating to the operations and activities of a child's separate representative. In that case the Court had suggested that the role of the separate representative was analogous to that of counsel assisting a Royal Commission; that is, to be impartial and to make submissions and suggestions to the Court about what the separate representative believes is in the best interests of the child (p.78,259).

The Full Court of the Family Court in Re K (p.80,776) also examined the provisions of the Convention on the Rights of the Child and the requirement therein that apparently all children should be represented. The Convention is not yet, as a whole, part of the domestic law of Australia, but the Court's reference to the Convention illustrates the concern for finding ways to let the voices of children be heard. The recent High Court decision of Minister for Immigration and Ethnic Affairs v. Ah Hin Teoh (April 1995) 128 ALR 353 held with specific reference to this Convention, that ratification by Australia of an international convention is a positive statement that the executive government and its agencies will act in accordance with it. The Commonwealth Government is considering a legislative response to the Teoh decision in the proposed Administrative Decisions (Effect of International Instruments) Bill.

The Chief Justice of the Family Court has indicated, in recent times, that he sees the possibility that the child's representative may not only be a lawyer but perhaps a small team of people from different disciplines; for example, a counsellor or a psychologist. This concept is part of the considerations of the Family Law Council in its 1995 report.

The concept of the child's right to be heard in the proceedings through his or her own representative is to some extent a development of the Family Law Act, and has become an increasingly urgent issue as this century draws to an end. The adversary system necessarily means that those representing the mother and the father may on occasions, for the benefit of their respective clients, not want to put before the Court some evidence which may be relevant to the welfare of the child. It seems logical that, at the very least, a separate representative should be in a position to ensure that all relevant information is put before the Court, irrespective of whether it is to the advantage of one parent or the other.

Originally, the separate representative was seen as an amicus curiae (friend of the court) whose function was principally to assist the Court in some general way, and not as someone with direct connections with the child. This concept has changed, and while it is clear that the child's representative does not appear merely to express the wishes of the child or to follow the child's instructions, there is now a clear understanding that a child's representative should, at least to some extent, interact with the child - particularly a child of more mature years.

Re K and the new concepts of child representation have very serious implications for legal aid funding. In Re K the Full Court rejected the proposition that, as in New Zealand (and consistent with the Convention on the Rights of the Child), a separate representative should be appointed in all cases (p.SO, 773). It went on to say that: ' ... on reflection we think that it may be desirable for statutory guidelines to be provided and, in their absence, we think it appropriate we should endeavour to give some assistance and guidance to judges, judicial registrars and registrars as to when such an appointment should be made.'

The Court proposed that the guidelines ' ... are simply guidelines; they are not rigid rules of law and it does not necessarily follow that a departure from them will necessarily vitiate a judgment although judges, judicial registrars and registrars should, we think, give sufficient reasons for departing when they consider a departure is appropriate.' The Court continued: '... we consider that the broad general rule is that the court will make such appointment when it considers that the child's interests require independent representation.'

The guidelines set out in Re K can be summarised as follows. Appointments should normally be made in the following circumstances:

  • (1) cases which involve allegations of child abuse, whether physical, sexual or psychological;
  • (2) cases where there is an apparently intractable conflict between the parents;
  • (3) cases where the child is apparently alienated from one or both parents;
  • (4) cases where there are real issues of cultural or religious difference affecting the child;
  • (5) where the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge upon the child's welfare; Children's Rights and Family Law 75
  • (6) where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child's welfare;
  • (7) where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the children;
  • (8) any case in which, on the material filed by parents, neither seems a suitable custodian;
  • (9) any case in which a child of mature years is expressing strong views and the giving of effect to which would involve changing a long-standing custodial arrangement or a complete denial of access to one parent;
  • (10) where one of the parties proposes that the child be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict, or for all practical purposes exclude, the other party from the possibility of access to the child;
  • ( 11) cases where it is proposed to separate siblings;
  • (12) custody cases where none of the parties is legally represented;
  • (13) applications in the Court's welfare jurisdiction relating in particular to the medical treatment of children where the child's interests are not adequately represented by one of the parties.

Should we keep the children out of it?

The full implications of Re K will take some time to be known, but the practical effect of the decision is that in every custody case, at least at the directions hearing stage, consideration will be given by the Court as to whether a separate representative should be appointed.

Parties, counsellors, lawyers and judges are tentatively considering how children should be involved in these proceedings. In most cases, only the very smallest of children would not know that there were disputes about them before the Court. The most frequently expressed view of children to counsellors and others is that they would prefer both their parents to be together and with them. Equally, children, as the unfortunate meat in the parental sandwich, are in some cases obliged to say things to each parent which children believe parents want to hear. This leads to conflict where both parents purport to carry out what they see as the wishes of the children.

It is widely thought that it is not appropriate for children to be sitting in a court room hearing the allegations and counter-allegations made by their parents in custody cases: While it may be true that such allegations ought not be made in custody proceedings, it is difficult to imagine how - given human nature and the emotional circumstances surrounding a custody case - bitterness, anger and resentment will not produce allegations. Perhaps a situation where a trusted person exists in whom the child can confide and who, in turn, has access to appropriate legal assistance and counsel, can at least provide a starting point.

Whatever may be said about what is not the right way to involve children, there can be little doubt that there is growing recognition that it is important for children to be involved. While they should not feel or be made to feel that it is their responsibility to resolve the conflict, children should be made aware that they are the focus of such conflict and have an important role to play in determining the outcome. It is their best interests which are at stake.

The welfare jurisdiction of the Family Court of Australia

It will have been noted that one of the circumstances in which the appointment of a child's representative is considered appropriate, is where the Court is exercising what has become known as its' 'welfare jurisdiction'. The present Section 64 (1) gives the Court power to deal with 'custody, guardianship or welfare of, or access to a child' (emphasis added). There seems little doubt that the inclusion of the words 'or welfare of' give the Court a much wider jurisdiction than matters relating directly to custody or guardianship.

Originally it was thought that the Court's power in relation to children derived from the marriage power accorded by Section 51(xxi) of the Constitution, with further support derived from the divorce power it accorded (Section 51 (xxii)). The precise ambit of the welfare jurisdiction of the Court is examined in an excellent article by John Seymour (1992). The article outlines in precise detail the nuances and judicial and legislative glosses which have contributed towards the development of this jurisdiction of the Family Court of Australia. While it is a fascinating exercise, it is not the purpose of this chapter to engage in any significant dispute with Or Seymour, or (seriously) to question the breadth of this jurisdiction of the Court. It is enough to say that as a result of judicial interpretation, the reference of powers by the States and Territories to the Commonwealth in relation in ex-nuptial children and the cross-vesting jurisdiction of the Family Court (which has brought into play the jurisdiction of the State and Territory Supreme Courts exercising their parens patriae jurisdiction), the Family Court has the beginnings of a substantial development of its jurisdiction.

There are serious doubts (Seymour 1992) about how far the welfare jurisdiction of the Court extends to ex-nuptial children. It is notable that the references of power of the Australian States and Territories have expressly excluded the word 'welfare'. There is also no doubt that they have jealously guarded their own child welfare legislation procedures. This protection reaches its high point in the provisions of Section 60H that: ' ... a court having jurisdiction under this Act must not make an order under this Act ... in relation to a child who is under the guardianship, or in the custody or care and control of a person under child welfare law ... '

The States and Territories do not want the Family Court to exercise the usual child welfare provisions (such as care applications) in place of the State and Territory Magistrates Courts and Children's Courts which presently deal with these matters. Equally it is clear that the Family Court does not at present seek such a jurisdiction.

On the other hand, those judges of the Family Court who have studied the English court system see advantages in having an integrated system which deals with all matters relating to children. This is, however, a position which is still far from being a reality in our federation of Australian States and Territories.

Medical procedures for children

In more recent times the most obvious examples of the Court's wider jurisdiction in relation to the welfare of children have been in relation to medical procedures and, in particular, to questions of sterilization.

The High Court decisions of Secretary, Department of Health and Community Services v. JWB and 5MB (1992) FLC 9f92-293 (Marion's case) and P v. P (1994) FLC 9f92-462 have examined the question of sterilisation and have indicated that consent to the sterilisation of a child, whether intellectually disabled or not, is a matter beyond parental power, and hence is not an exercise of the Court substituting its judgment for that of a parent. Rather, it is the Court exercising its parens patriae jurisdiction in a broader concern for the child's welfare.

It is obvious that there are significant jurisdictional problems about ex-nuptial children because of the failure to refer 'welfare' jurisdiction from the States and Territories. However, it does seem that such jurisdiction might be exercised by the State and Territory Supreme Courts, and hence under the cross-vesting legislation by the Family Court. If this is not so the Court may be driven to a further consideration of what is 'a child of the marriage' and the nature of the marriage power under the Constitution. There may also have to be a careful reconsideration of whether the giving of consent to medical procedures is in fact a facet of guardianship or custody or parental responsibility. Two States (New South Wales and South Australia) at present have Guardianship Boards which, among other things, determine issues about medical consents. P v. P is a particularly important case for them because it holds that to some extent the Family Court can override the Board.

Clearly, however, there is a need for legislative intervention. That legislative intervention, if by the Commonwealth, will itself provoke further litigation unless the States and Territories are prepared to concede that in some areas it is appropriate for the Commonwealth to exercise jurisdiction, perhaps through the Family Court of Australia. Indeed, the Family Law Council has considered this issue, and it seems appropriate that there should be federal jurisdiction to deal with these matters; but by whom such jurisdiction should be exercisable is an interesting political question. The case for national uniformity is compelling, and suggests that the jurisdiction should be exercisable by the Family Court provided it can adjust its procedures to allow quick and cheap access to appropriately trained judges.

The Family Court of Australia, through the Chief Justice, has given unequivocal commitments to the revision of its procedures to ensure that there is easy access and expertise that will permit that Court to provide the role traditionally exercised by Courts of Chancery. Whatever forum is to hear and determine these matters, what is abundantly clear is that this is yet another instance where what is crucially needed is child and family support. This is not a question only of Court advocacy but also of advocacy to government departments; for the provision of sympathetic and informed advice about respite and social care, nursing education and counselling assistance. This is a brief for a change in process, not merely a single amendment. With such assistance parents can make informed decisions and judges can have proper and appropriate evidence to help them to reach the best available solution. Regrettably, this means money - government money. (An excellent model of the role of those who are to assist the child and family in these difficult cases exists in the Office of the Public Advocate in Victoria (Britain & Brady 1994))

Communicating family law

One of the pervading and difficult problems in family law has been that its practice involves the interaction of two separate disciplines: law and social science. Lawyers, by their training, are concerned to analyse, identify and examine issues by putting them forward in a contrasted way and facilitating a decision based on those issues to determine a matter. This does not mean, of course, that lawyers do not employ many other skills both in their day-to-day practice and in their presentation of matters before the Court. What it does mean, however, is that lawyers tend to be result oriented and to see the judgment relating to various issues as being more important than other matters about the relationship of the parties involved. For a lawyer, the problem exists today to be solved today, so that it will not be a problem in the future.

Social scientists, on the other hand, tend to see human problems in relationships as continuing and evolving. Factors which may be helpful or even determinative today may not be helpful, or of any determining value, tomorrow. Human relationships are constantly changing as different facets of the emotions and logic of those involved drop into the cauldron of the relationship. To some extent, for social scientists there is no cure or solution; merely an understanding that people are hurting now and that treating what is happening at any particular time is enough.

These two pictures are obviously over-generalisations, but they nevertheless demonstrate some of the problems which occur in family law when the two professions meet from different directions in the destruction or perhaps the resurrection of a relationship. Each approach has some validity, but their interaction poses difficulties - not because one approach should necessarily prevail over the other, but simply because at any time there is no absolute right decision or method. Human emotions are so complex that logic is often eroded and emotions frequently determine what a person's decision will be.

A particular area in which there is often significant difficulty for counsellors, carers and lawyers in understanding each other and in appreciating the other person's point of view, is that relating to child abuse. Counsellors who receive reports about child abuse do not always follow the strict processes dictated by court procedures for the obtaining of information and the recording of the facts. Subsequently, in court proceedings which are designed to look at individual and competing rights, lawyers are critical of the counsellor, and the counsellor critical of lawyers. The average parent or child has every right to be frustrated and annoyed that those who are purportedly trying to help them cannot even reconcile their own differences about how this help should be administered.

In the past, the assumption has been that the best way of making any decision on matters relating to children was to refer them to a judge. Once the facts were clear, a judge could make a decision and that was the end of the matter. However, it is now clearly apparent that judicial determination is not the end of the matter, and that the parties do not generally have problems that are capable of being resolved by one person at anyone time. Accordingly, it .becomes very important that each of those who might help in finding a solution in often stressful circumstances knows how the others involved might operate and why.

Lawyers and social scientists at present interact in relation to children on an almost daily basis, yet do so with an almost total disregard for the other's system, values and disciplines. In my view, it is imperative that they - and be that solicitors, barristers, judges, counsellors, mediators, conciliators, registrars or any other person involved in the process of family law - spend time talking and, perhaps more importantly, listening to each other with an open mind so that there can be some hope of a team solution to a difficult problem. This process of education has already been begun by the Family Court and is worthy of significant encouragement.

It is suggested that into every law course there must be injected study which enables the lawyer to understand different disciplinary approaches. For years law schools have prided themselves on the fact that above all else they teach the proper legal method of approaching problems. This is all very well for dealing with High Court cases but may not be effective in dealing with day-to-day situations with children and parents. Equally, those who wish to practise as clinical psychologists or counsellors should be obliged to have as part of their training some understanding and knowledge of court processes and the interaction and determination of legal rights.

The professions need to appraise critically procedures and practices to see whether they accomplish what they set out to do, and whether children's or parents' rights are being violated in the process. Additionally, it is important that there should be continuing interchange on a practical level - perhaps informally - where parties can discuss in a non-threatening environment their different points of view, how these might be resolved, and how they might work together for the benefit of the children and their parents. While this must, by necessity, be a responsibility of the professional bodies of the respective disciplines, it must also be a function of all those involved with children's matters to remind these professional bodies of their obligation to create environments in which communication is possible. How this process of integration and communication can occur is the future and the challenge for those associated with children and the family law.

Where to now?

Ultimately, the objective of family law is to deal sensitively with the rights and responsibilities of family members in a way that takes account of the dignity and the inherent capacity of human beings to live with and react to each other in a loving and caring way, even in different and changed circumstances. The difficult proposition that the Court is obliged to make a 'once only' intervention in the long period of a child's life during which relationships shift, change, develop and recede, will continue to be a problem.

Human nature cannot be changed and the prescriptions of the legislators and those who advise them as to how parental responsibility might be shared and trauma for children minimised can, at best, represent guidance and a framework for the development of different parental attitudes. The proposed amendments to the Family Law Act will not, and are not expected to, affect those cases (said to be only 5 per cent) in which there are substantial disputes that can only be resolved by the Court. The amendments may, however, bring about a situation where parents do genuinely consider their options and try to acknowledge that their separation or divorce does not stop them from being parents in a continuing and real sense.

The amendments to the Family Law Act at least provide an opportunity for a change in the way in which children are involved in court proceedings about custody through recognition and acceptance of the concept of children's rights. That change may not develop as those who advocate it hope it will. What is clear, however, is that if the present regimen continues, the alienation of children from their parents through court proceedings will continue, and the attitudinal change referred to above will not be achieved except over a longer period and with a much more difficult transitionary phase.

It is startling perhaps to look at the change in emphasis from the 1970s to the 1990s. In the space of one generation there has been a significant shift in emphasis from rights of parents in custody matters to rights of children. The new legislation will not bring to an end all conflict over children. At best it can provide a basis upon which people with goodwill can agree. What the shift has done, however, is to provide a basis for a reorientation of thinking so that all those associated with children, be they parents, judges, counsellors, lawyers, psychologists and even the children themselves, can see that the main efforts of the law where children are concerned in the breakdown of a relationship should be those children's best interests. Perhaps in this way some of the hardship that children must inevitably suffer in these circumstances will be reduced.

References

  • Australian Law Reform Commission (1995), For the Sake of the Kids: Complex Contact Cases and the Family Court, The Commission, Sydney .
  • Britain, John & Brady, Sue (1994), Personal communication from officers of the Office of the Public Directorate, Victoria.
  • Commonwealth of Australia (1989), Representation of Children in Family Law Proceedings, Family Law Council, AGPS, Canberra.
  • Family Law Council (1995), Involving and Representing Children in Family Law, Family Law Council, Canberra.
  • Family Law Council (1994), Letter of Advice to the Attorney General on the Operation of the (UK) Children Act 1984, Family Law Council, Canberra, 10 March.
  • Family Law Council (1993), Comments on the Report of the Joint Select Committee on the Operation and Interpretation of the Family Law Act, a report to the Minister for Justice, prepared by the Family Law Council, Canberra, January.
  • Family Law Council (1992), Patterns of Parenting After Separation, Report to the Minister for Justice and Consumer Affairs prepared by the Family Law Council, Canberra.
  • Family Law Council (1982), Watson Committee Report (Wardship, Guardianship, Custody, Access, Change of Name), AGPS, Canberra.
  • Seymour, John (1992), 'The role of the Family Court of Australia in child welfare matters', Federal Law Review, vo1.21, Part 1, p.l.
  • Toose, P.B., Watson, R. & Benjafield, D. (1968), Australian Divorce Law and Practice, The Law Book Company, Sydney.
  • United Nations General Assembly (1989), The Convention on the Rights,of the Child, adopted by the General Assembly of the United Nations, 20 November 1989.