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September 2018: Hearing the voices of children in family disputes

Introduction

From its commencement, the Family Law Act 1975 has sought to promote the best interests of children. The Act focuses on the rights of children and the responsibilities that each parent has towards their children, rather than on parental rights, with the aim of ensuring children can enjoy a meaningful relationship with each of their parents, and are protected from harm.  The family law system helps people resolve the legal aspects of family relationship issues, including family relationship breakdown, and encourages people to agree on arrangements without going to court.

However, despite its focus on children’s interests, experts and scholar have argued that the family law system has not always been good at finding the safest and most effective ways of hearing children’s voices (see for example, Kaspiew et. al. 2014).  In 2017, the Australian Government announced its intention to direct the Australian Law Reform Commission (ALRC) to “conduct the first comprehensive review into the family law system since the commencement of the Family Law Act in 1976, with a view to making necessary reforms to ensure the family law system meets the contemporary needs of families and effectively addresses family violence and child abuse” (ALRC, 2017).  One of the terms of reference is for the ALRC to consider the paramount importance of protecting the needs of the children of separating families.

With a view to understanding the contemporary opinions of visitors to our website, the focus of Relationships Australia’s September 2018 online survey was on capturing the voices of children in family disputes.

Previous research finds that…

  • Only 44% of mothers and fathers agreed that that the family law system meets the needs of children, just under half of all parents agreed that the system effectively protects the safety of children, and just over two-fifths of all parents agreed the system effectively helps parents find the best outcome for their children (AIFS, 2012)
  • High conflict divorce on children roughly doubles the rate of emotional and behavioural adjustment problems in children (Savard & Zaouche, 2014)

Results

Around 950 people responded to the Relationships Australia monthly online survey in September 2018.  More than three-quarters (76%) of respondents identified as female, with more female than male respondents in every age group (see Figure 1 below). Just under 85 per cent of respondents were aged between 20-59 years, and more than half (52%) comprised women aged 20-49 years. As for previous surveys, the demographic profile of survey respondents remains consistent with our experience of the groups of people that would be accessing the Relationships Australia website.

A substantial majority of survey respondents reported that they (women - 92%; men - 88%) believed children should have a right to express their own views and opinions in family disputes.

There were significant differences in the reports of men and women when survey respondents were asked their opinion on the types of participation that would be appropriate for children.  A substantial majority of men (92%) and women (94%) considered that children should directly participate in mediation and other forms of out-of-court family dispute resolution.  One third of male and female survey respondents reported that children should directly participate in mediation or other forms of out-of-court family disputes without the need to consider age or maturity (figure 2).  Men were more likely than women to agree that children should directly participate if they were a certain age or maturity (men - 40%; women - 32%), while women were more likely than men to report that children should only participate indirectly such as through a report from a child psychologist or youth worker (men - 28%; women - 21%).

A smaller, but substantial, majority of men (86%) and women (89%) reported that they considered children should directly participate in Family Law Court proceedings.  Just under one-quarter of survey respondents reported that children should be given the chance to directly participate in Family Law Court proceedings regardless of age or maturity (figure 3).  Men were more likely than women to agree that children should participate directly if they were a certain age or maturity (men - 36%; women - 28%), while women were more likely than men to report that children should only participate indirectly such as through a report from a child psychologist or youth worker (men - 29%; women - 38%).

The monthly survey asked respondents to consider the age at which they considered children's views and opinions should be validly taken into account in resolving family disputes.  One quarter of survey respondents reported that children’s views and opinions should only be taken into account if they were aged over five years.  Just under one quarter (22%) thought that children’s opinions should be taken into account if they were aged over ten years, while more than one quarter of survey respondents thought that the decision to take a child’s opinions into account should depend on the individual child (27%).

More than fifty per cent of survey respondents thought that people working with children during family disputes should be a psychologist or social worker with experience and skills in working with children.  More than thirteen per cent thought the minimum requirement should be a three-year psychology or social work degree and a further ten per cent reported that people working with children during family disputes should have a minimum of five years’ experience in working with children.  Only six per cent of survey respondents considered a legal or dispute resolution qualification was sufficient (table 1).

Table 1. Reports on the desired qualifications and skills of people working with children in family disputes.

Qualifications and skills of workers

%*

Working with vulnerable people police check

6

At least 2 years' experience working with children

9

At least 5 years' experience working with children

10

Psychology or social work diploma (2 years)

8

Psychology or social work degree (3 years)

13

Legal or dispute resolution qualification

6

Psychologist or social worker with experience and skills in working with children

51

Other

6

*respondents may have chosen more than one qualification/skill

References

Australian Law Reform Commission. (2017).  Rview of the Family Law System.  https://www.alrc.gov.au/inquiries/family-law-system

Rae Kaspiew, Rachel Carson, Sharnee Moore, John De Maio, Julie Deblaquiere and Briony Horsfall. (2014).  Independent Children’s Lawyers Study, Final Report, 2nd edition

Rae Kaspiew, Rachel Carson, Jessie Dunstan, Lixia Qu, Briony Horsfall, John Maio, Sharnee Moore, Lawrie Moloney, Melissa Coulson and Sarah Tayton, (2012). Synthesis report – Evaluation of the 2012 Family Violence Amendments, AIFS

Savard, N., & Zaouche G., C. (2014). Violence conjugale, stress maternel et développement de l’enfant [Domestic violence, maternal stress and child development]. Canadian Journal of Behavioural Science / Revue canadienne des sciences du comportement, 46(2), 216-225. http://dx.doi.org/10.1037/a0030622

Relationships Australia State and Territory websites