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Children Speaking Directly to Judges

Should children appear on the stand or submit affidavits?

I have concerns with the idea of the children being directly involved in family court matters. For me the main issue to be sorted out is the parents and getting them to operate post divorce.

If the children get too much direct say that can only undermine the role of the parents (their choices and responsibilities) and reduce the children's respect for their adult parents. This in turn will leave more children without role models, respect for authority, regard for others, a sense of community, a focus on self interest, inclination to tantrum and further court action and later guilt.

Children should be kept of this system as much as possible.

The system already panders to people who can generate fears (violence, abuse , 'better' parenting) , when its starts to put children in a position where they directly CONTROL what happens to their parents - you might as well get rid of the parents completely because any chance they have of raising their children has been COMPLETELY undermined.

The consequences of giving children access to control levers over society, parents, judges etc - IS NOT A GOOD IDEA NOR WILL IT MAKE BETTER CHILDREN OR ALLOW THEM TO DEVELOP INTO EFFECTIVE ADULTS.

 Maybe I am not explaining myself well enough
I have mixed feelings about this issue and agree with a lot of the position JP puts forward.

The motivation to alienate children from their other parent would be even greater.

I can understand how a judge/FM would benefit from talking to a child.

I can, though, see the power in an experienced judge hearing the obvious parroting of a child of alienation and making a stronger decision based on that.

I don't think it would be as simple as a child choosing where they want to live. It does put a lot of strain on a child. Lying for a parent (which is what would happen) is incredibly traumatic for a child and very scarring.

I think a lot of consideration would have to be given and a lot of training in how to communicate with children and adolescents.

An adolescent will pick the parent with the most "toys" or latest x-box.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
"Should Children appear on the stand or submit Affidavits?"

Where on Earth did this notion come from?

On the stand implies as a witness that can be cross examined, buckleys chance of this happening!

The moment there is a Family Report children have an input into part of the decision making process.

Some Judges in the FCoA have spoken to children and the Court is examing ways to formalise this process. If this idea is examined it is sound because in theory the Court is supposed to be making a decison in the 'children's best interest' - the famous 'BIC' - and not those of competing parents. The Act is also specific about taking 'children's wishes into account'.

As the LAT type hearings become more developed I can envisage older children becoming involved with the process.

Children often vote with their feet whether coerced or not and if children are perceived as having a strong preference for one parent - the Courts are fairly reluctant to intervene.

Of course children can and will manipulate a situation, but most of the people that sit on the bench have children and are very well aware of the ways of children.

So, children will not 'appear on the stand' but there is a strong chance that when children show maturity and Family Reports are inconclusive a Judge may speak to them to formulate his/her own views on the childrens wishes.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 

Let the children be heard - by a judge!

Agog said
On the stand implies as a witness that can be cross examined, Buckley's chance of this happening!
The cross examining is not on the cards. Going beyond the limited interviews and the distortions that the values of the report writer is a preferred situation. Too often I have listened to report writers speak authoritatively about someone they have met for 50 minutes. This is not fair firstly to the children, not in their best interests, nor the long term interests of a meaningful relationship between the parents for the benefit of the children.

These report writers appear to be un-impeachable! The court relies upon them, they rely upon the court. I have facts which objectively substantiate in a matter, independent of my self, that they are presuming, not knowing. The adherence to theory, not practicalities is their vulnerability. The impact of a family report writer is equivalent to a judge in that rarely does a judge go against their words. Once a person is adjudged to be suffering from a mental condition by these report writers there is little room for a reversal of opinion as the ego of the report writer is challenged, and they have egos. For a report writer to change an opinion in the witness box appears to be a face losing situation and a unacceptable critique to them of their professional abilities.

Judges are allowed to talk to children and to my mind should be encouraged to do so. In a recent case involving a mentally disabled child there appeared to be no way that the judge could understand the complexion of the child's situation without being in the presence of the child. Judges do not need to wear their horses hair when talking with children and it need not be in the court rooms, not even the courthouse.

Much time is wasted due to the arguments about the child's wishes. Those wishes carry considerable weight. A judge after seeing a child could declare his "evidence" and the capacity of the matter to be resolved more expediently could present it's self. Saving money and time for all.

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
I think you raise some very wise issues verdad, there is no need or the child to be in a formal setting and a quiet 30 minute talk could tell the judge all he needs to know in regard to many things, this could set straight any bias on behalf of the report writer. It seems a very viable solution.
A quiet chat in chambers is a totally different experience for a child. It may in fact, if facilitated well, be a very positive thing for all involved.

Especially powerful when a child comes out with something obviously adult and obviously inappropriate.

A lot of the "he said" "she said" just goes away.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
Thats what I mean it should be allowed for judges to have a bit of chat with the kids.I really dispise the idea that a parents relationship with thier child is balanced on a family report where a person spends a couple of hours with them, no matter how trained or intellegent they are.
A chat in the chambers would be along the lines of the less adverserial trail idea. eg the kids speak for themselves, but the judges dont always feel they have the skills set examine the children, which is why they dont do it.


Han Solo routine "We're all fine here, thanks. How are you?" *weapons fire* "It was a boring conversation anyway!"
One of the issue here is the difference between a child's wishes and the best interests of the child. Most of the time the child wishes for things that are not sensible or balanced - in fact there is evidence their brains can't form 'adult' notions.

The role of parents is to raise children.
The best interests of the child are to be raised by parents.

The only INTERVENTION or INTERVIEW which is appropriate is that at the level of a DOCS intervention.

Anything else is pandering and undermining the parents role - which is not what family law SHOULD BE about.

It should be about sorting out ADULT matters post break up.

There are many people I regret my children being involved with - one was the family court appointed counselor. There are many damaged and strange people in the 'child' business - its not normal for children to be scrutinized, examined or interviewed by 'experts'.

The magistrates and judges I have seen are scary enough to adults. The environment doesn't help either.

Intervention in children - directly - should  not be considered normal or naturally required.

 Maybe I am not explaining myself well enough
Sometimes SRLs get the short end of the stick because they dont know personally the players involved. our lawyer could tell all the reputations and the professinal knowledge about all the shrinks they have met in the system.

IN our case a lawyer told us to reject an expert wittness becasue they were know to have prejudice and not be really that great or insightful about the parties, and as someone who takes everything on face value. For a shrink thats going to decide the outcome of your kids future you dont want that so we went with someone else. If we didnt have the lawyer we would ended up with the prejudiced person as we would of had good faith in the professional reccommended to us.

I believe in what Jon says about the touched souls who you find will work in the family court system. By all accounts the person who they said shoud prepare the report was screwier than a screw, hated men and was a bit of an idiot.

Beware of cheap shrinks or shrinks reccommended by the legal aid commisson because they are cheap. If a shrink is willing to prepare an experts report for 4000-2000 less than most other people there has to be a reason why they are so cheap.


Han Solo routine "We're all fine here, thanks. How are you?" *weapons fire* "It was a boring conversation anyway!"
Its true monster that the legal fraternity know exactly which 'experts' have certain pre-disposition. In fact many firms will OBVIOUSLY use this to the advantage of their client - pick the one which is going to give a report BIASED one way or the other. Some would argue that this is their special inside knowledge - who gives the best result.

What this underlines is that there INEVITABLY a BIAS (of some size and shape) one way or the other by those involved.

The less people 'INVOLVED" in judging me or my children - the better. I find the whole thing intrusive and OFFENSIVE and DAMAGING to my children.

I suspect that the only reason many people are not complaining about this is the conditioning of society to 'trust' the government, people in white coats and 'experts'. This would seem a dangerous (but compliant) and potentially damaging position to take - particularly in the light of evidence and simple common sense and observation.

 Maybe I am not explaining myself well enough
I dont think you can tell if a person is lying, damaging or needs thier head shrunk after one session with the Phsycologist. I think the best thing, even though its intrusive is to run a proper investigation, set up long term observation or couselling. Its impossible to avoid. Without it how do they really get the evidance they need to say who is lying, who is being intractable. JUdges really ahve no other way of getting a real understanding of the people in front of them other than what they see when they are being questioned.


Han Solo routine "We're all fine here, thanks. How are you?" *weapons fire* "It was a boring conversation anyway!"
The issues you raise are interesting. Surely if one was to take the view that 50/50 is the norm then the complexity, time spent, money etc would REDUCE if judges Magistrates - did not have to judge matters which are not criminal standard proof.

In other words the 'crime' of being better or worse parent, of the children's wishes not to see their mother, father etc would be have to be an issue of criminal importance. The 'problem' would have to lead to criminal charges of child abuse, violence, neglect, etc.

Moving to criminal courts and subsequently charging people who lie in court may provide better outcomes - those people who need to be punished or rehabilitated (because of their crimes) are identified and those who lie are identified as well.

if children and everyone else got used to the fact that it was 50/50 there would be less influences and hangers-on involved in the process. To make this work CSA would have to reduce to zero so there was no financial incentive for people to try to get full custody.

Lets face it your parents are your parents no matter how good or bad they are. Society should intervene ONLY AT the SAME standard as docs or CRIMINAL MATTERS - not this 'wishes' thing.

This came about after the DR Spock madness of child raising which has lead to the totally 'indulged and pandered to' mentality which has lead to some of the problems we see in adults today. Not to mention a whole 'intervention' industry.

 Maybe I am not explaining myself well enough
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 Senior Site Moderator and Administrator
No-Justice there is a fair bit it what you say.

There is no doubt a raft of legislation across the board and judges and , prosecutors can exercise their judgment.

One of my points is about getting people (everyone) used to the idea of 50/50 being normal, the likely outcome except in the most extreme circumstances, removing the benefits derived from lying and reducing the industry supporting the family court system. This was surely one of the ideas in the mind for the people who started this - but instead into has continued to grow and develop into a monstor - affecting everyone in this country - sucking dry the energy and efforts of so many people and providing damage and disaster to so many families.

The messages are not coming from the government, courts or the media. The madness continues unabated, the high cost, huge personal damage, destruction of families and creation of single parent families with the 'babies for money' schemes that the government keeps initiating are in a growth phase.

Too much money is at stake - keep taking money from people who work and strive to give it to people who don't and what are you left with? Just how stupid (or evil) are governments and their advisers?

 Maybe I am not explaining myself well enough
    I think if you talk to those who support and advocate the ever growing Court beast that they are creating employment and wealth. Just look at the employment created by the Mediation requirements.

I wonder how often the ICL (child rep) talks to the child/ren for their opinion of what they think would be in their best interest. The ICL is empowered with the duty of advancing the child's best interest but I so often hear and read the child was not considered important enough by the ICL to talk too. They are not trained to talk to children, even though they are often parents themselves.

Would it be more beneficial to the Court for the ICL to visit with the child/ren at the time of the Family Report or some other time to get a personal take on the family dynamics?

Would this be better than a Judge spending time they don't have, in their mind, to spend talking to children. For a more accurate take on who is doing what, although children are often punished by 1 of the parents for talking the truth, mine was hit about the head so he destroyed his room and I was blamed for causing that by the ICL in Court.

He told a nephew under 18 he had told the child counsellor of the mothers abuse and his wish to live with me hence he was belted across the face.

Someone I am talking to now has said his 4-5 yr old has been told they will not see the father again if anything is said about the mother.  

You hear this so often in relocation cases where the children are sworn to secrecy, where this is apparent, is not the ICL more apt than a Judge or FM to talk to the children as part of their duty of care for their charges at law (the children)?

Should we be seeking a law that makes it a requirement for the ICL to meet with the child/ren at least twice in highly volatile matters, matters were relocation is accused or sought, violence and IO, DVO or AVO orders are in place?

Should such a meeting be required by all ICL's not less than 1 month and not more than 2 months before any Final Hearing so the ICL can put to the Court what the child/ren are thinking and their take on what is in their best interests?

It does not matter how much we want to delude ourselves and each other the children don't know what is going on, so often it is the hiding of things that causes the greatest harm to the children because they blame themselves for causing the problems, just talk to children who were young and have been in that position.

They need to know what the Court has Ordered to know it is for their benefit not because the father does not want to see them or some such like told by a parent.
Is not the ICL the best person to explain the effect on the children of the Orders rather than a parent say whatever the parent wants to say is to happen.     
When I read some of the comments in this thread I could not believe that this was in 21st Century Australia. It was like going back two centuries to the days of Victoriana and the paternal attitudes of those times. Behind several comments I could hear those outdated mantras of , 'Children should be seen and not heard!" and that children are the property of parents as if they were still under the provisions of the Goods and Chattels Act. (women got their freedom from that Act in 1922 although in such as the Channel Islands women are still the property of the husband). Nearly a century on and children are obviously still viewed in the same way, a piece of property to be divided up by parents.

From some of the comments it is clear to see why some contributors have failed as parents.

Children's Rights were first recognised under the UN Charter of 1959 although it still took Australia over 30 years to adopt its provisions. (Things move fast in a male-dominated and governed society.LOL).

The RIGHT of children to have their say in matters affecting their lives (and what is more important for them to have a say in who they will live with and meet with) and to have their wishes and feelings taken into account when those decisions are being taken. This is built into the FL Act but unfortunately it fails in its execution because arrogant adults do not allow them their say, but report what they (the reporting adults) believe to be in their best interests. ("In the Best interests of…" was a much loved principle of the government in Nazi Germany and other elective dictatorships since).  This is the greatest failure in the Family Courts and why judicial decisions are so ill-informed.

In many cases the children are far wiser and better able to make reasoned judgements than their parents, especially when those parents are behaving like spoilt brats and mudslining squabbling with each other. Spitting their dummies out, throwing their toys out of the cot, and stamping their feet are also common behaviours by some parents.

Children also have the RIGHT under the U.N. Charter to be protected from abuse and exploitation. This again is where many Family Court judgements fail miserably because those appointed by the Courts supposedly to investigate the abuse do not have the knowledge nor skills to undertake such work and are frequently carrying out such tasks outside of their professional expertise, which should be ruled as inadmissible expert evidence by those Courts. e.g. psychioatrists/psychologists.

Obtaining the direct evidence of children, whether by informal discussion with the Judge, a Verbatim Report to the Judge, or a Sworn Affidavit, is essential in ensuring that justice (for children) is not only done, but is seen to be done.
In nearly every case where wishes or views of the child are a relevant factor a report will be prepared and the views of the child will be in evidence through that report. This is the preferred path.
I hope you weren't seriously suggesting a sworn Affivavit from the child is an appropriate way to deal with the problem??
Oh thats a lot of empty officialese.  Children have the right to present their own views and feelings and NOT distorted versions by another. and Yes I do mean sworn affidavits if the child chooses. Is that too frightening for you to handle?. Might children just speak honestly and openly to Courts, which parents and others would not like.?
 O_o What is officailese?

Do you really think that children would be able to present an affidvait without being influenced by whomever they are with? Do you think they could treat it like a test and expect answers to be given to them prior. Seriously how many little kids have the ability to give written evidance as an affidavit.

Your right children should be able to to get the opportunity to speak but it should be that with some good quality measures. I take it you are not an expert in childcare, a school teacher, early childhood teacher,a physcologist with training in childrens needs, or anything like that, or you would take more care in explaining what is age appropriate for a child in being able to express their own wishes and how you suggest that it be included in the family report or court process.


Han Solo routine "We're all fine here, thanks. How are you?" *weapons fire* "It was a boring conversation anyway!"
My son did just that, he and his cousin wrote an affidavit then the cousin and Aunty filed it in the Court. The cousin was only 17 yrs old so the obstacle of s.100B of the Family Law Act. My son was tired of the Laws his mother was saying and her abuse but most of all that what he said to the Child Psycho went straight back to the mother. He was belted across the face by the mother for speaking out against her abuse so destroyed his bedroom, guess who the ICL blamed for that, yes me even though I had had no contact with him, only the Anglicare Worker who reported his words back to the mother.

The ICL was the most offended by the children speaking out in the affidavit because what my son said undermined all her applications and statements that supported the mother from the mother's hearsay only. All evidence against the mother the ICL contested beyond belief but they have the power and us it to pervert justice to what they want.

I agree, a lot of children under 16 yrs do not have the writing skills to properly put into words that can not be twisted into something it is not. The cousin had lived with his mother most of his life so was supportive of the mother. After about 12 hrs interaction and conversations with my son they decided they needed my sons views to be put forward.

I did not stop them as I was unaware of s100B, but I was aware of "The Convention on the Rights of the Child" that says a child should have a right to speak out in whatever way they choose.  

"The Convention  on the Rights of the Child"Article 121. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Article 131. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice.

2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others; or

(b) For the protection of national security or of public order (order public), or of public health or morals.

Article 141. States Parties shall respect the right of the child to freedom of thought, conscience and religion.

2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

S.100B is within this Convention but also restrictive of the right of the child to speak out when they have a need for their own protection.

If, like our ICL, they claim they are not trained to talk to children, even though they have 3 teens of their own, therefore it would not be right to meet and speak to the children.

Remember my son told the mother's solicitor that the mother was grabbing him around the throat and making threats of harm and the ICL had been acting 2nd chair for the mother. The evidence put it beyond doubt at that time.

My point is the UN Convention for the Rights of the child says YES the children should have a right to speak out against those who offend them. The Family Law says they should not, it can be guest that the reason is because 1 parent will get the child to swear to 1 thing and the other to another, so where does that leave the Court. At least 1 of the sworn statement is perjury or fabrication of evidence by 1 of the parents, but who?

And an additional dilemma for the Court to sort out, hence, children do not make affidavits.

They can speak to the Judge in chambers if the Judge agrees.
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