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Judges urged to talk to kids in family disputes

The Australian
11 July 2008

Judges urged to talk to kids in family disputes
By Stephen Lunn, Social affairs writer

Family Court judges should be willing to talk directly to children in custody disputes, but remain loath to take an inquisitorial approach to their cases.

Discussions with children offered judges direct evidence of a child's wishes and made the child feel more engaged in the process deciding their future, a family conference heard yesterday. But judges tended to stick to the traditional role of observer, and felt they lacked the expertise to interview children.

"Judges do have power to speak with children … but it hardly ever happens," University of Tasmania family law lecturer Michelle Fernando told the Australian Institute of Family Studies conference in Melbourne.

"They're reluctant because they still believe it's an inappropriate role to be an inquisitor rather than an independent observer. Also they don't believe they have the requisite training."

She said the reticence was a shame because the practice could benefit the children and their parents, as well as the family law system.

"First, the judge is getting direct evidence from the child without any filtering of views through an intermediary," she said.

"Second, there has been research to show children do receive a benefit from being involved in the process. They're more likely to be happier with the decision and stick with it. Children who feel they can't be involved are likely to feel greater stress from the separation."

Under changes to the Family Law Act in 2006, the court system was supposed to encourage a less adversarial approach to resolving disputes, Ms Fernando said.

The court had a duty under national and international law to take the child's views into account. And the few judges who were prepared to speak directly to children in legal proceedings were happy with the outcome.

"The changes to the act two years ago mean judges are stepping outside their traditional role anyway, so why not go that extra step and speak to the children?"

Ms Fernando said the procedure should complement the role of family consultants in court matters rather than replace them. Family consultants provide reports to the judge on the wishes of the child. The default position should be that a judge talked to the child unless the child did not want to, she said.

But Chief Justice of the Family Court Diana Bryant said it was not a good idea for judges to talk directly to children for "forensic purposes" - in other words, to gather evidence for a final decision.

"First, judges are not qualified for this purpose, nor should you expect them to be," Chief Justice Bryant told The Australian. "Second, there are often quite complex issues around what a child actually says: for instance, whether it's under pressure from a parent."

She said a trained psychologist or psychiatrist had the opportunity of seeing a child in the context of their parents and including that context in a report to court.

"We have the luxury of really good reports from highly qualified experts, which very often give a wider context beyond just what a child says: for instance, how they react to parents," she said. "It's an extremely valuable tool for a judge."

The Chief Justice said that for non-forensic matters, such as explaining the context of a decision the judge was going to make, there might be a role for more contact between the judge and the child. "But even then you would have to be extremely careful about the process."

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