The courts have always given much weight to family consultant reports and expert opinions.
Family consultants meet with parents and their children not long after they are appointed by the court. They are appointed when mums and dads are unhappy with the current parenting arrangements for whatever reason and have made an application to the court seeking certain orders about parenting.

Super quick assessments

A parent normally has one meeting with that consultant by themselves and in most cases another meeting where the child is present. These one or two relatively short meetings, if they don’t go well, can lead to reports where one parent is portrayed in a lesser light than the other.
Reports that highlight one parent as being a deficient parent (for whatever reason), can eventuate into court orders where that parent may be given all sorts of conditions from limited access, to supervised parenting, to no parenting at all.
A family consultant report, acted on by the court, can have devastating consequences for the parent left behind.

Unaccountable consultants

A recent investigative report on the ABC website entitled “Unaccountable” noted many parents’ concerns about the increasing role the “family consultant” plays in court proceedings. The problem with many reports written by these court appointed experts is that they are being seen as highly biased to one party. As the ABC report noted, “In the family law system psychologists, psychiatrists and social workers can give evidence and impact cases, but a review has found no-one is keeping them in check”.

From a psychologist conducting interviews in wine bars, pubs and other places without privacy to a particular Sydney psychiatrist known as a ‘serial failure’ when it came to his role with the court, to children being intimidated and threatened at interview by psychologists to social workers writing subjective reports favouring one parent because they didn’t like the other. Is it any wonder many parents are concerned about these “Gods of the court” that seem accountable to nobody. 

A long-awaited report into the Family Court by the Australian Law Reform Commission (ALRC) urged the Federal Government to tackle concerns about the quality of these court appointed experts by introducing mandatory accreditation and lifting the veil of secrecy around them.

Dodgy report writing training

Presently, it doesn’t seem to take much to become a report writing expert. The Association of Family and Conciliation Courts (AFCC) which describes itself as “an interdisciplinary association of professionals dedicated to improving the lives of children and families through the resolution of family contact” is one of the lead players in training professionals in the area of report writing.

Now you would imagine that the training any psychologist, psychiatrist or social worker would need to write these do or die reports would be quite substantial. Alas, that is hardly the case.
Available online are the four modules you need to do to qualify as a Family Report Writer.
Pay the money, download the 4 modules and do them without any oversight or examination in the comfort of your own home and bingo you’re an instant family law expert who can assess parents and children!

So who can be a family consultant and what guidelines must they follow to when writing a report?
Family consultants tend to be psychologists or social workers who specialise in child and family issues after separation and divorce. However, as mentioned above, it seems you either learn your court report writing skills as you go or get them via an online course, with little direction. That doesn’t seem like very thorough training considering the ramification a negative assessment can have on one parent.

And when these reports are done with bias and/or inaccuracies and complaints are made by parents, the relevant investigative authorities are ducking and covering to protect their members. The ABC investigation notes that the Health Care Complaints Commission  after receiving a dozen complaints about one psychiatrist report writer, eventually stated after their investigation that “we took this matter seriously… but…the commission does not have the power to investigate a complaint about the conduct of an expert witness. This includes even if a complaint were to be referred to the commission. The ALRC report in March of 2019 found that psychiatrists and psychologists in private practice who provide family reports played a “crucial” role in legal cases.

It also found there was no way of holding them to account if they failed to meet the professional guidelines set by the court.

So even though there is a complaints process in place by the courts, it may indeed come to nothing or more to the point be looked at only after your family law matter has been finalised. Not really a big help when the horse has already jumped the cart.

What can the court do about below par family consultants?

The Court’s Child Dispute Services is responsible for overseeing the work of family consultants. If you are concerned about the conduct of a family consultant, or the report or memorandum they have provided to the Court, the appropriate forum for raising this is within the proceedings by cross examining the family consultant. That can be a real difficulty for self representers because there are certain ways you need to do this and it does take much skill.

If you wish to cross-examine the family consultant who prepared your report, you (or your lawyer if you have one) must write to the family consultant at least 14 days before the hearing in order to ensure they are available.

If you are seeking to have the family consultant assigned to your case replaced with a new family consultant, this can only be done by applying to the Court within the current court proceedings. You would make an application in a case with a procedural order that the family consultant be replaced. Again, your affidavit would need to have compelling evidence to explain why this needs to be done. Again, an onerous task for the self representer! If you need help with these applications we would be happy at The Legal Eagle to assist at our usual low cost.

Complaining

Complaints about family consultants, or the assessment they have conducted, cannot be investigated nor brought to the attention of the family consultant while your matter is currently before the Court. This is because the family consultant is an expert witness and doing so could be considered to be interfering with a witness in a matter.
You can also bring to Court’s attention issues relating to the conduct of an independent children’s lawyer but only if their conduct has adversely affected your current case. The Court cannot deal with such complaints after final determination of your matter.

It’s always worthwhile writing to an ICL to give them an understanding of your problem with them before going down a complaint pathway.

By the way, in relation to complaints about Independent Children’s Lawyers, you may wish to also notify the relevant State or Territory legal aid body responsible for appointment of the Independent Children’s Lawyer in your matter. Alternatively, there is also the Legal Services Commissioner.

One of the things that I find saddening about this is that no parent, already under stress from enduring a family law matter, should have to be also lumbered with biased or incompetent report writers and “experts”. This has been going on for far too long and simply adds more frustration to the parties involved. If you suspect you have a poor ICL, family consultant or expert act quickly and make your concerns very clear to the court. If that individual needs to be cross examined get a lawyer or barrister involved for that process rather than take on that task yourself.

Oh and If you want my blunt view on Independent Children’s Lawyers who don’t really represent children at all click HERE.

If you need some assistance with your matter we offer low cost help with all your documents and applications-

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Growing up in the 1970s, I was a pretty opinionated kid and indeed some of those older and taller folk around me would have said you just couldn’t shut me up. A tiny pioneer for kids in an age where children were mostly seen and not heard. I remember with sadness and much melancholy my parent’s divorce in 1975, a mysterious event that I had little say in, and where no counsel was sought from me about what my best interests might be.

Has much really changed?

When Australia ratified the United Nations Convention on the Rights of the Child (UNCRC) in 1990, it accepted that children would enjoy the rights set out in it. Included in these rights are that where a child is involved in and affected by any judicial proceeding, that child should be given the right to freely express their views and that age in itself is no barrier to a child having full participation in any judicial process.
However, in Australia the views of children still remain secondary. Children’s views are hampered by legislation that treats their input as not a primary but rather an additional consideration; a common law centred around predictability and precedent; and a judiciary reticent about hearing children’s views.
 Professor Lawrie Maloney notes that children are not passive recipients of our wisdom, but active constructors of their own worlds, and with this in mind a move is needed beyond the “best interests” rhetoric, to legislation and family court processes that better reflect the inclusiveness of children.  
Paradoxical  positions on children’s views
When it comes to protecting a child’s rights, the UNCRC makes it clear that governments have a responsibility to take all available measures to make sure children’s rights are respected, protected and fulfilled.
However in contrast to this, the UNCRC also recognises the interdependence of parents and other family members in mediating a child’s level of functioning. It states that governments need to respect the rights and responsibilities of families to direct and guide their children so that as they grow they learn to use their rights properly.
For legislators the paradox was set, children must have a right to be heard but the role of parents in directing and guiding their children must also be prominent.

In reviewing the current legislation concerning a child’s right to be heard, a familiar pattern emerges ensuing that children’s views are secondary ones. For example, a child’s view in family law proceedings is not a primary consideration but rather an additional one, that is overshadowed by a necessity for the child to have a meaningful relationship with both parents.A child who doesn’t wish to have this “meaningful” relationship would find its objection a secondary one in the eyes of the court. But this was not always the case under an earlier version of the Family Law Act (FLA), where a child’s wishes were first in the list of things the court had to take into account. (The long amended s 68F(2)(a)).
The court must consider:
any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes.
It is also interesting to note that Part VII of the FLA’s objectives and principles regarding children fails to mention any right of a child to express themselves in family court proceedings, which clearly goes against the child’s right under the UNCRC.  This section’s main emphasis is on promoting relationships between parents and protecting children from harm.

Family Consultant Reports Rarely Indicate A Child’s View

The primary way the views of a child are presented to court is via a family report. However, as Dr Robyn Fitzgerald and Professor Anne Graham have commented, the participation of a child in such a report must be looked at in terms of the legislative pathway the courts take to arrive at parenting orders.
As such, the primary considerations of achieving meaningful relationships with both parents and protecting the child from harm predominate. Additionally, children are given no opportunity to provide input on the amount of time they may or may not wish to spend with each parent. And if you find this hard to believe, have a look at sections 65D-DAA of the FLA.

At this circus, no room for the kids…

Although the FLA encourages parents in reaching agreements to have regard to the best interests of the child, there is no direct input offered to the child apart from a diluted version of their views written by a family consultant. The report should mention the child’s views but the recommendations must represent the child’s best interests.

The lawyer with no client – welcome to the fuzzy world of the ICL

In a small number of cases the court may also appoint an Independent Children’s Lawyer (ICL) to represent the best interests of the child. The ICL must ensure relevant views of the child are put before the court. However, the ICL is neither the child’s legal representative nor is obligated to act on the child’s instructions during proceedings. In fact it is better to think of the ICL’s client as the Family Court, because a child has no right to dismiss an ICL if they are unhappy with any representations made.
Parallel this with New Zealand’s Family Court where a child can be provided with a lawyer who will act as “lawyer for the child” and not, as in Australia, for the child’s best interests.

Reluctant Judges?

It seems that in light of the legislative restrictions placed on the input and involvement of children, the “less adversarial trial” (“LAT”) model introduced to make child proceedings in the Family Court more child focused and flexible, is akin to a cart without a horse.  The paradox of common law authority in Harrison v Woollard, where the Full Court stated that “a child’s wishes must not only be considered, but must be shown to be considered in the reasons for judgement”, pales in significance to the paramount aim of the court to apply the two FLA primary considerations. Furthermore, in the principles the court must give effect to in conducting child related proceedings, having regard to the child’s views receives no mention.
It’s important to note that the family law rule regarding interviewing of a child in family law proceedings by a judge was removed by the Family Law Amendment Rules 2010.  Perhaps an indictment to the fact that research by Dr Michelle Fernando has shown that most Family Court Judges have never actually met with children in parenting disputes. This reluctance still lingers despite Richard Chisholm, a former Judge of the Family Court, stating that it is important for children’s views and experiences be heard by the judiciary.

Letting the kids speak up

This desire of children to express their views rather than have them filtered via social workers, psychologists and ICLs has been accepted and appropriately legislated for in countries like New Zealand and Scotland.
For example, the Care Of Children Act 2004 (COC) in New Zealand states that children must be given opportunities to express their views and these must be taken into account. The COC also requires a lawyer acting for the child to explain parenting orders in a language that the child understands. Peter Boshier, the former Principal Family Court Judge in New Zealand noted that the COC gives the Court a less adversarial model that offers “a realistic view of the child’s view and for the child…a meaningful way to participate”.
Contrast this with the expressed disapproval of  Australia’s recent Family Court Chief Justice to the practice of judges ascertaining children’s views. [Here I refer to former Chief Justice Bryant commenting in The Australian article , ‘Judges Urged to Talk to Kids in Family Disputes’ ] 
However, when Australian judges do listen to children they find it very helpful when making decisions about parental orders and custody as was shown in ZN v YH and Child Representative.  Indeed, as the New Zealand model has shown, the key to fostering a child inclusive family law proceeding is to not pretend that there is this magical commodity called the “best interests of the child” that must be in the forefront of judges, lawyers, and parents minds, and instead develop a less adversarial model that takes the time to listen to and understand children in their own unique way. 
Solutions
Children can only feel comfortable expressing themselves when they are offered an environment that helps them cope with the bereavement and change they endure when their parents decide to separate. The current legislation and the common law processes fail to fully comprehend this.
Dr Robyn Fitzgerald notes that a move is needed towards a national framework for children’s participation in family law processes. In this framework, the key is to both conform with the UNCRC and elevate children’s views to an object and principle of the Family Law Act and a primary consideration in section 60CC(2).

So how do you get the child’s voice heard?

The current Less Adversarial Trial (LAT) model, whilst being more flexible and child-focused, still does not specifically encourage the participation of children.
In addressing this, judicial meetings with very young children might involve the judge interacting in “toy play” in the company of a child psychologist helping to interpret the child’s views. For an older child, it may simply be getting an invitation to speak freely with the judge in an environment that lacks the formality of chambers.
Judges must also be given  training and guidelines to help facilitate a child’s views being heard and understood.  As a prerequisite to this, the FLA needs to be amended to create a pathway so that family law proceedings and judges can embrace this. It is important that judges and children both feel comfortable with the process.

It is children who are the victims of their parent’s disputes and eventual separation, and it is essential that the courts and all the players pay them the recognition and respect they deserve by giving them a voice. The great logic in fostering this inclusiveness, according to Professor Judy Cashmore, is that children’s views have been proven to lead to better decisions and happier workable arrangements in family law proceedings.

So I guess they were right all those years ago, you just can’t… and shouldn’t shut the kid up.

Other helpful reads from The Legal Eagle…

What happens to my kids when I separate or divorce?

The secrets that help to win family law cases

What happens when kids only want to spend time with one parent?

DEALING WITH THE RULE BREAKERS
When a court puts parenting orders in place, it’s often the result of a long process involving weighing up the evidence presented by both parents via their applications, affidavits and at the hearings. Normally, by the time these orders are worked out and formalised by the court, there has been an enormous emotional and indeed financial investment by one or both parties. 
And court orders regarding parenting are the lesser road travelled.

Most mums and dads manage either through respect for each other or an awareness of the potential damage delays in organising shared parenting can cause to children, get down to working out either an informal agreement or an agreement by consent.

 The difference is a parenting order is made by a court whereas a less formal parenting plan is a written agreement that sets out parenting arrangements for children. A parenting plan is not legally enforceable whereas parenting orders are.
Some folks work out an agreement but still want the courts involvement. So they take their agreement to court and ask for “consent orders”. Here, both parties work out how the parenting is to be shared and then get down to putting this in writing. This is normally with the help of a lawyer who gives the judge a document called “consent minutes” which detail the exact way the parenting will occur from drop offs and pickups, where the visits or stays will occur, and time shared during holiday times, birthdays. I like to think of this method as I sort of trust you with our agreement but I want the court to look at it, seal it and in a way hold us to account over what we have agreed to.

However, when all negotiations between parties fail and you can’t work out how the parenting will be conducted, you need to go to court so they the judge can look at both sides of view (and the best interests of the children) to devise your parenting orders.

Parenting orders that are worked by the court with overriding perspective of the best interests of the children. If your fight is over petty things this will not be important in the court’s eyes.
 And these orders, apart from stating the usual organisation things like what times and how parenting is to shared, can also set out more serious commitments that may need to be made by a parent. Examples of this might include the need for regular drug testing, the need for parenting to be supervised and even restrictions on where a parent may travel with a child.

Once these orders are in place mums and dads must follow the orders made by the court. If you believe the other parent has not complied with an order, you can:

• Seek legal advice
• Attend family dispute resolution
• Apply to the courts for new orders, or if it is very serious, a contravention order.

  Please note you cannot e-file a contravention applications

Seek legal advice
You should seek legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also help you reach an agreement without going to court. You can seek legal advice from a legal aid office, community legal centre or if you have the bucks, a private law firm. Court staff can help you with questions about court forms and the court process, but cannot give you legal advice.
 At The Legal Eagle, we can also help you prepare your applications for a very moderate cost.
 You can make an appointment HERE.
Attend family dispute resolution
Family dispute resolution can help you and the other party work through your disagreement. Resolving issues this way is less formal than going to court and should cost less in cost, time and emotion. As both parties work on the solution, the agreement is likely to last longer.
 Even if you have been down this road previously it is still worth trying as the potential cost savings of solving problems this way is worthwhile.
Make a contravention application
So for what sort of things can you seek a contravention application?
A parent is normally found to have contravened an Order where they have either:
a) Intentionally failed to comply with the Order; or
b) Made no reasonable attempt to comply with the Order.

When drafting a contravention application, it is important to specify whether you say the other party either intentionally failed to comply or made no reasonable attempt to comply.

And if you are making the application in a contravention matter must show the Court that:
a) An Order exists (whether an interim or a final order); and b) The respondent has contravened the Order.
You must state, clearly and concisely, the facts you rely upon to demonstrate the contravention. If you allege that more than one order has been contravened, or that an Order has been contravened, or that an Order has been contravened on more than one occasion, deal with each alleged “breach” separately.
Making one statement to cover all alleged contraventions, as happened in this matter, is not advisable.
 And be careful not to be petty with applications that are based on a parent on a couple of occasions missing a handover by half an hour. Another one I remember was a parent who always thought the other parent had been drinking when they had the child. No real evidence here, just suspicion mixed with the usual dose of contempt.
These sort of things just won’t fly in court.

The Court deals with Contravention Applications in a strict manner, due to the penalties that can be imposed. As a result, it is important to get your Contravention Application “technically” right from the start. In a recent case, the Court dealt with a Contravention Application by the Father which alleged that the Mother had breached three parenting orders by “obstructing the organising of time between the father and the child”.
The Father’s application did not contain any specific allegations relating to any of the Orders that he alleged had been breached. The Court found it was “vague” and in “generalised terms”.
Ultimately, the Court found that the Father had not established a contravention by the Mother, on any of three counts.

Costs in contravention proceedings
Costs can be awarded in contravention proceedings that affect children but it can run both ways.
If the Court decides that a ‘more serious’ breach of an order has occurred, it must order costs against the person breaching the order, unless it would not be in the child’s best interests. If the Court dismisses a contravention application or finds that no action is required, and such a finding has been made previously, it must consider ordering costs against the person who filed the contravention application.
Before filing a Contravention Application, consider the result that you want to achieve. The remedies available from the Court range from the enforcement of an order to the punishment of a person for failure to obey an order. For example, the court may make an order that:

• ensures the resumption of the arrangements set out in an earlier order;
• compensates a person for lost contact time;
• varies an existing order;
• puts a person on notice that if the person does not comply with an order, the person will be punished

And remember if you don’t actually want the other party punished (eg. fined or imprisoned) for the breach but rather want a speedy remedy to ensure the resumption of the arrangements set out in an earlier order, you may be able to file an Application in a Case rather than a Contravention Application.

To find out what happens at a Contravention hearing click the link below:
https://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/my-ex-partner-isnt-following-the-court-orders-about-our-children-what-can-i-do/the-contravention-hearing

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