Overview of the AIFS Independent Children’s Lawyer Study

Jessica Goddard

Jessica Goddard

Online Legal Information Author at Family Law Express
I am currently studying my fourth year of a combined Law and Social Science degree, majoring in development and cultural studies at Macquarie University, NSW. I have a strong passion for social justice and humanitarian issues and highly value the role of legal research and legal reform in positively impacting these areas. I have paralegal experience spanning a number of areas of law and endeavour to use my legal knowledge and skills to assist those facing legal complications or a challenge of their rights.
Jessica Goddard

Independent Children’s Lawyer Study: Final Report Independent Children’s Lawyers (ICL’s) have been a hotly debated issue within Family Law in Australia.

The recent controversies surrounding ICL’s have necessitated inquiry and the Australian Government’s response has been an Australian Institute of Family Studies study into the effectiveness of ICL’s commissioned by Attorney General Nicola Roxon and the Attorney General’s Department.

The study, examining the extent to which the involvement of an ICL in family law matters improves outcomes for involved children, was concluded with the release of a final report in May 2013 by the Australian Institute of Family Studies (AIFS); Independent Children’s Lawyer Study: Final Report (AIFS ICL Report).

The final report evinced a number of important findings, significantly contributing to the ICL debate, albeit from a definitively legal perspective.

Of the 562 research participants involved in the study, 528 participants were professionals working within Australia’s family law system, a notable 169 participants being ICL’s themselves and another 192 participants being non-ICL lawyers.

Thus there is a strong predilection within the study towards legal opinion.

This does not necessarily discount important findings of the study. Rather, in considering the research findings one must be mindful of the inherently legal perspective from which they emanate.

Main Findings of the Attorney General’s Department Commissioned ICL Study

The AIFS ICL Report importantly recognises existent concerns regarding ICL’s.

Namely, these concerns are recognised to relate to Australia’s current ICL model, Australian ICL funding arrangements, and most importantly, whether or not these stand to satisfy Australia’s obligations under the United Nations Convention on the Rights of the Child [1-UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations 1.

Moreover, the main findings of the study emphasise that the practice of ICL’s in Australia is fraught with a number of complexities.

The first of these complexities revolves around the policies which guide and dictate ICL practice.

It is revealed that whilst the legislative framework for ICL’s is consistent across States and Territories, in reality there are considerable differences in the policies of State and Territory Legal Aid Commissions insofar as ICL practice is concerned.

This inevitably contributes to the further finding that there are substantial variations in ICL funding across States and Territories.

The AIFS ICL Report starkly notes funding disparities, reporting that between 2009 and 2012 funding arrangements varied to such an extent that total ICL grants ranged from just over $395,000 in the Northern Territory to just under $23 million in Queensland.

The AIFS ICL Report presents that not only do ICL policy and funding arrangements vary, but ICL practice varies, an inevitable consequence of differing policy and financial structures.

ICL’s and the Lack of Contact with the Children they Represent

The greatest variation in ICL practice is reported to be in the area of participation, that is, the extent to which the ICL’s engage with and involve the children to whom they are appointed.

Participation is explained to involve familiarisation (that is the child becoming familiar with the ICL and vice versa), explanation (explanation by the ICL of the legal matter and related processes and outcomes to the child), and consultation (active engagement of the child by the ICL in seeking to obtain and understand the child’s views concerning the legal matter).

The AIFS reveal that variance within ICL practice and approaches are most prominent in the area of consultation.

The AIFS ICL Report identifies the role of an ICL to be a multi-faceted role made up of three dimensions, which, as revealed through their study data, are relevant to varying extents, such extents dependent on individual case circumstances.

These three dimensions are identified to be:

  1. the facilitation of the child’s participation in proceedings;
  2. evidence gathering;
  3. and litigation management.

Perhaps one of the major, and certainly more important, findings of the AIFS ICL Report is that there is a definite disparity in perspectives regarding these dimensions of ICL roles.

It is reported that ICL’s themselves value the evidence gathering and litigation management dimensions of their role above their function of facilitating child participation.

In stark contrast, the children involved with ICL’s along with their parents and carers place the most value on the facilitative aspect of an ICL’s role. This disparity in perspectives clearly causes detriment to satisfaction with ICL practice, and, as the AIFS ICL Report reveals, significantly decreases confidence in the ability and capacity of ICL’s to understand and advocate for a child’s best interests.

role-and-efficacy-of-ICLs-graph

Role & Efficacy of ICLs Graph

Regarding assessments of the effectiveness of ICL’s, the general trend in the AIFS ICL Report was positivity on the part of judicial officers and ICL’s but lesser assessments coming from non-legal professionals and non-ICL lawyers.

Despite these assessments, the AIFS ICL Report repeatedly finds that ICL’s are valued for their independent, impartial and child focused perspective. Furthermore they are found to be particularly valued by judges, esteemed by judges from an evidence gathering perspective.

The AIFS ICL Report acknowledges extreme diversity in the circumstances and families to which an ICL is appointed, such diversity adding complexity to the ICL role.

A significant theme which emerges from the AIFS ICL Report in regards to the parents and children involved with ICL’s is that these parents and children understand the focus of an ICL’s role to be participation of the child in the matter.

As aforementioned, the Report reveals an inherent contradiction between this view and the view of legal practitioners, this incoherence recognised as one of the key issues which needs to be addressed in the realm of current ICL practice.

The AIFS ICL Report concludes that there is a potential capacity for ICL’s to be admirable and in such a case to be highly valued by the broader legal community and those involved in family law matters.

The AIFS do however recognise that concerns exist about the capacity and commitment of certain practitioners. Broadly speaking, the AIFS recognise that concerns exist in regard to the adequacy of ICL training and accreditation.

They further recognise the constraints placed on ICL service provision as a result of ineffective funding arrangements.

Moreover, it is significant to note the AIFS’ recognition that the performance of certain ICL’s does not meet the required standard, principally as independence, impartiality and professionalism are concerned.

Finally, the AIFS ICL Report notes that there are multiple individual and systematic issues which impact upon views as to the effectiveness of ICL practice.

Whilst not giving an overwhelming impression that reform is needed, the AIFS present the respondent consideration that current mechanisms for ICL selection, training, performance monitoring and accountability assurance, need to be strengthened.

For more information on ICL’s keep an eye out for Family Law Express’ upcoming Final Report of an independent study into Parental Experiences with ICL’s.

If you have been involved in a matter regarding Australia’s Child Protection System and wish to contribute to a 2014 Senate Inquiry into Children in Care in Australia then please contact the Australian Legislative Ethics Committee.

 

  1. UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations.

Family Reports and the Psychology Industry in Family Law: Expert Interview

Valerie Cortes

Valerie Cortes

Online Legal Information Author at Family Law Express
Valerie is a Bachelor of Business Bachelor of Laws student at the University of Technology Sydney, majoring in International Business. Upon graduating, she plans to work in areas of family law and international human rights law, as well as an interest in international business law and commercial law. She volunteers as an interpreter for clients at a refugee case services.
Valerie Cortes

 

Dr-Travis-Gee-Psychologist

Dr Travis Gee

Family Law Express has had the privilege to interview a Brisbane-based psychologistDr. Travis Gee, on his views of the psychology industry within the context of Family Law.

Dr. Travis Gee is an Honorary Life Member of the Australian Counselling Association, of which he is an Executive Board member.

Dr. Gee is currently in private practice.

Dr. Gee extensive and broad experience has included him teaching in universities in both Australia and his native Canada, and he has prepared independent reports in criminal cases involving so-called ‘repressed memories,’ as well as family reports and critiques in Family Law and Child Protection matters.

Dr. Gee’s university work includes research on disability and rehabilitation, chronic disease self-management and recovery from brain damage.

His personal research has largely focused on understanding the way people manage daily life, particularly divorced and separated parents.

Dr. Gee’s practice has fallen largely into these areas, where he balances a scientist-practitioner approach to counselling with the need to understand and engage each client on his or her own terms.

Family Law Express would like to thank Professor Ian R. Coyle of Bond University, Deakin University, Southern Queensland University and La Trobe University, for his editorial assistance during the drafting, proof-reading and review process on the transcript for the interview questions and responses.

expert Interview series: Dr Travis Gee

In short: Should Children Be Interviewed for Family Reports?

1. In producing a family report, the family consultant usually speaks to all significant parties involved in the case including the child/ren. How does such process likely affect the emotional well being of a child? Is it necessary for the child/ren to be included in such process? [Read the Transcript]

In short: How do Psychologists view the legal definition of family violence?

2. Family violence is defined in the Family Law Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”- how does the psychology industry view such definition? Is this a conventional explanation of family violence that must be applied in a family report, if applicable in the circumstances of the case? [Read the Transcript]

2a. Have you experienced the repercussions of this in your professional work?  [Soon to be Published]

In Short: How do Psychologists reconcile Shared Parenting & the potential Risks of Family Violence?

3. Some advocates suggest that there is a connection between a greater risk of violence and abuse, mostly to children, when 50/50 share care is supported by the Courts. How would the psychology industry address this alleged problem in the recommendations made via the family report? [Read the Transcript]

3a. Let’s assume a science-based practitioner for the moment, recognizing that this will provide the most defensible report. What practicalities would flow from adopting such an approach? [Soon to be Published]

In Short: How do Psychologists reconcile the potential risks of transient tensions and disputes typically experienced by separating couples, and genuinely entrenched conflict that can lead to seriously threatening Family Violence?

4. The 2011 amendments to the Family Law Act have created an in-built presumption that any form of historical family abuse, regardless of its nature or form, severity, duration or in some cases regardless of it even objectively occurring, is nevertheless all that is required to rebut the presumption of equal shared parental responsibility (s61DA) by the Court, and as a result can potentially cease contact between one of the parents and the child/ren.

However, the Australian Institute of Family Studies has concluded that 55% of mothers and 50% of fathers who had reported some form of historical emotionally abuse by their ex-partners presented as co-operative and friendly during interview.

However, in situations where parties had current safety concerns for the child and for themselves, there was a tendency that the alleged party will be reported as abusive or violent [Kaspiew et al., 2009].

This produces issues in assessing arrangements for child/ren in such circumstances and in producing a appropriate family report.

What are the psychological explanations behind such tendency to be acted by a parent who wants custody of his/her child? In your view how could these instances be mitigated and still put the child’s interest paramount in the family report?  [Soon to be Published]

In Short: Do Psychologists experience complications in balancing out the two primary considerations in the act of a child’s best interests and the requirement for regular contact with both parents?

5. The “best interest of a child” is a paramount consideration for the courts when making parenting orders. Such a notion has been expounded as a child’s regular contact with both parents in time of separation. [Soon to be Published]

Is there any psychological impact such explanation has on a child and possibly to the completion of a fair family report? If so, how could this be seen as a factor that hinders the bona-fide notion of a “child’s best interest?”

6. How should the “child’s best interest” defined and be applied in a family report?  [Soon to be Published]

In Short: In cases where there was no previous in-tact family, do Psychologists place the same weight on a child’s rights to meaningful contact with both parents, when such contact didn’t  exist prior to the separation?

7. In a context of a short-term relationship between the parents, how should custody of a child be assessed and how should the “best interest of a child” be defined and applied in this specific context? For a child’s well being, isn’t it necessary for a child to be able to build relationship to both his/her parents?  [Read the Transcript]

In Short: How precisely do family reports gain insights into a family dynamic given the remarkably short time available for observation and interviews?

8. As a psychologist, what are the apt methodologies of completing a family report and not obstructing the development of justice for all parties involve? [Read the Transcript]

In Short: Do you have suggestions on how to more accurately capture the reality of a family dynamic via the family report?

9. How do you think a completion of a Family Report beneficial in assessing the best interest of a child? Should this process be changed? If so, how would you change such process?  [Read the Transcript]

10. Do you think that the implementation of  your ideas would require a great deal of political support, and legislation?  [Read the Transcript]

Unacceptable Risk: Standard of Proof in Determining Child Abuse in Family Law

Manisharaj Kaur Pannu

Manisharaj Kaur Pannu

Online Legal Information Author at Family Law Express
I am currently studying a Bachelor of Commerce (Accounting)/Laws degree at the University of Queensland. As my academic, professional and personal experiences have solidified my interest in commercial law, I am keen on pursuing a career in a commercial law firm that values excellence, diversity, and corporate citizenship.On a personal note, I am concerned by the diminishing access to the legal justice system facing our community, and wish to play a part in the efforts of ensuring that all Australians have equal access to the law to protect and enforce their legal rights.
Manisharaj Kaur Pannu

unacceptable-risk-scales-of-justiceCases involving child abuse are amongst the most difficult cases faced by courts dealing with Family Law matters.

They are equally difficult – both from an emotional and evidentiary perspective for the parties involved.

The nature of child abuse in a family context – the fact that the perpetrator is often a family member, the child is young and hence more impressionable, less aware and less accurate in their recollection of events, and the lack of corroborating evidence due to the secrecy of the abusive act – makes such cases difficult to prove. 1 , 2

However, it is is irrefutable that abuse – either past abuse or future risk of abuse, carries severe consequences for a child.

For this very reason, it is imperative that the law develops an approach to cater to the evidentiary difficulties involved in child abuse cases to ensure that children are free from abuse or risk of abuse.

Abuse is not confined to physical or sexual abuse alone. It encompasses psychological abuse and serious neglect. This is made clear in section 4(1) of the Family Law Act 1975 (Cth) that provides a definition of abuse in relation to a child.

The Family Law Act 1975 (Cth) also makes clear that in family law proceedings involving children, the paramount consideration is the best interests of the child.3 Under s60CG(1)(b) of the Family Law Act 1975 (Cth), the court must, consistent with the child’s best interest, ensure that any order ‘does not expose a person to an unacceptable risk of family violence.’ This approach reflects that taken by the High Court of Australia in one of the more influential cases dealing with family law matters, M v M4

A. The ‘Unacceptable Risk’ Test In M v M

The High Court in M v M concluded that the test to be applied in making parenting orders is that ‘a court would not grant custody (now commonly termed residence or ‘lives with’) or access (now commonly termed contact) to a parent if that custody or access will expose the child to an unacceptable risk of sexual abuse.’ 5 The judgment helpfully provides the process in which this is to be determined.

Firstly, it is not necessary for a court to make a positive finding of child abuse. 6

In fact, the High Court cautioned against courts doing so. The High Court rightfully emphasised that a family law matter involving children is to be conducted as a proceeding that is directed at the risk to the child, as opposed to a criminal trial of the alleged abuser.

This is because the Family Court is not under the same duty to resolve an allegation of child abuse as a court exercising criminal jurisdiction in a trial. 7

The paramount consideration is always the best interests of the child. 8

Secondly, as a corollary to the first point, if the court does indeed make a positive finding of child abuse, such a finding must satisfy the civil standard of proof (ie balance of probabilities), with due regard to the factors mentioned in Briginshaw v Briginshaw9 and 10

This standard is lower than the criminal standard of proof, which is beyond reasonable doubt. Balance of probabilities requires that it is more probable than not that the alleged event occurred.

unacceptable-risk-standard-of-proof-in-child-abuse-family-law-cases

Briginshaw v Briginshaw is authority for the fact that the civil standard of proof (balance of probabilities) is not a fixed standard. The standard of proof has to cater to the seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding.

Depending on the nature of the allegation, the strength of the evidence required to meet the civil standard of proof may vary. The more serious the offence and gravity of the consequences, the more likely it is that the civil standard of proof cannot be satisfied by mere circumstantial or uncorroborated evidence.

Thirdly, if a positive allegation of sexual abuse has not been made out according to the civil standard, it does not follow that that conclusion is determinative of the child’s best interests 11

The fundamental issue remains the protection of the child from ‘unacceptable risk’ of abuse. ‘Risk’ of abuse essentially requires a court to assess possible future risk of abuse – hence it does not require a definitive finding that past abuse has in fact occurred.

From the evidence available, a court is required to assess the magnitude, nature and the degree of risk of abuse and the harm that may result if the abuse does occur 12.

The court then has to determine if the risk of abuse is ‘unacceptable’ such that it would justify denying access or custody to a parent. The test of unacceptable risk attempts to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child of parental access. 13. However, the best interests of the child remain paramount.

B. Advantages Of The ‘Unacceptable Risk of Child Abuse’ Test

The advantage of the test of ‘unacceptable risk’ is that it caters to the nature and degree of the risk – hence it can adapt to the circumstances of a particular case and the type of evidence available.

Should the test employ terms such as ‘substantial’, ‘serious’ or ‘real’risk, these words seem to suggest a more fixed threshold. 14

The test further concentrates on the welfare of the child, consistent with the requirements of the Family Law Act rather than determining whether the alleged abuser is in fact guilty of past abuse. 15.

C. Disadvantages Of  The ‘Unacceptable Risk of Child Abuse’ Test

The main criticism directed at the test is that as it allows a court to consider unproven allegations of past abuse which in turn affect the assessment of future risk of abuse. This process is at odds with the traditional premise of legal reasoning.

This type of legal reasoning ultimately provides a platform for false allegations of child abuse to be used to legally justify the removal of contact rights or parental responsibilities from one of the parents, usually the father.

Many family law court litigants fear that unproven, unlikely and possibly irrational child abuse allegations can be used to justify cessation of contact with the victim parent’s children, not because of the veracity of the allegations, but because of their magnitude.

As retiring Family Court Judge, Justice David Collier recently lamented in a news article:

“Once an allegation has been made it is impossible to ignore. The court must deem whether there is an ”unacceptable risk” of abuse occurring in the father’s care.”

“Sometimes the allegations are obviously fabricated, other times they are probably true.”

”It’s that grey area in the middle that you lose sleep over at night, and you do lose sleep,” 16.

Legal decisions ought to be made on the basis of proven facts as opposed to a ‘crystal ball’ exercise based on mere on suspicion and unproven facts. 17 and 18

Furthermore, the test also offers little certainty in outcome. This is because it effectively requires an assessment of future risks and balancing of the risk of detriment to the child from abuse and the possibility of benefit to the child of parental access.

Hence, it has to be accepted that the adjudication of these cases can produce different outcomes depending on how the evidence is evaluated and the interplay of subjective considerations. 19

Conclusion

Despite criticisms of the ‘unacceptable risk’ test, the judgment of the High Court in M v M is binding upon all lower courts in Australia. 20

The test certainly does cater to the requirement of section 60CA Family Law Act 1975 (Cth) that a child best interest is to remain the paramount consideration.

What is required is further development on the principles emerging from the test in a way consistent with the judgment of the High Court and the best interest of the child. This would offer further guidance to lower courts and parties involved in understanding and applying the test.

Related Family Law Judgments

  1. Stephen Page, The Family Court And Child Abuse. 
  2. Matthew Myers, Towards a safer and more consistent approach to allegations of child sexual abuse in Family Law Proceedings – Expert Panels and Guidelines. 
  3. s60CAFamily Law Act 1975 (Cth)
  4. M v M (1988) 82 ALR 577
  5. M v M(1988) 82 ALR 577, 583.
  6. M v M (1988) 82 ALR 577
  7. M v M (1988) 82 ALR 577
  8. s60CA Family Law Act 1975 (Cth).
  9. Briginshaw v Briginshaw  (1938) 60 CLR 336 at 362
  10. M v M (1988) 82 ALR 577
  11. M v M (1988) 82 ALR 577, 588
  12. M v M (1988) 82 ALR 577, 588
  13. M v M (1988) 82 ALR 577, 583
  14. John Fogarty, ‘Unacceptable risk — A return to basics’ (2006) 20(3) Australian Journal of Family Law 249
  15. Patrick Parkinson, ‘Family Law and Parent – Child Contact : assessing the risk of sexual abuse,’ Paper presented at the Third National Family Court Conference, Melbourne 21 October 1998. 
  16. False abuse claims are the new court weapon, retiring judge says.</a>
  17. Patrick Parkinson, ‘Family Law and Parent – Child Contact : assessing the risk of sexual abuse’ – Paper presented at the Third National Family Court Conference, Melbourne 21 October 1998.
  18. John Fogarty, ‘Unacceptable risk — A return to basics’ (2006) 20(3) Australian Journal of Family Law 249.
  19. John Fogarty, ‘Unacceptable risk — A return to basics’ (2006) 20(3) Australian Journal of Family Law 249
  20. John Fogarty, ‘Unacceptable risk — A return to basics’ (2006) 20(3) Australian Journal of Family Law 249