Audio Recordings as Evidence in Family Court Proceedings

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

audio-recording-device-telephoneIn admitting any evidence in Court parties must remain mindful that through doing so they are seeking to persuade the Court of a particular fact. More specifically, there are three key issues that parties should consider before producing evidence.

  • Firstly, parties should consider how to present to the Court evidence of the fact that they are claiming.
  • Secondly and very importantly, parties need to consider whether the evidence is admissible, that is permitted, as evidence in the relevant proceeding.
  • And thirdly, parties should consider the weight and importance of the evidence and its possible implications for the Court’s final decision. 1

Strict statutory rules and well established case law exist to govern the form and use of evidence in proceedings. Recent times have seen increased debate surrounding the use of audio recordings in court proceedings, and particularly, in Family Court proceedings. The key issue with the use of audio recordings in Family Court proceedings is not necessarily their use, but how such recordings were obtained which in turn determines their admissibility as evidence.

The letter of the law: RE audio recordings

Whilst exceptions exist in both State and Federal legislation, the principal rule is that a party must consent to being recorded by a listening or surveillance device. Without such consent, audio recordings are considered to be prima facie illegal, thus rendering the publishing of those recordings illegal, as seen in the recent Family Court case of Huffman v Gorman 2

The legislative basis behind the ruling in Huffman v Gorman and other such decisions lies in the Commonwealth Surveillance Devices Act 2004 as well as in the related statutes of States and Territories3

Such legislation purposed towards the protection of privacy and the facilitation of a cohesive scheme for controlling privacy infringements, prohibits the installation, use and maintenance of listening devices to record private conversations, both to which the person is and is not a party4

In addition, the communication or publication of private conversations, or recordings of private activities, is prohibited5 A lack of consent from other parties to record private conversations classifies the conversations as protected information6 and unauthorised recording as illegal and punishable as a criminal offence.

Exclusionary Provisions: Exceptions to the prohibition of unauthorised recording of private dealings

The above however, is not to say that audio recordings are always illegal and thus completely inadmissible as evidence in Family Court proceedings. Exceptions to the prohibition on recording, communicating and publishing private conversations do exist, but such exceptions, importantly, are limited. The Commonwealth Surveillance Devices Act 2004 and its corresponding State and Territory statutes permit the recording, communication and publication of private conversations in circumstances where all principle parties consent to such, either expressly or impliedly7.

In a situation where only one principal party consents to recording it must be shown that doing so was reasonably necessary for the protection of their lawful interests8. The then communication of such recordings is only acceptable when a party is rationally required to do so to prevent or reduce an imminent risk of serious violence towards a person or threat of substantial damage to property9.

The Commonwealth Evidence Act 1995 builds on this, allowing illegally or improperly audio recordings to be admitted as evidence only when the desirability of its admission outweighs the undesirability of how it was obtained10

Such an issue was raised in the case ofLatham v Latham11, where the benefits of recordings framing the mother as a serious child abuser were seen to outweigh the way they were obtained. A similar position was taken in Tripp v Tripp in which the value of an improperly obtained recording of an interview with a single expert witness prevailed over the circumstance of its recording 12

On the contrary however, there have been a number of recent cases where parties, believing that the benefit of information in audio recordings outweighs their illegitimate obtainment, have presented audio recordings which have been dismissed or have worked against them. In the 2011 case of Hazan v Elias13 a fathers recording of his conversation with a family consultant was held to be inadmissible under the Evidence Act 1995.

Furthermore, the 2012 case Farrelly v Kaling14, whilst circumstances were more severe in that some of the recordings presented were believed to be falsified, the recordings were held to reflect extremely poorly on the respondent father who presented them. It was held that the fathers’ recordings could not be relied upon15, and further, that such recordings raised a number of concerns and questions regarding the fathers’ character.

Whilst it is clear that exceptions to the prohibition of recording, communicating or publishing private and protected conversations exists,  R v Lee16 reminds us that first and foremost, the circumstances in which the initial recording took place will always be relevant to the determination of whether or not there was a reasonable necessity for doing so.

What will the Family Court consider when deciding the admissibility of audio recordings?

In addition to the aforementioned exceptions and considerations, the Evidence Act 1995 outlines the matters that a court may take into account in determining the admissibility of evidence. Among those relevant to family law proceedings, the Family Court may consider the probative value of the evidence17, that is, to what the effect of the evidence in proving a said fact.

The Family Court may also consider the importance of the evidence in relation to the proceeding18, the nature of the subject matter of the proceeding19, and the gravity of the impropriety20 in making the recording.

In relation to the impropriety of the recording the Family Court may consider whether or not it was deliberate or reckless21, whether or not another proceeding is likely to be taken in relation to the improper recording22, and the difficulty of obtaining evidence without the impropriety23 of the recording.

Opinion of Legal Practitioners Regarding Audio Recordings

Members of the legal profession have expressed views regarding the use of audio recording in Family Court proceedings both inside and outside the courtroom. Reflecting on the multitude of cases in which audio recordings are admitted as evidence, Federal Magistrate John Croker has asserted that the use of audio recordings in family law proceedings appears to have gathered support both from parties to proceedings and from their legal representatives24

Despite such support, the use of audio recordings, to Magistrate Croker, arises too frequently and raises serious questions about the behaviour and character of the party who records and presents such evidence25

In a similar vein Senior Counsel Graeme Page attributes little worth to the presentation of audio recordings in court but gives credence to their use by lawyers prior to court proceedings in establishing the nature of events and those involved 26

Other practitioners, rather than expressing strong support or opposition to the use of audio recordings advise that they be approached with caution and that anyone contemplating their use strongly consider the relevant law and its implications27

It should be stressed that these laws are not static and changes are always a possibility.

For instance, the surveillance laws in South Australia may soon drastically change given the Surveillance Devices Bill before the South Australian parliament.

The South Australian Attorney General has stated that the changes to the laws were meant to “stop ordinary citizens bugging” each other and would not apply to recordings of public forums such as speeches, council meetings or Parliament. But, they would apply to private discussions where someone was recorded without consent. 28

This highlights the importance for any parties contemplating the use of audio recordings in Family Court proceedings, to ensure they consult their legal practitioner or a relevant legal body first.

Recent Related News: Secret Phone Recordings Justified to Protect “Legitimate Lawful Interest”

Download Presentation (PPTX)

  1. Australian Law Reform Commission, Uniform Evidence Law, ALRC  Report 102, 2006.
  2. Huffman v Gorman 2014 FamCA 150, at 42.
  3. Listening Devices Act 1991 (TAS); Surveillance Devices Act 1998 (WA); Surveillance Devices Act 1999 (VIC); Surveillance Devices Act 2007 (NSW); Surveillance Devices Act 2007 (NT); Crimes (Surveillance Devices) Act 2010 (ACT); and Surveillance Devices Act 2012 (SA).
  4. Listening Devices Act 1991 (TAS) s 5(1); Surveillance Devices Act 1998 (WA) s 5(1); Surveillance Devices Act 1999 (VIC) s 6(1); Surveillance Devices Act 2007 (NSW) s 7(1); Surveillance Devices Act 2007 (NT) s 11(1); and Surveillance Devices Act 2012 (SA) s 4(1).
  5. Listening Devices Act 1991 (TAS) s 9(1); Surveillance Devices Act 1998 (WA) s 9(1); Surveillance Devices Act 1999 (VIC) s 11(1); Surveillance Devices Act 2007 (NSW) s 11(1); Surveillance Devices Act 2007 (NT) s 15(1); Crimes (Surveillance Devices) Act 2010 (ACT) s 34; and Surveillance Devices Act 2012 (SA) s 8(1).
  6. Surveillance Devices Act 2004 (Cth) s 44. 
  7. Listening Devices Act 1991 (TAS) s 5(3)(a); Surveillance Devices Act 1998 (WA) s 5(3)(c); Surveillance Devices Act 1999 (VIC) s 11(2)(a); Surveillance Devices Act 2007 (NSW) s 7(3)(a); Surveillance Devices Act 2007 (NT) s 15(2)(b)(i); and Surveillance Devices Act 2012 (SA) s 4(2)(a).
  8. Listening Devices Act 1991 (TAS) s 5(3)(b)(i); Surveillance Devices Act 1998 (WA) s 5(3)(d); Surveillance Devices Act 1999 (VIC) s 11(2)(b)(i); Surveillance Devices Act 2007 (NSW) s 7(3)(b)(i); Surveillance Devices Act 2007 (NT) s 15(2)(b)(ii); and Surveillance Devices Act 2012 (SA) s 4(2)(b)(ii).
  9. Surveillance Devices Act 2004 (Cth) s 45(4)(b); Listening Devices Act 1991 (TAS) s 5(2)(c)(i); Surveillance Devices Act 1998 (WA) s 9(2)(c); Surveillance Devices Act 2007 (NSW) s 11(2)(b)(i); andCrimes (Surveillance Devices) Act 2010 (ACT) s 34(6)(b).
  10. Evidence Act 1995 (Cth) s 138(1).
  11. Latham v Latham 2008 FamCA 877. 
  12. Tripp v Tripp 2010 FamCA 691.
  13. Hazan& Elias 2011 FamCA 376. 
  14. Farrelly v Kaling 2012 FMCAfam (26 April 2012). 
  15. Farelly, above n 13, at 225.
  16. R v Lee 2004 NSWCCA 82. 
  17. Evidence Act 1995 (Cth), s 138(3)(a).
  18. Ibid, s 138(3)(b).
  19. Ibid, s 138(3)(c).
  20. Ibid, s 138(3)(d).
  21. Ibid, s 138(3)(e).
  22. Ibid, s 138(3)(g).
  23. Ibid, s 138(3)(h).
  24. Federal Magistrate John Croker, in, Alexander, H. (4 February 2013) ‘Gotcha tapes disliked by court’, Sydney Morning Herald.
  25. Ibid.
  26. Ibid.
  27. See Streeter Law, (10 November 2010), ‘When is covert surveillance illegal and when does it serve a legitimate forensic purpose’, Streeter Law, available from <http://www.streeterlaw.com.au/family-law-cases-1/beware-of-illegal-covert-surveillance >
  28. Laws to restrict secret tapings could hit ordinary citizens <http://www.theaustralian.com.au/news/laws-to-restrict-secret-tapings-could-hit-ordinary-citizens/story-e6frg6n6-1226493178967>.

Independent Children’s Lawyers (ICL) & Australian Family Law

Karan Dayal

Karan Dayal

Online Legal Information Author at Family Law Express
I am currently in my second year of a Bachelor of Laws/Commerce (Majoring in International Business) at Macquarie University. Personally I take an interest in legal research and courtroom advocacy and participating in many law moots. Upon graduating I hope to enter the legal profession as a public prosecutor.
Karan Dayal

Latest posts by Karan Dayal (see all)

children-and-family-lawAn independent children’s lawyer (ICL) is a lawyer who advocates for the best interests and welfare of a child in relevant proceedings under the Family Law Act 1975 (Cth).

The Family Court will order that a child be represented by an ICL if the child’s best interests or welfare is of significant importance to the proceedings and it appears to the Family Court that the child’s interests ought to be independently represented by a lawyer1.

In the case of Re K Nicholson CJ, Fogarty and Baker JJ set out an extensive list of some circumstances which might call for the appointment of an ICL. Some of the examples they listed included:

  • –          Cases involving allegations of child abuse whether physical sexual or psychological;
  • –          Cases where there is an apparently intractable conflict between the parties;
  • –          Cases where the child is apparently alienated from one or both parents;
  • –          Cases where there are real issues of cultural or religious difference affecting the child;

Cases where the sexual preferences of either or both parents or some other person having significant contact with the child is likely to impinge on the child’s welfare…2

What is their role?

According to the Family Law Courts’ “Guidelines for Independent Children’s Lawyers”, the appointment of an ICL is one means of giving effect in family law proceedings to the United Nations Convention on the Rights of the Child, which states that:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”3

“Parties shall assure to the child who is capable of forming his or her 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.”4

In Australia, an Independent Children’s lawyer’s roles are broadly set out in section 68LA of the Family Law Act 1975 (Cth). This particular provision sets out the general natureof what ICLs must do and the specific duties they have.

General Nature of the Role of Independent Lawyers:

  • –          ICLs must form their own, independent view about the best interests of their client and they must act according to that view in any relevant proceedings.5
  • –          If the ICL sees that a particular course of action is in the best interests of their client they must make a submission to the court suggesting the adoption of that course of action.6
  • –          The ICL is not the child’s legal representative and is not obliged to act on the child’s instructions in relation to the proceedings.7 preceding the instalment of s 68LA in 2006 has clearly stated (consistent with current statute) that the ICL does not necessarily have to advance what the client “wants”8

The Specific Duties of the Independent Children’s lawyer:

  • –          The ICL must act impartially in dealings with parties to the proceedings.9 (Note: the appearance of bias may be tested by asking whether a “fair-minded observer might reasonably apprehend that the ICL might not bring an impartial or unprejudiced mind to the task of independently representing that child”10]).
  • –          The ICL must fully put any relevant views the child might have to the court.11
  • –          The ICL must analyse any report or document relating to the child that is used in the proceedings, and identify those matters which are most significant to the child’s best interests.12 They must then ensure that the court is made fully aware of those particular matters.13
  • –          The ICL must endeavour to minimise the trauma to the child associated with the proceedings.14
  • –          The ICL must “facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child”.15

In addition to these statutory provisions, a recent report from the Attorney General’s Department identified three overlapping functions in the ICL role: facilitating child participation, evidence gathering and litigation management (being an ‘honest broker’).16

Facilitating child participation

An ICL has the responsibility of facilitating the participation of children and young people in family law proceedings. This role arises from a number of articles within the United Nations Convention on the Rights of the Child (UNCRC), including article 9 which upholds a child’s right to participate in proceedings relevant to their care.  The ICL must ensure that the child’s views are heard and respected, and that the child is able to have an impact upon the outcome of any proceedings affecting them.

Evidence Gathering

ICLs also bear the responsibility of ensuring that the necessary evidence is obtained and put before the court. This role involves arranging subpoenas for documents or witnesses, conducting criminal history checks, gathering formation about personal protection order relevant to people involved with the child, and obtaining family reports or reports by single expert witnesses.

Litigation Management

ICLs must ensure that litigation is conducted in a child-focussed manner, that the settlement of a matter is encouraged when appropriate and that they themselves act as ‘honest brokers’ where necessary.

Who pays for them?

According to regulation 8.02 of the Family Law Rules 2004 (Cth) the court may:

  • –           Request for a relevant legal aid authority to arrange representation for the child; and
  • –           Order that the costs of an ICL be met by a party to the proceedings17.

The fees of an ICL are usually footed by the relevant Legal Aid State authority. Legal Aid New South Wales has determined that it will likely not cover matters where the total costs and disbursements exceed $18,00018. However, in exceptional circumstances arrangements may be made with the chief executive officer, Legal Aid NSW, for additional funding19.

Legal Aid NSW mandates that parties to the proceedings who are not in receipt of legal aid should contribute equally to the costs of the independent children’s lawyer. Any party not in receipt of legal aid will generally be required to pay their share of a basic composite fee totalling $3,300 (including GST) which covers the anticipated cost for work up to but not including the defended hearing of the matter20.

In addition to the basic composite amount, each party will be required to contribute in the same proportion to any additional costs of the independent children’s lawyer including on the final hearing (including counsel fees, if any)21.

Legal Aid NSW provides an approximate estimation of all the costs associated with ICL representation 22.

Do we really need them?

In considering this question it is vital to consider the emphasis that Australian courts place upon the welfare and best interests of any child involved in the proceedings. Several sections of the Family Law Act 1975 (Cth) require the court to regard the welfare (or interests) of a child involved in proceedings as the paramount consideration, including sections 60CA, 67L AND 67V.

Selby J further explained in Clarkson v Clarkson that in family law litigation the interests of the parties take second place and that “regard for the interests of the child is the determining factor”23.

In fact, the Best Practice Guidelines for Lawyers Doing Family Law Work encourages lawyers who act for a parent to explicitly clarify that the court approaches the matter from the viewpoint of what is best for the child, which can override the wishes of parent and/or child24. Because there is such a heavy emphasis on maintaining the child’s best interests and welfare it is evident that independent family lawyers are necessary.

SURVEY: Tell us about your experience with an Independent Children’s Lawyer (ICL)

  1. Family Law Act 1975 (Cth) s 68L(1)-(2) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68l.html
  2. Re K (1994)17 Fam LR 537, 538 http://www.tved.net.au/index.cfm?SimpleDisplay=PaperDisplay.cfm&PaperDisplay=http://www.tved.net.au/PublicPapers/November_2009,_Lawyers_Education_Channel,_The_Independent_Children_s_Lawyer.html
  3. United Nations Convention on the Rights of the Child art 3
  4. Ibid art 12.1
  5. Family Law Act 1975 (Cth) s 68LA(2). http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html
  6. Ibid (3). http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html
  7. Ibid(4). http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html Case law
  8. Separate Representative v JHE and GAW (1993) 16 Fam LR 485, 514
  9. Family Law Act 1975 (Cth) s 68LA(5)(a)http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html
  10. Kingley v Arndale (No 2) (2010) 255 FLR 326, [33
  11. Family Law Act 1975 (Cth) s 68LA (5)(b)http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html
  12. Ibid (5)(c)(i). http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html
  13. Ibid (5)(c)(ii). http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html
  14. Ibid (5)(d). http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html
  15. Ibid (5)(e). http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html
  16. Kaspiew et al, ‘Independent Children’s Lawyers Study Final report’ (Report, Australian Institute of Family Studies, May 2013) 164.   http://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyLawSystem/Documents/IndependentChildrensLawyersStudyReport-Publication.pdf
  17. Family Law Rules 2004 (Cth) reg 8.02(2). http://www.austlii.edu.au/au/legis/cth/consol_reg/flr2004163/s8.02.html
  18. Ibid
  19. Ibid
  20. Ibid
  21. Ibid
  22. Legal Aid NSW, Information for Independent Children’s Lawyers <http://www.legalaid.nsw.gov.au/for-lawyers/resources-and-tools/family-law/information-for-lawyers>
  23. Clarkson v Clarkson (1972) 19 FLR 112, 114
  24. Family Law Council and Family Law Section of the Law Council of Australia, Best practice Guidelines for Lawyers Doing Family Work (2nded, October 2010), pt 6 para 1.5. http://www.familylawsection.org.au/pages/content.asp?plid=23

Contravention of Court Orders or AVOs. What options do you have?

Ewa Zieba

Ewa Zieba

Online Legal Information Author at Family Law Express
Ewa is completing a Bachelor of Social Science and Laws at Macquarie University with a major in Anthropology. With experience at specialist family law firms and Women's Legal Services NSW, Ewa is pursuing a career specializing in family law. Special interest areas include the care and protection of children and alternate dispute resolution, with an aim to improve access and participation in parenting matters.
Ewa Zieba

contravention-of-court-orders-and-avoCourt Orders are the decisions or judgements of judicial officers, including Judges or Magistrates.

They can include an order made after a hearing by a judicial officer or an order made after parties have reached their own agreement and have applied to a court for consent orders.

Court Orders include Parenting Orders, Consent Orders and Financial Orders. Once an Order is made, each party affected by the Order must comply with it.

What to do in the event of a breach of Court Orders?

Attend family dispute resolution

Family dispute resolution can help you and the other party to work through your disagreement. This option is useful if parties feel that breaches of the order have occurred due to terms in the order that are unclear or not practical because of a change in circumstance. As both parties are involved in creating a solution the process can be collaborative with the outcome tailored to suit the needs of both parties. Parties can attend family dispute resolution before filing a court application and if an agreement is reached the parties can make a parenting plan or apply to the court for consent orders. This option is not suitable where there has been history of family violence in the domestic relationship.

Get legal advice

A lawyer can help you understand your legal rights and responsibilities under the order and advise you on the most appropriate step to take. Attaining the services of a lawyer may also assist in reaching an agreement without going to court. You can find legal advice at a legal aid office, community legal centre or a private firm.

Apply to a court

For Parenting Orders, apply to a court for a contravention order:

A court may only penalise an individual for breaching a parenting order if a party to the order files a contravention application alleging that the individual has failed to comply.If the court determines an individual has breached a parenting order, without reasonable excuse, it may impose a penalty. Depending upon the circumstances and the severity of the breach, a court may:

  • – Order attendance at a post separation parenting program
  • – Compensate for time lost with a child as a result of the breach
  • – Require the person to enter into a bond
  • – Order the individual in breach to pay all or some of the legal costs of the other parties
  • – Require the person to participate in community service
  • – Order that a fine be paid
  • – Order imprisonment
  • – Discharge, vary or suspend the order to allow a party to apply for a further order to alter the parenting order1

For Financial Orders, apply to a court for an enforcement hearing:

If you cannot reach an agreement you may consider applying for an enforcement hearing.The respondent will be cross-examined as to the state of their financial affairs and their ability to pay their financial obligations under the order. The process can be complex and you should seek legal advice before proceeding.

The outcome of the enforcement hearing may result in the court:

  • – Identifying the total amount owed
  • – Ordering the total amount owed to be paid in full or by instalments
  • – Ordering enforcement of the obligation
  • – Preventing the disposal of property or wasting of assets by the payer
  • – Suspending the enforcement of an obligation
  • – Making an order for costs

A respondent can be penalised for failing to comply if they fail to:

  • – Serve a financial statement
  • – Produce copies of a documents to the applicant
  • – Answer a question asked of them
  • – Give an answer to the Court’s satisfaction2

A refusal or failure to comply may amount to be a contempt of court or an offence.

Appehended Violence Order

What is an AVO?

An AVO is an apprehended violence order intended to protect individuals who are fearful of future violence or threats to their safety. These orders are sometimes referred to as restraining orders or protection orders and set out restrictions on the other person’s behaviour.

An Apprehended Domestic Violence Order is made where the people are related or have had a domestic relationship. An Apprehended Personal Violence Order is made where the people involved are not related or do not have a domestic relationship.

What to do in the event of a breach of an AVO?

If the defendant breaches the AVO you should report the breach to the police as soon as possible. The police have the power to arrest the defendant and charge them with the criminal offence of contravening the AVO (or breaching the AVO). Depending upon the circumstances the police may also choose to charge the individual with other criminal offences such as assault or malicious damage. The defendant will be issued a Court Attendance Notice and will be required to attend court to answer the criminal charges.3

Penalties for breach

Contravening an AVO is a criminal offence and if an individual is convicted it carries a maximum fine of $5,500 and/or 2 years imprisonment in NSW. 4

Penalties vary across the states and territories. Any conviction for a contravention of an AVO will appear on the individual’s criminal record.Depending upon the severity of the breach and whether other charges have been made the individual in breach may be put on bail or have bail refused and be kept in custody.

If your circumstances have changed and you no longer require the AVO, you must make an application to vary the AVO in order to prevent accidental breaches. However if there are children under the age of 16 named on the AVO only the police can make an application to vary its terms.

Related Family Law Judgments

More Information

Should Children Be Interviewed for Family Reports?

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

 

This is one response from the Expert Interview Series: Dr. Travis Gee. Refer to the table of contents for the whole series of questions posed to Psychologist Dr Travis Gee, on the topic of how Family Reports and the Psychology Industry in Family Law

  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?

family-reports-dr-travis-geeThis is something recently raised by Chief Justice Bryant 1, acknowledging the poor levels of contact between children and their supposed representatives in the court.

Looking specifically at the report writer, sometimes there may be 20 minutes or so contact, much as a psychiatric evaluation may take up to 90 minutes for the parents.

The paucity of what can be done in such a short time naturally leads parents to question how accurate the reports may be. Questions about accuracy necessarily raise questions about the validity of inferences drawn from such interviews.

To your question of how an interview may affect the child, it must be said that it will depend on a range of factors, not least of which is the presence or absence of alienation processes by a parent.

When an alienating parent targets the other parent and encourages false beliefs in the child in order to persuade the report writer (and others including the child) of things that are simply not true, the child’s reality testing processes can be strained.

Inculcation of false memories in children is not particularly difficult,2 and if the child adopts wholesale a fictional version of their relationship with the alienated parent, it can become a toxic subjective reality that may be held on to for life, costing him or her the benefit of a perfectly good parent.

In the words of lawyer Dr. Christopher Barden,“There can be no credible controversy about the power of parents to influence children.” 3

In the words of lawyer Dr. Christopher Barden,“There can be no credible controversy about the power of parents to influence children.”

If the child cannot quite come to believe it, there is room for the child’s reality testing to work, but then the child comes to see the alienating parent for what they are, and again,  a parent/child bond may be destroyed, sooner or later.

That is not to mention the deleterious effects of alienation across a range of areas of life including lower levels of achievement, less attainment of post-secondary education, greater unemployment, lower socio-economic status, attachment issues and consequent relationship issues and poorer self-esteem.4

The direct effect of the interview will also depend on the skill of the interviewer in eliciting information in a non-biased way. In other words, if the interviewer unwittingly plays into the hands of an alienating parent, leading questions may be used that may create or reaffirm objectively false subjective realities in the child (as noted above).

This is one reason that such interviews should always be recorded. Another reason is that a consultant who has an ethical obligation to ensure accurate recording can be held accountable, which will have the effect of ensuring that omission or misunderstanding of parts of the interview on the writer’s part can be corrected, either prior to finalisation of the report, or on cross-examination.

“The presence of an alienating parent needs to be factored in, to temper judgments about the value of that information”

Other effects may emerge from the failure of the consultant to fully inform the child that the results will be available to the Court and so, to the parents.  Parents may reasonably assume that the children were so apprised, and mention in passing conversation something that the child thought was a complete secret held by the consultant.

The feeling of having been ‘lied to’ (even by omission) in such a way may lead not only to disillusionment with the court process but a great sense of anxiety and personal responsibility for whatever deleterious outcomes may arise. This is especially true if the child has in fact repeated falsehoods supplied by an alienating parent, thinking that the target parent would not find out.

The need for children to be involved in the process diminishes as a function of their youth.  Children under about five years of age have more malleable memories that are more subject to re-constructive processes, leading questions, and alienation processes.

Memories are subject change every time they are recalled, and are sensitive to what is happening at the time, and the use of leading questions (even inadvertently) with younger children can produce misinformation that may be given unwarranted probative weight. As children get older, it becomes more reasonable to incorporate their evidence.

However, the most reliable evidence will not be historical factors about the he said/she said of the parents, but about their own internal states – their feelings and desires. Even then, however, the presence of an alienating parent needs to be factored in, to temper judgments about the value of that information.

  1. Children should have more say in family disputes, says top judge. Susie O’Brien, Herald Sun, 30/7/2014.
  2. Loftus, E., and Pickrell, JE (1995) The formation of false memories. Psychiatric Annals 25 (12) 720-725.
  3. Barden, R. C. (2006) Protecting the fundamental rights of children and families: Parental alienation syndrome and family law reform. In R. Gardner, R. Sauber, &  L. Lorandos. (Eds.), International handbook of parental alienation syndrome  (pp. 419-432). Springfield, IL:  Thomas.
  4. Ben-Ami, N., Baker, A. J. L. The long-term correlates of childhood exposure to parental alienation on adult self-sufficiency and well-being. American Journal of Family Therapy 40.2 (2012): 169-83.

How to Challenge a Child Support Assessment

Nicole Neal

Nicole Neal

Online Legal Information Author at Family Law Express
I am a fourth year law student studying through the University of Southern Queensland. I plan to practice within the area of family or criminal law. I am driven by three core values: reliability, integrity and dedication and am motivated by my passion towards my chosen field of study.
Nicole Neal

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child-support-calculatorA Child Support assessment is generally made when a child’s parents separate, providing the primary carer of the child/ren with sufficient income from the other parent in order to support and raise the child/ren.

The assessed sum for child support is the result of a calculation based on a number of factors, reflecting the familial, carer and financial circumstances at play, and this formula has been revised numerous times since its original implementation back in the 1970’s.

As of March 2014, the Abbott government has announced a new parliamentary inquiry into the child support system 1, with a particular emphasis on under or over payments, enforcement options for payments, flexibility for families, providing the best options for children in conflict situations, and links between the child support program and the Family Court. 2

Every new iteration of the child support formula aims to provide a better, fairer system that is in sync with the financial realities and broader expectations of society at that time, however significant complaints are ongoing with many parents claiming that the formula has become too complex and difficult to navigate, and many others complaining of significant inequities.3

The very nature of child support leaves itself exposed to tensions and complaints, given that it provides financial support for children in often very acrimonious circumstances.

An assessment can be challenged by both the parent that pays the amount to the sole guardian, as well as the guardian who receives the payment.

Who can challenge

As explained within the Child Support (Assessment) Act 1989 (Cth),only a person who has at least shared care of the child can challenge an assessment of Child Support. 4‘Shared care’ is described as providing a percentage of care of at least 35% 5 and is calculated depending on the number of nights per year the child is in the care of the person. 6 A person who has consent from either a parent or a legal guardian to care for the child would also be considered eligible. 7

Why challenge?

You may want to have a Child Support assessment reviewed if you believe that:

  • Incorrect information was used;
  • Not all the relevant facts were considered;
  • Relevant details have been overlooked or new information has become available;
  •  The appropriate law or policy was not applied correctly; or
  • Given the circumstances of the case, the wrong decision was made.

What can be challenged

Most Child Support decisions can be challenged; including the annual rate the carer is entitled to, the costs of each child and the taxable income of each parent. 8 However, the identity of the child/children’s parents and the collection process are two (2) decisions that cannot be disputed through this process.

Levels of review

Before formally applying for a challenge of the assessment, it is recommended that you call the Child Support Agency and discuss your concerns surrounding the payment. This may eliminate any lack of understanding and may present available options that you were unaware of.

1st Level

The initial formal application for challenge must be made to the Child Support Agency as a written application asking the Registrar of Child Support to evaluate the current situation. 9 The Registrar will allow the assessment to be changed if they are satisfied that it is in the best interests for the child, the payer and the payee to do so, and that it is necessary. 10 If the Registrar decides not to change the current assessment or if you are still not satisfied withthe changes made, an objection may be made to the Child Support Agency.

2nd Level

If the Agency refuses the objection, there are two further options available. The first is to apply for a review of how the decision was made according to the law through the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR)). Under this option, the court will review whether the applicable law was applied to the decision correctly and if the decision-maker used their power in the proper way. 11

The second option is to apply for a review of the decision based on the facts through the Social Security Appeals Tribunal (SSAT). 12 The application must be in writing, sent within 28 days of receiving the objection decision 13 and may be made by either parent.This level of review is inexpensive, quick and is is conducted by a party that is independent of the Registrar.

3rd Level

If you are still not satisfied with the decision reached by the SSAT, an application for further review by either the Family Court or the Federal Circuits Court may be made. 14 However, the appeal can only be made on a question of law (i.e. how the law or legal principles were applied or whether the process was legally correct NOT the facts of the case). Again, this must be lodged within 28 days of receiving the notice of the previous decision. 15

The court then has the power to make an order,which may set aside the decision of the SSAT, affirm the decision of the SSAT, or direct the case back to the SSAT to make a new decision. 16 The effect of the order handed down from the court then takes effect immediately. 17

From the Family Court, the matter can then be challenged through the Full Court of the Family Court and then through the High Court of Australia. If the decision was disputed within the Federal Circuit Court, it can then be taken to the Federal Court, followed by the Full Court of the Federal Court, and finally the High Court of Australia. Although, keep in mind that the fees for each challenge will dramatically increase with each application to a higher court.

Related Family Law News

Related Family Law Decisions

  1. Parliamentary Inquiry into the Child Support Program 
  2. Abbott government to launch inquiry into child support system 
  3. Child support formula baffles 90% of parents – study 
  4. Child Support (Assessment) Act 1989 (Cth) s 7B(1).
  5. Ibid s 5(2).
  6. Ibid s 54A(1).
  7. Ibid s 7B(2).
  8. Ibid s 80(1).
  9. Child Support (Assessment) Act 1989 (Cth) s 98B(1).
  10. Ibid s 98C(1), 117(1).
  11. Child Support (Registration and Collection) Act 1988 (Cth) s 89.  
  12. Child Support (Registration and Collection) Act 1988 (Cth) s 89.
  13. Ibid s 90(1).
  14. Child Support (Registration and Collection) Act 1988 (Cth) s 110B.
  15. Federal Circuit Court Rules 2001 (Cth) reg 25A.06.
  16. Child Support (Registration and Collection) Act 1988 (Cth) s 110F.
  17. Ibid s 110V.