Children want greater say in Family Court cases

children's viewsChildren in court cases involving family disputes are in danger of going unheard because they are rarely given the chance to speak to judges directly, new research shows.

A survey of 44 Family Court judges showed only six had ever met with children face-to-face to hear their views.

University of South Australia law lecturer Michelle Fernando carried out the research and says it complements previous studies which show children are not satisfied with the standard Family Court procedures.

Dr Fernando has recommended changes to the way courts hear evidence from children, but says many judges feel they lack the expertise to interpret children’s statements.

She says face-to-face meetings between children and family court judges are common in New Zealand and Australia should consider adopting that approach.

“Judges definitely have discretion to speak with a child, and judges do do that from time to time, but it’s incredibly rare,” she said.

“The Family Court is compelled by the legislation to take children’s views into account, so there’s no doubt that children’s views are heard.

“But what we have is a lot on information from children who say that they’re unhappy with the way that their views are currently heard and they want to have more of a say in the decision that’s being made, which of course is going to affect their lives.

“Children feel that the way that their views are currently heard are not good enough, and that they feel their views are perhaps not being taken seriously, or they’re worried that they’re being filtered through a third person.”

Dr Fernando concedes some judges are reluctant to change.

“They felt they didn’t have the correct skills and training that were necessary to speak to a child and properly interpret the child’s views,” she said.

“Also, judicial officers were very worried that if they speak to children, the child’s parents might pressure them or manipulate the child and put the child in a very difficult position.

“The majority of judges who responded to my survey believed that guidelines might help – guidelines that explained the purpose of a meeting with a child and how they might conduct it.

“The vast majority were also in favour of training being provided to judges in order to get better understanding of how to meet with children and what children say.”

Dr Fernando says the fact that children feel detached from the decision making process means the system needs to change.

“The model that I encourage judges to adopt is to have a family consultant who’s a child welfare expert to be present during the meeting,” she said.

“That person can assist with the questioning but also discuss with the judge… if they believe that the child might be pressured.”

Dr Fernando says such meetings are not just symbolic.

“Children have said that they have a particular interest in speaking to the person who makes the decision,” she said.

“They want to be heard, but they understand that it is the judge who makes the decision and not the child.

“What they’re saying is they want to ensure that their views have been heard by the decision maker without filtering, and they think that this will result in better decisions being made.”

Family law courts chase $1.4m in fees

family-court-of-australiaThe family law courts are chasing more than $1.4 million in unpaid fees amid criticism that increases introduced by the federal government in January are putting pressure on families.

The administration cost of chasing the debt, which includes unpaid daily hearing fees of up to $765 a day after the first day, means some money is likely to be written off.

Richard Foster, chief executive of the Family Court and the Federal Circuit Court (formerly the Federal Magistrates Court), the latter of which hears most cases, said he had issued letters to people involved in more than 632 matters asking for about $380,000 in fees to be paid.

”Whilst at this stage the total amount of outstanding fees is still being investigated, initial estimates are in the vicinity of $1.4 million since changes to setting down and hearing fees were introduced in 2010. While the amount is not inconsiderable, it is only a small percentage of the $54 million in fees the Family Court and Federal Circuit collect annually,” he said.

Fees in the courts have increased considerably since 2010 and new fees were introduced in January this year, including $1205 for an application for leave to appeal and $350 for a conciliation conference.

Adoption law reforms desperately needed

Australian adoption lawsTHE revelation that federal Labor senator Jacinta Collins gave up her baby when she was 19 provided an insight into how adoption can be a positive fruit of an unplanned pregnancy.

That Jacinta’s 30-year-old son was able to attend her swearing-in as the Minister for Mental Health and Ageing last month, as outlined in the Weekend Australian, was particularly touching.

Nonetheless, the sad fact remains that in Australia today, our adoption laws have become among the worst in the developed world.

For Australian families wanting to adopt a child the road is incredibly long. In 2011-12 there were only 333 adoptions in Australia: 149 of these were overseas adoptions, 129 were “known’ adoptions (when the adoption formalises a pre-existing parental relationship) and only 55 were local adoptions. This number has fallen from 1494 in 1987, so there has been a 78 per cent drop in the numbers of adoptions in Australia over the past 25 years.

Even though adoption rates are at an all-time low, there are significant numbers of Australian families wishing to adopt.

The current waiting list for inter-country adoption can be anything between three to five years and costs may be as high as $30,000.

For local adoption, waiting times can be just as long and riddled with red tape.

Australia now has the second-lowest adoption rate in the developed world and, with an average five-year period for adoption approval, the waiting times are now the longest they have been in Australian history.

At the same time there are almost 40,000 children in out-of-home care. That’s almost 40,000 children who could benefit from a loving, secure and stable family situation with adoptive parents.

Making matters worse, last month 27 Australian families were heartbroken when they discovered their quest to adopt an Ethiopian child had been abruptly ended by the Federal Government’s decision to close the inter-country adoption program to Ethiopia.

But you won’t hear about Australia’s appallingly inefficient adoption laws from our politicians as they rush to outdo each other on policies to improve access to childcare and paid parental leave for middle-class Australia.

It may not be a hot election issue but Australia is in desperate need of adoption law reform.

Australia now has the second-lowest adoption rate in the developed world…

With infertility affecting one in six Australian women, and with IVF often a difficult, exhausting and ultimately unsuccessful process, a more streamlined and effective adoption process would provide an alternative for families desperate to raise children.

ANOTHER consequence of our adoption laws is that adoption is not currently a viable alternative to abortion.

Because the adoption process is so complex and time-consuming, a pregnant woman wishing to have the baby but unwilling to raise that child is often propelled to have an abortion. This compares with other countries where a woman wanting to adopt out her baby can easily do so.

Just like IVF should not be the only route for infertile women, abortion should not be the first, or only, option for Australian women facing a difficult or unplanned pregnancy.

That is why I am proud to be on the research committee of Women’s Forum Australia, which this month is launching its campaign to increase access to adoption in Australia.

It’s clear that further research is needed to identify the barriers towards adoption in Australia.

Women’s Forum Australia is beginning this work by conducting a research project and education campaign looking into this – the vital first step in lobbying for adoption law reform.

We can have an Australia where the adoption process is more efficient and readily available – we just need enough of us to care.

Dr Joanna Howe is a lecturer in law at the University of Adelaide, a former NSW Rhodes Scholar and on the research committee of Women’s Forum Australia.

High divorce rate means it’s time for ‘wedleases’

marriage-leaseWe all know that far too many marriages end in divorce, yet this institution does not adapt. Indeed, many people today want to expand conventional marriage to include same-sex couples.

So why is there no effort to improve the legal structure of marriage, when it shows itself to be deficient?

Marriage is a legal partnership that lasts a lifetime – one lifetime to be exact, that of the first of the spouses to die. Generally speaking, that is a long time for any partnership. People, circumstances and all sorts of other things change. The compatibility of any two people over decades may decline with these changes to the point of extinction.

Why don’t we borrow from real estate and create a marital lease? Instead of wedlock, a “wedlease.”

Here’s how a marital lease could work: Two people commit themselves to marriage for a period of years – one year, five years, 10 years, whatever term suits them. The marital lease could be renewed at the end of the term however many times a couple likes. It could end up lasting a lifetime if the relationship is good and worth continuing. But if the relationship is bad, the couple could go their separate ways at the end of the term. The messiness of divorce is avoided and the end can be as simple as vacating a rental unit.

A marital lease could describe the property of the spouses in detail, so separate ownership is clear. If a couple wishes to buy something together, or share ownership, they can keep a schedule of these items and decide as they go along how these would be disposed of in the event of a partner’s death or if they do not renew their wedlease. Landlords and tenants have proved the effectiveness of making clear their separate property and its disposition at the end of property leases.

If the couple has a child, there could be an option to have the lease automatically continue until the child reaches the age of majority. Of course, relationships change with family additions and an extended term may not be feasible. But considering the number of children born out of wedlock these days, would it not be better for parents to at least commit to a wedlease, even if it doesn’t last a lifetime?

A wedlease could also imitate a real-estate lease through the use of security deposits. Each spouse could deposit a sum of money with an independent third party to ensure compliance with the wedlease. A further step could be to authorise the third party to arbitrate disputes between the spouses.

Our society has become comfortable with premarital and postnuptial contracts. The marital lease would be similar, except that it addresses the reality that the marital relationship between two people often does not last a lifetime.

When a college noticed that students did not use footpath around a courtyard but cut across the lawn for efficiency, administrators decided to move the footpaths rather than continuing to post signs to “Keep off the grass” that people ignored. Similarly, why doesn’t society make the legal structure of marriage more congruent to our behaviour? A wedlease may be a practical improvement to an institution whose success, today, is something of a coin toss.