Should children have a voice in Family Law custody cases?

Over the last few weeks, people have perked up when they meet me and ask what I do.   Family Law in Australia is suddenly interesting (well - at least news or gossipworthy) and it seems everyone has an opinion.

Since the 'Italian sisters' gained a reprieve and are able to stay in Australia at least until the High Court sits in August, a new development has emerged...

A suggestion...an argument... that children should be able to have their voices heard in Court.

How are children's wishes currently heard in custody cases?

Currently our family law system operates so that children are interviewed by an experienced psychologist or social worker, in child appropriate languages and concepts to try to ascertain their level of maturity and any wishes they might express. 

This is then conveyed to the Court either directly or through an Independent Children's Lawyer, normally via what is referred to as a 'Family Report'.  In some custody cases a Child Consultant employed by the Court comes into Court and speaks to the Judge.

Dr Michelle Fernando (University of South Australia) surveyed Family Law Judges and Federal Magistrates and concluded very few meet children whose custody they are deciding.

Does this lead to children feeling "helpless, unheard and powerless"?

Article 12.2 of the United Nations Convention on the Rights of the Child states:

"the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body consistent with the procedural rules of national law."

I have never been involved in a custody case where a Judge or Federal Magistrate has met the children.

This is usually the role of the Independent Children's Lawyer (ICL) or a professional they appoint to meet with the children.  

Independent Children's Lawyers

The Family Court has set out guidelines for ICLs to follow.  Interestingly they note: 

"The way in which the ICL acts may not always meet with the approval of the parties or the child, but this does not mean that the ICL has failed in his/her professional responsibilities."

Importantly:

"The ICL does not take instructions from the child but is required to ensure the Court is fully informed of the child's views, in an admissible form where possible."  (my emphasis)

Significantly the guidelines also state:

"Despite the inability to guarantee the child a confidential relationship, the ICL should, however, strive to establish a relationship of trust and respect. This is assisted by explaining the role of the ICL, including:

       how the child can have a say and make his/her views known during the process;

       that where a child of sufficient maturity wishes to have a direct representative who will act on the child's instructions, the ICL should inform the child of the possibility of applying to become a party to the proceedings;" (my emphasis)

The guidelines also provide that:

"The ICL is to ensure that any views expressed by the child are fully put before the Court and so far as possible, are in admissible form. This includes views that the ICL may consider trivial but the child considers important.

The ICL is to also arrange for evidence to be before the Court as to how the child would feel if the Court did not reach a conclusion which accorded with the child's wishes."

However The ICL is permitted to make submissions contrary to the child's wishes "If the ICL considers that the evidence indicates that the best interests of the child will be promoted by orders which are contrary to the child's views."

The future

On 25 May 2012 the Federal Attorney-General announced a review into "whether Independent Children’s Lawyers are effective when representing children in family law cases". The timing cannot be purely coincidental...

Alternatives to custody battles

Custody does not have to be a war fought in the court system.  Not everyone can work out their parenting arrangements around the kitchen table.  But there are options to help people who want a civil, respectful resolution which protects their children and ensures that their voices are heard.

To find out more about collaborative law and other ways to work out custody and finances without going to court, contact me.

International Child Abduction

Unless you have not been online, seen a TV or read a newspaper this week, you would be aware of the case of the ‘Garning’ family.

The purpose of this post is not to argue the rights or wrongs of either side of the argument, but to explain in simple terms the legal aspects of the case.

Australia is a signatory to the Hague Convention on International Child Abduction (the Hague Convention).  The convention has a mandatory requirement that if a child is removed to or retained in a convention country, without the consent of the other parent, then the child must be returned to the country they were living in before the removal or retention.

Australia does not enter into a convention arrangement with signatories to the Hague Convention until satisfied that the other signatory has appropriate domestic laws to deal with ‘custody’ cases.   Currently there are 8 signatories Australia does not yet have arrangements with – one of those is Singapore.  Here is a list of the countries we have the convention in force with.   Note that Malaysia is not one of them.  Hence Jacqueline Gillespie (now Pascarl) was not able to use the convention to force the return of her children when they were abducted by their Malaysian Prince father.

There are some limited exceptions to the mandatory return requirement.   It is a hard hurdle to overcome.  It is designed to prevent child abduction and ensure that parents use the courts of the country they are living in, to determine ‘custody’ issues.

In the Garning case, it has been said that the Australian Government helped the Mother and 4 children flee from Italy.  The judgment simply does not support that contention.   The Mother tendered hundreds of pages of documents from the Department of Foreign Affairs and Trade (DFAT).   The court was satisfied that the documents show that DFAT assisted the Mother to confirm the children’s Australian citizenship and obtain passports, but made it clear that she needed the Father’s consent to take the children from Italy.   This was no cloak and dagger operation by the government to smuggle them out of the country.

Where the Mother’s case really fell down was here:

She said the Father consented to the children moving permanently to Australia and that he later simply changed his mind.

She said she had a witness who was a very dear friend who would give evidence that she witnessed him sign the passports and say that the children could go.

However, there was no affidavit produced of that witness – at the hearing or the Appeal.

The Mother also gave a media interview after she moved to the Sunshine Coast.  In that interview she described how she had told the Father they were going on a holiday only, so that she could get out of the country.

The weight of evidence stacked up against her.

There are circumstances where children’s wishes can be taken into account.   The Garning children were interviewed by an independent report writer and their views placed before the Court.  Those views were not found to be sufficient to justify them remaining in Australia.    It is important to note that in domestic family law cases, children’s wishes do not determine the issue – they are only one of a range of factors the court takes into account.

The next avenue of appeal is for Ms Garning to seek leave to appeal to the High Court of Australia.  There is no automatic ‘right’ to an appeal to the High Court – the court has to be satisfied that the matter is important and significant enough for them to hear it.   There are a lot of knockbacks.

Unless she is successful, the children will have to return to Italy (note: to Italy, not to the Father...) and the Italian courts will determine the appropriate arrangements for them.

Facebook or Face facts?

The advent of social media has added a new element to 'custody' disputes in family law courts in Australia and - judging by articles from commentators in other countries - in many other regions.

As this article discusses, the value of so called 'evidence' gathered from Facebook is questionable. And for those who think it is a good idea to get a friend to friend your ex on Facebook to gather sordid details to put before the court - this is generally not going to win you brownie points.

Why?

Well, for the same reason that the court doesn't have much sympathy for a spouse who claims that their ex must be earning more than they say they are from the (former) family business because "we always took cash under the table when we were together."

Or the person who claims an asset it only worth $500,000 yet their statement of position to the bank when they applied for a loan declared it at $3million...

When parties cannot agree on what is best for their children or how they should divide their property, unfortunately the court has to decide for them.

If it comes to that stage, if you and your ex disagree about facts, you want to have real evidence to prove it. As a judge of the Family Court used to say to clients when he was a barrister "if you want something in life you have to tender the right currency - and the currency of the Court is 'evidence'."

I have a very simple analogy I use to explain this:

If you say the cow is brown and he says it is black and white, the only way to prove to the judge what colour the cow is (short of bringing it to court - which would not 'moo-ve' the judge in the right direction!) is to produce a photo of the cow that you both agree is the cow. The judge can then see the colour of the cow.

If you don't produce a photo of the cow, then it is your ex's word against yours.

You may think that you have a strong case but beware - your case is at its strongest before you step into the witness box to be cross examined by your ex's lawyer (who can be best described as a pit bull hoping to tear your case to shreds. If you think it will be a walk in the park, ask a room full of lawyers how many of THEM would like to be cross examined!)

If you have at any stage stretched the truth, elaborated a little or acted less than honestly, be assured your ex's lawyer will latch onto that (even if it is irrelevant to the issue being decided) to try to persuade the court that you are 'less than truthful' and therefore if it is your word against your ex's, to believe your ex.

The title of this blog is 'Brisbane Collaborative Law' for a reason: because there is a way to resolve disputes without the stress and warfare that litigation often generates.

But if you are unfortunate enough to already be embroiled in litigation, remember that honesty is valued by the court.

When IVF ends up in Court

Currently there is a case before the Family Court concerning a millionaire businessman who donated sperm to a former girlfriend to enable her to conceive a child.

The dispute surrounds whether or not the father should have "access" to the child.

The case is awaiting final hearing.  In the interim period, it is reported that the child will see his father for two hours, twice per week.

This case reminds me of one I had in my pre-collaborative days.   A male couple agreed to assist a female couple to conceive a child and sperm was donated by one of the males.   Unfortunately, the relationships between parties broke down.  My client came to me wanting to take her son overseas to see family, but was unable to do so without the sperm donor's permission as he was listed on the birth certificate. Litigation was commenced...

I can't help but wonder how these two cases might have had difference outcomes if a collaborative process was adopted.

In both instances, the donors and mothers were friends (hence the donation!)   As a result of their dispute, any hope of friendship is likely lost.   The child may be faced with acrimony between the mother and the donor for years to come (let's face it - litigation rarely fosters better relationships between parties....)

Had they engaged in a collaborative process, they could have approached this in a way that was respectful to each other and worked towards the best outcome for all of them - first and foremost, the child.

Perhaps a child specialist, working as part of the collaborative team, in private, could have been the one to tell the parties of the psychological damage the child could suffer and help them work towards a solution, rather than that evidence being aired in a courtroom and reported for the world to read.

Perhaps they might all still be friends - or at least have a co-operative or civil relationship....

13 things kids want parents to know after separation

1. We need to know you love us, will protect us, and won’t leave us.
2. Help us get organized for going back and forth. Be patient.
3. Listen to our questions and opinions even if you don’t agree.
4. Accept that we need a lot of time to adjust, even when we don’t show it.
5. Keep you conflicts and dislike of each other out of sight and earshot.
6. Keep us out of the middle of your problems. We are just kids.
7. Don’t ask us to spy, pass messages, or listen to you put-down the other parent.
8. Give us a chance to talk with kids who are also going through this.
9. Help us express our feelings and learn how to manage them.
10. Give us space and time to grieve the loss of our old life at our own pace.
11. Confide in people your own age. We are not your substitute spouse.
12. Tell us we aren’t at fault for your problems. We can’t fix them either.
13. Show us its OK to love and want to be with both of you.

Copyright: Isolina Ricci, Ph.D. Exerpted from “Divorce from the Kids’ Point of View” NCFR Report, December 2007.

We recommend Isolina Ricci’s website and books "Mom’s House, Dad’s House" and "Mom’s House Dad’s House for Kids".

Divorce or Separation - Collaboration vs Litigation

	Collaborative	Litigation
Who controls the process	You and your spouse control the process and make final decisions	Judge controls the process and makes final decisions
Degree of Adversity	You and your spouse pledge mutual respect and openness.   You agree not to fight	Court process is based on an adversarial system
Cost	Costs are manageable, usually less expensive than litigation; team model is financially efficient in use of experts	Costs are unpredictable and can escalate rapidly including frequency of post-judgement litigation
Timetable	You and your spouse create the timetable	Judge sets the timetable; often delays given crowded court.  Can be delays in receiving judgment even after your case is tried
Use of Outside Experts	Jointly retained specialists provide information and guidance helping you and your spouse develop informed, mutually beneficial solutions, based on what is best for your family	Separate experts are hired to support the litigants’ positions, often at great expense to each
Involvement of Lawyers	Your lawyers work toward a mutually created settlement	Lawyers fight to win, but someone loses
Privacy	The process, discussion and negotiation details are kept private	Dispute becomes a matter of public record and, sometimes, media attention.  Even if names are removed sometimes it can be easy to tell who it is because of the facts of the case
Facilitation of Communication	Team of Collaborative Practice specialists educate and assist you and your spouse on how to effectively communicate with each other	No process designed to facilitate communication
Voluntary vs Mandatory	Voluntary	Mandatory if no agreement
Lines of Communication	You and your spouse communicate directly with the assistance of members of your team	You and your spouse negotiate through your lawyers
Court Involvement	Outside court	Court based

What is Collaborative Law?

The primary purpose of Collaborative Practice or Collaborative Divorce is to offer you and your former spouse or partner a respectful divorce or separation -  A Divorce with Dignity. If you have children, a respectful divorce is more likely to result in you having a better ongoing parenting relationship.

You receive support, guidance, advice and protection from your own independent lawyers. 
A fundamental requirement of Collaborative Law is that if you cannot reach an out of court settlement, the lawyers who have acted in the Collaborative process cannot go to court with you.

As a result, lawyers engaged in Collaborative Divorce are motivated solely towards helping you achieve a fair, out of court settlement that is right for you and your family.

Click here to view a short presentation on the benefits of Collaborative Law...
International Academy of Collaborative Professionals