According to commissioner Helen Connolly, children involved in the family law system commonly report feeling left out, overlooked and removed from legal decisions made about their family situation.
The findings form part of Connolly’s recent submission to the Australian Law Reform Commission’s review of the family law system.
Connolly conducted consultations across regional South Australia, where she spoke to children and young people aged six to 20-years-old about their experience in the family law system.
She said children “overwhelmingly” expressed their desire to have their views incorporated into the issuing of parenting orders.
“The system has been slow to change to reflect the importance of including the voices of children and young people in any decisions that are made about them,” Connolly said.
“In 1990, Australia ratified the UN Convention of the Rights of the Child, which gives rights to children that include having a right to participate in processes that affect their own life.
“Unfortunately this right to participate is not actively promoted in systems including the family law system.”
Connolly said the most common view expressed by children and young people was their desire to have more information about legal decisions passed on to them quickly.
“I think there’s a bit of an assumption that if it’s not talked about with kids perhaps they won’t know necessarily what’s going on, but kids are saying that they know when things aren’t right, they know when things go into this legal process and they want to have information given to them as quickly as possible,” she said.
“We really do need to have a far more conscious look at the way we engage kids in this whole legal process.
“They’re not passive bystanders – it’s about them and their lives and therefore they need to have active involvement in it.”
During the commissioner’s consultations, children expressed their desire to have a representative or support worker present throughout the legal process to advocate on their behalf.
They also reported wanting a greater connection with the judge overseeing the court process.
“The children felt that parents had their lawyers but there was no one really available just for them,” Connolly said.
“They are very interested in having a relationship with the judge because they said that’s really the person who’s making the ultimate decision and that’s the person who they thought they should be able to talk to and who should talk to them.”
Connolly said jurisdictions around the world – including New Zealand and the UK – were currently trialling new strategies to better connect children to the judge sitting on their family case.
“That might be that they meet with the kids, that they speak to them,” she said.
“In some places they put a photo of the child on the bench in front of them so that they’re really conscious of who the child is – that it’s not just a child but it’s a person that they can relate to.
“Other judges write orders specifically to children explaining why decisions have been made.”
The number of children and young people in South Australia who are affected by parental separation is unknown, as the Australian Bureau of Statistics does not collect information on children whose parents never married or who are separated but not divorced.
“This is a serious concern as a court’s primary consideration is in the best interests of the child,” Connolly’s submission states.
“The courts should be recording data in relation to children and young people so they are able to provide the adequate resources and supports for children and young people undergoing a Family Court process.”
The Australian Law Reform Commission’s review into the family law system, announced in March this year, is the first independent review into the system since the inception of the Family Law Act in 1975.
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