Upholding children’s rights in the family law system: Are we doing enough?
The United Nations Convention on the Rights of the Child recognises the right of children and young people to express views in all matters affecting them and have those views be given ‘due weight’, including in judicial and administrative proceedings (Article 12). Yet research has found that within the Australian family law context, children and young people do not feel that their right to participate in decisions affecting them is sufficiently supported.
Concerningly, the failure to facilitate children’s participation in family law proceedings can result in harm (for example, the making of unsafe and/or inappropriate parenting orders). Conversely, research has found that facilitating participation may be protective and affirming and can also promote children’s autonomy and agency, resulting in better outcomes for children and young people.
Child-focused practice in family dispute resolution is a given – at least in Government-funded family dispute resolution services. Child-focused practice brings the practitioner’s understanding of child-development to the FDR environment, supporting parents to consider the respective needs of each of their children within the decision-making process. The use of child inclusive practice in Family Dispute Resolution, in which the views of the child/ren are actually incorporated in the process through the involvement of a specialist child consultant, is however, not specifically funded and is therefore not universally offered.
To what extent does the family law system uphold the rights of children and young people? How can we enable children and young people to participate in family law decisions meaningfully and safely?
Dr Rae Kaspiew leads the research programs at the Australian Institute of Family Studies that focus on systems and services. She is a socio-legal researcher with particular expertise in research on complex issues that cause challenges for families. She has been involved in an extensive range of studies and is the lead author of two large scale evaluations of successive waves of reforms in family law (the 2006 and 2012 reforms). She led the team that completed the National Elder Abuse Prevalence Study in 2021 and the Compliance with and Enforcement of Family Law Parenting Orders Project in 2022. She contributed to the Evaluations of the Lawyer-assisted Family Law Property Mediation: Legal Aid Commission Trial and the Small Claims Property Pilots that were published in 2022. Themes included her work include the extent to which systems and services meet the needs of people affected by elder abuse and family violence.
In 2021, the Attorney General appointed Rae to her third term on Family Law Council, a body that provides expert policy advice on family law. Rae was on the organising committee for the 2022 National Elder Abuse Conference. She was also on the expert advisory group for the Australian Law Reform Commission’s reference on safeguarding the right of older Australians, April 2016-May 2017.
Rae was also a member of the Violence Against Women Advisory Group (2009-2011) that advised the federal Minister for the Status of Women on the implementation of the National Plan to Reduce Violence against Women. She is also on the editorial board of the Australian Journal of Family Law.
Chris Collett is the First Assistant Secretary, Children and Families at the Commonwealth Attorney-General’s Department. His Division is responsible for a range of policy, legislation, programs and strategies that put children, families and older people at the centre of achieving a just and secure society. His responsibilities include the Family Law system and the Family Relationships Services Program, family safety, coercive control and elder abuse policy and programs. This includes the National Plan to Respond to the Abuse of Older Australians and the Department’s contributions to the National Plan to End Violence against Women and Children. Chris is also responsible for oversight of the National Strategy for to Prevent and Respond to Child Sexual Abuse and the National Office for Child Safety.
From 2018 to 2022 Chris was Deputy CEO at AUSTRAC, Australia’s financial intelligence agency. He has previously held a range of senior executive positions in the Attorney-General’s Department, the Department of Home Affairs and the Department of Employment, across civil justice, criminal justice, emergency management, and corporate areas. Prior to joining the Australian Public Service, Chris worked in state government and non-government organisations. He holds a Master of Arts, a Bachelor degree and post-graduate diploma in psychology.
The Honourable John Faulks was appointed as a judge of the Family Court of Australia in 1994, and Deputy Chief Justice of the Family Court in 2004. His many contributions to the court included oversight of the Magellan project, an interagency collaborative model of case management developed to deal with Family Court cases involving serious allegations of physical and sexual child abuse. John was also instrumental in the development of the Less Adversarial Trial process, and the initiative to address the needs of self-representing litigants within the Family Court. He retired from the Family Court in 2016, after 22 years of service.
He was appointed as a member of the Family Law Council in December 2021. In October 2017 he was appointed as a part-time ALRC Commissioner to assist in the Review of the Family Law System.
Prior to judicial appointment, John was in private practice for 26 years, as a barrister and solicitor. He has been President of the ACT Law Society, President of the Law Council of Australia, and Chair of the Family Law Council.
John is an Adjunct Professor at the University of Canberra, and an occasional lecturer at his alma mater, the Australian National University. He is also currently a mediator, and Chair of the National Centre for Australian Children’s Literature.
Dr Georgina Dimopoulos is a socio-legal researcher and an Australian lawyer who has worked across the higher education sector, government, courts, commercial legal practice and community organisations. She is experienced in legal and policy evaluation, and doctrinal, qualitative and empirical research, in the areas of family law, children’s rights, privacy and family violence. She is a Senior Lecturer in Law and a Research Associate, Centre for Children and Young People at Southern Cross University. She is also a member of the Policy Working Group of the Australian Child Rights Taskforce. Her book, Decisional Privacy and the Rights of the Child (Routledge, 2022), presents a new model for enabling and listening to children’s voices in decision-making processes. She holds a PhD from Melbourne Law School, University of Melbourne.
Megan Solomon is a psychologist and Couple and Family therapist, with over 25 years’ experience in clinical practice, senior management, supervision and training in services managing the intersection of child protection, domestic violence, suicidal, mental health and family law issues. As Practice Lead of Counselling programs and practice models at Uniting, she oversees therapeutic approaches of the Keeping Contact (Parenting Orders Program), the Anchor (Supporting children after separation program), and Family Law Counselling programs. She intentionally promotes a whole of family, child inclusive and relationship-focused lens for complex family law cases.