You’ve been preparing your family law parenting matter alongside your legal team for weeks on end. A diligent Solicitor would have gone through your affidavit and annexures with a fine tooth comb and prepared submissions supported by well-established case law. Usually; the opposing team has undertaken the same task. Ultimately; the Court is presented with opposing views and is called on to make a decision.
Instead; the Court refers the parties to attend a Child Inclusive Conference with a Family Consultant or a Family Report interview and adjourns the matter pending the release of a Memorandum or Family Report.
The purpose of the Conferences
The people conducting the conferences and interviews are typically therapists, counsellors or psychologists with experience in parenting matters and are deemed to be “experts” by the Family Court. The contents of their Memorandum or Family Report assists the Court in determining the care and spend time arrangements would be in the children’s best interests.
What is a Child Inclusive Conference?
Pursuant to section 11F of the Family Law Act; the Court may direct parties to attend an appointment with a Family Consultant (and where appropriate order that one of the parties make arrangement for the child/ren to attend also). Lawyers cannot be present during these conferences. Neither party is required to pay for the Conference.
The Family Consultant will make a preliminary and limited assessment of the issues in dispute with recommendations to assist the court to make interim orders in the matter.
The Judicial Officer may direct the Family Consultant on the issues that require assessment and the resulting Memorandum to the Court (which cannot be shared outside the court proceedings without the courts’ permission) will detail the Consultant’s recommendations including need for therapy; whether interim time should be supervised and whether either or both parties need to attend a particular parenting/behavioural course.
What is a Family Report?
As the matter progresses; the court will require a more comprehensive assessment of the situation.
Pursuant to section 62(g) of the Family Law Act; the Court may order a report where the care, welfare and development of a child is relevant to the proceedings.
Again, the Judicial Officer may direct the Consultant to consider certain issues during their interviews with the parties and child/ren.
The Consultant will be at liberty to interview not only the parents but also; if deemed necessary; other significant and involved people in the matter; including grandparents and step-siblings.
The costs involved for the commissioning of the Family Law Report would be usually borne by the parties equally (unless in circumstances of financial disparity between the parties).
The Family Consultant must ascertain and include the views of the child in the Family Report unless it is inappropriate considering the child’s age, maturity or some other special circumstance.
The Family Report will be comprehensive in that it may canvass a range of issues; including but not limited to:
- the nature of the child’s relationship with each parent and other significant adults (for example grandparents and new partners)
- The likely effect that any change in circumstances may have on the child (for example moving away from their home, school, or significantly changing their spend time arrangements with their parents);
- The practical difficulty of the child spending time with either parent (for example the duration of their drive to the changeover location; the impact of constantly transitioning between both parties home and the effects this would have on the child’s health and education);
- Any risks to the child (for example being subject to or witnessing family violence).
The parenting capacity of each party will be assessed by the Family Consultant and conclusions will be drawn having regard the following:
- The attitude that each parent exhibits towards the child and their willingness to bear the numerous responsibilities of parenthood;
- The capacity of each parent to provide for the child’s physical, intellectual and emotional needs and;
- The readiness of each parent to encourage and facilitate a continuing relationship between the child and other parent (for example; their ability to refrain from denigrating the other parent or allowing others to denigrate the other parent in the presence of the child).
How impartial are the Family Consultants?
The Family Court has published a number of very helpful factsheets on the purpose and processes leading to Child Inclusive Conference and Family Law Report Interviews.
The resulting Memorandum and Family Report is only one resource available to the Court in determining the arrangements that would be most suited to the child’s interests and the Court must consider the evidence and submissions presented by the opposing parties and ICL (where appointed).
In circumstances where a party does not agree with the Family Consultant; they may be requested to attend the Final Hearing for cross examination. Bear in mind that at least 14 days’ notice must be provided to the Consultant. Pursuant to rule 15.04 of the Family Law Rules 2004, the Consultant may be cross examined on any such point canvassed in the report including assessment of the issues and parenting capacity of a party; the conclusions they’ve drawn with regards to the nature of the relationship between the parent and child and any such recommendations made by the Consultant.
With respect to the degree of impartiality; the reality is that all individuals; including Judicial Officers and court appointed “experts” have inherent biases that can sometimes inevitably cloud their assessments of matters. Ask a host of experienced family lawyer about a given Family Consultant; and you’ll find that there is usually majority agreement about whether they are “pro-dad” or “pro-mum”. In some rare examples; lawyers can agree that particular Consultants are “more or less impartial”.
The March 2019 Australian Law Reform Commission Inquiry into the Family Law System called on the Federal Government to amend the Family Law Act to clarify and expand the functions of the Family Consultants (including attending to post-order case management duties such as explaining to the parties the effects of the orders and the ability to relist the matter in court in the event of contraventions) as well as recommending that the Attorney General’s Department should develop a mandatory national accreditation scheme for private family law report writers.
Currently Counsellors, Psychologists and Psychiatrists interested in becoming Family Law Report writers can simply undertake training program involving four modules with the Association of Family and Conciliation Courts. Unfortunately; there is currently little oversight as to the quality and competence of these report writers. Whilst the Family Court retains a list of its in-house Family Law Report writers; there is no control over privately appointed Family Law Report writers.