Chapter 5
Separate representation of children
Introduction
5.1 Term of reference 9 requires the Committee to inquire into and report
on the following matter:
the capacity of the legal aid system, in the proposed funding
arrangements, to provide for separate representation of children where
such assistance is essential in the pursuit of justice.
5.2 In this chapter, the Committee considers the representation of children
in legal proceedings and, specifically, the impact on the legal aid system
of the decision of the Full Court of the Family Court of Australia in
Re K (1994) FLC 92-461.
Separate representation
5.3 A separate representative is a lawyer appointed by the Family Court
to represent a child's best interest in disputed proceedings conducted
in the family law jurisdiction. The Family Court jurisdiction, and hence
the appointment, is one which is entirely a Commonwealth responsibility.
5.4 The statutory basis for the separate representation of children is
found in s.68L of the Family Law Act 1975. Section 68L provides:
- (1) This section applies to proceedings under this Act in which a
child's best interests are, or a child's welfare is, the paramount,
or a relevant, consideration.
- (2) If it appears to the court that the child ought to be separately
represented, the court may order that the child is to be separately
represented, and may also make such other orders as it considers necessary
to secure that separate representation.
- (3) A court may make an order for separate representation:
- (a) on its own initiative; or
- (b) on the application of:
- (i) the child; or
- (ii) an organisation concerned with the welfare of children; or
- (iii) any other person.
5.5 The role of the separate representative was at first limited to proceedings
concerning custody, guardianship, maintenance or access. Amendments to
the Family Law Act in 1983 provide that an order pursuant to s.65, which
was replaced by s.68L, [1] could be made
in any proceedings in which the welfare of the child is relevant.
5.6 Section 68L allows the Family Court to make an order for the separate
representation of children in proceedings concerning the distribution
of matrimonial property, as well as in custody, guardianship, maintenance
or access proceedings. However the Family Court does not, as a rule, make
orders for separate representation of children in property proceedings.
If the court is concerned, for example, that a child has an unprotected
interest in proceedings for the adjustment of property, the child will
either become a party to the proceedings in its own right, or through
the appointment of a next friend.
5.7 Orders for the separate representation of children, are made by the
Family Court in circumstances where there are substantial issues affecting
the welfare of the child, which require that the child's interests be
represented.
Re K
5.8 In Re K (1994) FLC 92-461 the Full Court of the Family Court reviewed
the role and functions of a child's representative and set down important
guidelines concerning when the Family Court should order that a child
have separate representation.
The position before Re K
5.9 The Chief Justice of the Family Court of Australia, the Hon Alistair
Nicholson, told the Committee that the issue of separate representation
for child had been a matter of concern for some time before the decision
in Re K. His Honour advised:
The Family Law Council in 1989 had delivered a report to the
Attorney-General in which it had suggested a series of criteria for
the appointment of separate representatives and had suggested the creation
of something like an official solicitor, which is the English situation,
for representation of children in Family Court cases. None of those
recommendations were accepted by the government at the time, although
they were not specifically rejected; they simply sank, as far as one
can tell. The situation had reached the point where the court was becoming
criticised from a number of quarters for its inconsistent approach to
the appointment of separate representatives. We used the Family Law
Council's report as a basis for laying down guidelines in Re
K, but the guidelines were not train lines. The [Family
Law]Act gives no real directions as to how and when a separate representative
of a child is appointed, but one can assume, or I would have thought,
that the act intended that it should be appointed in circumstances where
it was proper and just that it should be done. All the court attempted
to do in Re K was to set out the sorts
of circumstances which would call for the appointment of a separate
representative. Another impetus that perhaps was affecting the court
and giving rise to the criticisms of the court was the ratification
of the United Nations Convention on the Rights of the
Child which provides specifically for the right of
children to be represented in all proceedings affecting their welfare.
[2]
The facts
5.10 Re K concerned the custody of a child. The husband and wife had
married in November 1988. The child was born in April 1990. In March 1992,
the husband and wife separated. In September 1992, under consent orders,
the wife obtained custody of the child. In December 1992 the wife was
shot dead, and the husband was subsequently charged with her murder.
5.11 In January 1993, a maternal aunt, who resided in the United States
of America, sought custody of the child. The child's paternal grandparents
and a paternal aunt, who resided in Australia, opposed the maternal aunt's
application, and sought custody themselves. The husband agreed that they
should have custody, at least until the conclusion of the criminal proceedings
against him.
5.12 In April 1993, by which time the child was three, a single judge
of the Family Court ordered that the maternal aunt have custody of the
child, and gave her leave to remove the child from Australia. The paternal
grandparents and paternal aunt appealed to the Full Court of the Family
Court.
5.13 The Commonwealth Attorney-General intervened. The judgment notes
that counsel for the Attorney-General argued that in this case separate
representation should be granted because:
- the maternal aunt wished to remove the child from the jurisdiction,
with the likely consequence that the child would cease to have contact
with the father; and
- of the relationship between and circumstances involving the parties.
5.14 The judgement in Re K also notes that counsel for the Attorney-General
submitted that there should be no fixed rules or criteria governing the
appointment of separate representatives.
The circumstances in which the court should appoint a separate representative
5.15 The Full Court held that an order for separate representation should
be made when the court considers that the child's interests require it.
In particular, having regard to the provisions of the United Nations Convention
on the Rights of the Child, a separate representative for a child should
normally be appointed in the following situations:
1. Cases involving allegations of child abuse whether physical, sexual
or psychological.
2. Where there is an apparently intractable conflict between the parents.
3. Where the child is apparently alienated from one or both parents.
4. Where there are real issues of cultural or religious difference
affecting the child.
5. Where the sexual preference of either or both of the parents or
some other person having significant contact with the child is likely
to impinge upon the child's welfare.
6. Where the conduct of either or both of the parents or some other
person having significant contact with the child is alleged to be anti-social
to the extent where it seriously impinges on the child's welfare.
7. Where there are issues of significant medical, psychiatric or psychological
illness or personality disorder in relation to either party or a child
or other person having significant contact with the children.
8. Any case in which, on the material filed by the parents, neither
seems a suitable custodian.
9. Any case in which a child of mature years is expressing strong views,
the giving of effect to which would involve changing a long standing
custodial arrangement or a complete denial of access to one parent.
10. Where one of the parties proposes that the child will either be
permanently removed from the jurisdiction or permanently removed to
such a place within the jurisdiction as to greatly restrict or, for
all practical purposes, exclude the other party from the possibility
of access to the child.
11. Cases where it is proposed to separate siblings.
12. Custody cases where none of the parties are legally represented.
13. Applications in the court's welfare jurisdiction relating in particular
to the medical treatment of children where the child's interests are
not adequately represented by one of the parties.
5.16 The Full Court added:
these guidelines are not intended to inhibit the discretion of
judges, judicial registrars or registrars but to give them some assistance
in the exercise of it. [3]
5.17 The Chief Justice of the Family Court of Australia, the Hon Alistair
Nicholson, observed in his evidence to the Committee that the guidelines
are "not train lines", and, as such, are intended to be applied
with flexibility and sensitivity. [4]
The result
5.18 The Full Court of the Family Court held that separate representation
was appropriate in Re K. However, the failure of the trial judge to make
such an order did not, in the particular circumstances, vitiate his orders
regarding custody. This was because a number of experts had given evidence
on critical aspects of the case. In addition, the three year old child
would not have been able to give coherent instructions to counsel. Accordingly,
the appeal was dismissed.
The relevance of international obligations to the decision
5.19 As noted, in Re K the court referred to the United Nations Convention
on the Rights of the Child. Paragraphs 1 and 2 of Article 9 of the Convention
state:
(1) State Parties shall ensure that a child shall not be separated
from his or her parents against their will, except when competent authorities
subject to judicial review determine, in accordance with applicable
law and procedures, that such separation is necessary for the best interests
of the child. Such determination may be necessary in a particular case
such as one involving abuse or neglect of the child by the parents,
or one where the parents are living separately and a decision must be
made as to the child's place of residence.
(2) In any proceedings pursuant to paragraph 1 of the present
article, all interested parties shall be given an opportunity to participate
in the proceedings and make their views known.
5.20 Article 12 of the Convention provides:
(1) State Parties shall assure to the child who is capable of
forming his or her own views the right to express those views freely
in all matters affecting the child, the views of the child being given
due weight in accordance with the age and maturity of the child.
(2) For this purpose, the child shall in particular be provided
with the opportunity to be heard in any judicial and administrative
proceedings affecting the child, either directly or through a representative
or an appropriate body, in a manner consistent with the procedural rules
of national law.
5.21 In Re K, the Full Court of the Family Court observed that, on one
view, these provisions require a child to have separate representation
in any custody or access proceeding, as is the case in New Zealand. [5]
However, the Court also noted an alternative view that separate representation
may not be necessary to comply with the Convention in this context. The
Court raised the possibility that to some extent compliance could be achieved
through a family report. The Court expressed no concluded view on this
issue. [6]
5.22 Therefore, while the guidelines set out in Re K are not necessarily
binding or inflexible, compliance with the guidelines may be necessary
for Australia to meet its international obligations.
Role and functions of the separate representative
5.23 The Family Law Act does not define the functions, rights, responsibilities,
obligations and duties of a separate representative. The role has been
developed and defined to some extent in the case law. The most recent
instance of this is P and P (1995) FLC 92-615, in which the Full Court
of the Family Court, when commenting on the role of the child's representative
said:
The separate representative ought:
1. Act in an independent and unfettered way in the best interests
of the child.
2. Act impartially, but if thought appropriate, make submissions
suggesting the adoption by the court of a particular course of action
if he or she considers that the adoption of such a course is in the
best interests of the child.
3. Inform the court by proper means of the children's wishes
in relation to any matter in the proceedings. In this regard, the separate
representative is not bound to make submissions on the instructions
of the child or otherwise but is bound to bring the child's expressed
wishes to the attention of the court.
4. Arrange for the collation of expert evidence and otherwise
ensure that all evidence relevant to the welfare of the child is before
the court.
5. Test by cross-examination where appropriate the evidence of
the parties and their witnesses.
6. Ensure that the views and attitudes brought to bear on the
issues before the court are drawn from the evidence and not from a personal
view or opinion of the case.
7. Minimise the trauma to the child associated with the proceedings.
8. Facilitate an agreed resolution to the proceedings.
Footnotes
[1] Section 68L was introduced by the Family
Law Reform Act 1995. It replaced s. 65 of the Family Law Act. Section
65 provided “Where, in any proceedings under this Act in which the
welfare of a child is relevant, it appears to the court that the child
ought to be separately represented, the court may, of its own motion,
or on the application of the child or of an organisation concerned with
the welfare of children or of any other person, order that the child be
separately represented, and the court may make such other orders as it
considers necessary for the purpose of securing such separate representation”.
[2] Evidence, The Family Court of Australia,
p. 626.
[3] (1994) FLC 92 aat 461.
[4] Evidence, The Family Court of Australia,
p. 626.
[5] The Committee heard evidence that, in New
Zealand, all children in Family Law cases are separately represented.
Such an approach, if adopted in Australia, would create significant additional
requirements for legal aid funding: Evidence, Justice Nicholson,
p. 267.
[6] (1994) FLC 92-461, para. 115.