Anstie, Lara, ‘Cross examination of victims of family and domestic violence by self-represented perpetrators in family law proceedings’ (2016) 43(4) Brief 38.
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Bailey, Alice, 'Separating safety from situational violence: Response to ‘Allegations of family violence and child abuse in family law children‘s proceedings‘' [2007] (77) Family Matters 26.
Behrens, J. & Bruce Smyth, Australian Family Court Decisions About Relocation: Parents’ Experience and Some Implications for Law and Policy. (2010) 38 Federal Law Review 1-20.
Booth, Tracey, Miranda Kaye, & Jane Wangmann. (2022). Addressing the problem of direct cross-examination in Australian family law proceedings. University of New South Wales Law Journal, 45(4), 1415–1448.
Bozin, Danielle, ‘The Hague Child Abduction Convention's Grave Risk of Harm Exception: Traversing the Tightrope and Maintaining Balance between Comity and the Best Interests of the Child’ (2016) 35(1) University of Tasmania Law Review 24-42, doi: 10.3316/INFORMIT.135379927197544
Bromfield, Leah, et al, ‘Issues for the Safety and Wellbeing of Children in Families with Multiple and Complex Problems: The Co-Occurrence of Domestic Violence, Parental Substance Misuse and Mental Health Problems’ (National Child Protection Clearinghouse Issues Paper No 33, Australian Institute of Family Studies, December 2010).
Bryant, Diana, ‘The Family Courts and Family Violence’ (Paper Presented at the Judicial Conference of Australia Colloquium, 9-11 October 2015).
Carson, R., et al., (2022). Compliance with and enforcement of family law parenting orders: Final Report, ANROWS.
Carson, R., Qu, L., Kaspiew, R., Stevens, E., Sakata, K., Horsfall, B. et al. (2022). Evaluation of the Lawyer-assisted Family Law Property Mediation: Legal Aid Commission Trial: Final Report. Melbourne: Australian Institute of Family Studies.
Carson, Rachel, Edward Dunstan, Jessie Dunstan and Dinika Roopani, Children and young people: Family law system experiences and needs - Final Report 2018 (Research Report – June 2018, Australian Institute of Family Studies).
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Chisholm, R & Fehlberg, B. (2022) The High Court and family law: The Hague child abduction cases. Australian Journal of Family law, 35: 39-67.
Chisholm, Richard, ‘The Sharing of Experts’ Reports Between the Child Protection System and the Family Law System’ (Canberra: Attorney-General’s Department, 2014).
Chisholm, Richard, ‘Information-sharing in Family Law & Child Protection: Enhancing Collaboration’ (Canberra: Attorney-General’s Department, 2013).
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Chisholm, Richard, ‘“Less adversarial” proceedings in children’s cases’ [2007] (77) Family Matters 28.
Coy, Maddy et al, Picking up the pieces: domestic violence and child contact (Rights of Women and CWASU, 2012).
Croucher, Rosalind, ‘Family Law: Challenges for Responding to Family Violence in a Federal System’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
De Maio, John, et al, ‘Survey of Recently Separated Parents: A study of parents who separated prior to the implementation of the Family Law Amendment (Family Violence and Other Matters) Act 2011’ (Commissioned Report, Australian Institute of Family Studies, 2013).
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Freeman, Marilyn and Nicola Taylor, ‘Domestic violence and child participation: contemporary challenges for the 1980 Hague Child Abduction Convention’ (2020) 42(2) Journal of Social Welfare and Family Law 154, (UK) doi: 10.1080/09649069.2020.1751938
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Jaffe, Peter G., Janet R. Johnston, Claire V. Crooks, Nicholas Bala, ‘Custody disputes involving allegations of Domestic violence: toward a differentiated approach to parenting plans’ (2008) 46(3) Family Court Review 500.
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Family Consultants are psychologists and/or social workers who specialise in child and family issues after separation and divorce, and are specifically appointed to the Federal Circuit and Family Court of Australia, or the Family Court of Western Australia. Save for external appointments under Reg 7 of the Family Law Regulations 1984, Family Consultants are co-located within the court premises: in the Federal Circuit and Family Court of Australia within the Court Childrens Services (Family Consultants in the FCFCA are known as Court Child Experts, as in addition to the role of family consultant, they can also undertake the role of family counsellor); and in the Family Court of Western Australia, within the Court Counselling and Consultancy Service.
With the introduction of the FCFCA Act and the FCFCA Rules, there is a new intended pathway for both parenting and property matters to pass through the FCFCA. This is outlined below:
1.
First Court Event;
2.
Interim Hearing;
3.
Dispute Resolution;
4.
Compliance and Readiness Hearing;
5.
Trial Management Hearing (if required);
6.
Trial.
In parenting matters, the Court may consider whether a report from a Family Consultant, social scientist, psychologist, psychiatrist or other appropriately qualified expert is necessary.
Depending on the facts and circumstances of the particular case, the court may order (pursuant to Section 62G FLA) that the parties to child-related proceedings take part in an assessment conducted by a Family Consultant. Some of the common assessments are set out below. Central to all of these assessments is screening for family violence and risk assessment. If the court is made aware that a party has any concerns about their safety when attending court, a safety plan at court will be put in place by the court for these appointments.
A Child Impact Report can be ordered by a registrar or judge. The Child Impact Report is prepared by a Court Child Expert. Child Impact Reports:
•
provide evidence for an interim hearing, including about risk
•
give a voice to the child at the early stage of proceedings
•
focus the parties on the impact the dispute is having on the child/ren
•
inform a dispute resolution event (e.g. parenting mediation)
There are usually two parts, a parent meeting and a child meeting which both take place with the Court Child Expert. The Court has the power to refer parties to Family Dispute Resolution (FDR) conferences under section 13C(1)(b) of the Family Law Act 1975 (Cth) and to ensure that parties are given the opportunity to participate in respectful, resolution focussed negotiations. The Court will only make orders for these conferences where it is safe and appropriate for all parties to participate meaningfully. Family Dispute Resolution can occur within the Court or externally. Court based Family Dispute Resolution Conferences can take place over a full day (9.00am to 4.00pm) or a half day (9.00am to 1.00pm) and will involve a Registrar (in the role of FDR practitioner) and may also involve a Court Child Expert (in the role of family counsellor ).
Case Assessment Conference: This is an assessment process provided by the Western Australian Court Counselling and Consultancy Service. It involves a meeting between a Family Consultant, the parties, their lawyers if any, and the Independent Children’s Lawyer if appointed. The primary purpose of the conference is risk assessment. A written report is provided to the court, each party and the Independent Children’s Lawyer if appointed. In the report, the Family Consultant may suggest information that is currently relevant but missing, as well as various case management and therapeutic options regarding the case.
A Family Report is prepared by a Family Consultant as ordered by the court (Section 62G FLA and Section 73 FCA. Based on their observations of the parties and/or their children, the Family Consultant considers the family circumstances, explores issues relevant to the case, and recommends to the court arrangements that will best meet the children’s future care, welfare and developmental needs. The best interests of the children (Section 60CC FLA and Section 66C FCA) are the main focus of the report. Where family violence is an issue, the Family Violence Best Practice Principles set out the range of matters the court may determine the Family Report to address. In all cases where a Family Report has been ordered, the court must formally release the report and only the parties and their lawyers can receive it unless the court gives permission for it to be shown to other people.
The purpose of the Family Report is not to make findings about disputed facts. The Family Consultant may however consider it appropriate to remark on the apparent veracity of allegations, for example about family violence, after having discussed the allegations with the alleged perpetrator, alleged victim or children. For example, the Family Consultant may wish to record any admissions, inconsistencies or other reflections made or disclosed by the parties in relation to the disputed facts.
Since the 2012 amendments to the FLA and the FCA, research by the Australian Institute of Family Studies affirms that Family Reports are an important source of independent, expert insight into family dynamics, and are more likely to be generated in cases involving allegations of family violence or child abuse. In particular, there is greater attention in Family Reports to considerations of issues of risk and safety than prior to the legislative reforms, though in nearly half the number of reports analysed there are no conclusions made in relation to risk.
The conduct of family assessments and development of family reports play a critical role in the decision-making process of judicial officers when dealing with family law parenting disputes. The Australian Standards launched in 2015 by the Chief Justice of the former Family Court of Australia, the Chief Judge of the Family Court of Western Australia and the Chief Judge of the former Federal Circuit Court of Australia, are designed to inform all those involved with family law of the standards expected of practitioners preparing Family Reports.
The Family Law Amendment Act 2023 (Cth) establishes a new Part IIIAA in the FLA which includes a power for government to make ‘regulations prescribing standards and requirements for family report writers’ (see section 11K FLA). The new provisions provide a framework for what family report writer regulations can cover, including expectations and duties of family report writers, compliance processes and oversight entities and consequences for non-compliance with a regulatory regime. Once regulations are developed, standards and requirements may be prescribed for all family report writers, or a class or classes of family report writers (section 11K(1) FLA). This may include family consultants and single expert witnesses who prepare a ‘designated family report’ (section 11J FLA).
While a Family Report is considered an expert report, it is part of a broader category of expert reports that deal with issues beyond those dealt with in a Family Report. An expert report (that is not Family Report) is ordered by the court where the expert evidence required to assist the resolution of the proceedings is beyond the expertise of a Family Consultant. For example, where there are mental health issues to be considered, the court may require that an expert opinion from a psychiatrist be obtained. Sometimes the Family Consultant will recommend that an expert opinion be obtained from an expert with particular expertise. For example, an addiction specialist may be required when dealing with parental substance misuse or the opinion of an expert maybe required where sexual offending is an issue. Chapter 7 of the FCFCA Rules deals with expert evidence. The purpose of this part is to ensure that there is a single expert appointed by the court who provides an expert report to the court, rather than allowing the parties to appoint their own expert.
A single expert may also be asked to prepare a report that follows a family assessment and is similar, or the same, in nature to a Family Report prepared by a Family Consultant. In these circumstances, a private practitioner may be jointly appointed by, or on behalf of both parties to the proceeding. The financial capacity of each party will assist the court to determine whether a Family Consultant is assigned to prepare a Family Report, or the parties are to pay for the services of a single expert witness (FCFCA Rules, rule 8.11(2)(c)).
Family Consultants are psychologists and/or social workers who specialise in child and family issues after separation and divorce, and are specifically appointed to the Federal Circuit and Family Court of Australia, or the Family Court of Western Australia. Save for external appointments under Reg 7 of the Family Law Regulations 1984, Family Consultants are co-located within the court premises: in the Federal Circuit and Family Court of Australia within the Court Childrens Services (Family Consultants in the FCFCA are known as Court Child Experts, as in addition to the role of family consultant, they can also undertake the role of family counsellor); and in the Family Court of Western Australia, within the Court Counselling and Consultancy Service.
With the introduction of the FCFCA Act and the FCFCA Rules, there is a new intended pathway for both parenting and property matters to pass through the FCFCA. This is outlined below:
1.
First Court Event;
2.
Interim Hearing;
3.
Dispute Resolution;
4.
Compliance and Readiness Hearing;
5.
Trial Management Hearing (if required);
6.
Trial.
In parenting matters, the Court may consider whether a report from a Family Consultant, social scientist, psychologist, psychiatrist or other appropriately qualified expert is necessary.
Depending on the facts and circumstances of the particular case, the court may order (pursuant to Section 62G FLA) that the parties to child-related proceedings take part in an assessment conducted by a Family Consultant. Some of the common assessments are set out below. Central to all of these assessments is screening for family violence and risk assessment. If the court is made aware that a party has any concerns about their safety when attending court, a safety plan at court will be put in place by the court for these appointments.
A Child Impact Report can be ordered by a registrar or judge. The Child Impact Report is prepared by a Court Child Expert. Child Impact Reports:
•
provide evidence for an interim hearing, including about risk
•
give a voice to the child at the early stage of proceedings
•
focus the parties on the impact the dispute is having on the child/ren
•
inform a dispute resolution event (e.g. parenting mediation)
There are usually two parts, a parent meeting and a child meeting which both take place with the Court Child Expert. The Court has the power to refer parties to Family Dispute Resolution (FDR) conferences under section 13C(1)(b) of the Family Law Act 1975 (Cth) and to ensure that parties are given the opportunity to participate in respectful, resolution focussed negotiations. The Court will only make orders for these conferences where it is safe and appropriate for all parties to participate meaningfully. Family Dispute Resolution can occur within the Court or externally. Court based Family Dispute Resolution Conferences can take place over a full day (9.00am to 4.00pm) or a half day (9.00am to 1.00pm) and will involve a Registrar (in the role of FDR practitioner) and may also involve a Court Child Expert (in the role of family counsellor ).
Case Assessment Conference: This is an assessment process provided by the Western Australian Court Counselling and Consultancy Service. It involves a meeting between a Family Consultant, the parties, their lawyers if any, and the Independent Children’s Lawyer if appointed. The primary purpose of the conference is risk assessment. A written report is provided to the court, each party and the Independent Children’s Lawyer if appointed. In the report, the Family Consultant may suggest information that is currently relevant but missing, as well as various case management and therapeutic options regarding the case.
A Family Report is prepared by a Family Consultant as ordered by the court (Section 62G FLA and Section 73 FCA. Based on their observations of the parties and/or their children, the Family Consultant considers the family circumstances, explores issues relevant to the case, and recommends to the court arrangements that will best meet the children’s future care, welfare and developmental needs. The best interests of the children (Section 60CC FLA and Section 66C FCA) are the main focus of the report. Where family violence is an issue, the Family Violence Best Practice Principles set out the range of matters the court may determine the Family Report to address. In all cases where a Family Report has been ordered, the court must formally release the report and only the parties and their lawyers can receive it unless the court gives permission for it to be shown to other people.
The purpose of the Family Report is not to make findings about disputed facts. The Family Consultant may however consider it appropriate to remark on the apparent veracity of allegations, for example about family violence, after having discussed the allegations with the alleged perpetrator, alleged victim or children. For example, the Family Consultant may wish to record any admissions, inconsistencies or other reflections made or disclosed by the parties in relation to the disputed facts.
Since the 2012 amendments to the FLA and the FCA, research by the Australian Institute of Family Studies affirms that Family Reports are an important source of independent, expert insight into family dynamics, and are more likely to be generated in cases involving allegations of family violence or child abuse. In particular, there is greater attention in Family Reports to considerations of issues of risk and safety than prior to the legislative reforms, though in nearly half the number of reports analysed there are no conclusions made in relation to risk.
The conduct of family assessments and development of family reports play a critical role in the decision-making process of judicial officers when dealing with family law parenting disputes. The Australian Standards launched in 2015 by the Chief Justice of the former Family Court of Australia, the Chief Judge of the Family Court of Western Australia and the Chief Judge of the former Federal Circuit Court of Australia, are designed to inform all those involved with family law of the standards expected of practitioners preparing Family Reports.
The Family Law Amendment Act 2023 (Cth) establishes a new Part IIIAA in the FLA which includes a power for government to make ‘regulations prescribing standards and requirements for family report writers’ (see section 11K FLA). The new provisions provide a framework for what family report writer regulations can cover, including expectations and duties of family report writers, compliance processes and oversight entities and consequences for non-compliance with a regulatory regime. Once regulations are developed, standards and requirements may be prescribed for all family report writers, or a class or classes of family report writers (section 11K(1) FLA). This may include family consultants and single expert witnesses who prepare a ‘designated family report’ (section 11J FLA).
While a Family Report is considered an expert report, it is part of a broader category of expert reports that deal with issues beyond those dealt with in a Family Report. An expert report (that is not Family Report) is ordered by the court where the expert evidence required to assist the resolution of the proceedings is beyond the expertise of a Family Consultant. For example, where there are mental health issues to be considered, the court may require that an expert opinion from a psychiatrist be obtained. Sometimes the Family Consultant will recommend that an expert opinion be obtained from an expert with particular expertise. For example, an addiction specialist may be required when dealing with parental substance misuse or the opinion of an expert maybe required where sexual offending is an issue. Chapter 7 of the FCFCA Rules deals with expert evidence. The purpose of this part is to ensure that there is a single expert appointed by the court who provides an expert report to the court, rather than allowing the parties to appoint their own expert.
A single expert may also be asked to prepare a report that follows a family assessment and is similar, or the same, in nature to a Family Report prepared by a Family Consultant. In these circumstances, a private practitioner may be jointly appointed by, or on behalf of both parties to the proceeding. The financial capacity of each party will assist the court to determine whether a Family Consultant is assigned to prepare a Family Report, or the parties are to pay for the services of a single expert witness (FCFCA Rules, rule 8.11(2)(c)).