A new way to decide disputes about children
The changes to the Family Law Act, which took effect on 1 July 2006, included provisions to support a new, less adversarial approach to hearing cases involving children. The Government's new approach is consistent with that taken by the Family Court in its pilot of the Children's Cases Program (CCP), which ran from March 2004 to December 2005.
The following information provides a brief overview of how the Family Court of Australia conducts less adversarial trials. For more detailed information refer to the brochure Less Adversarial Trials.
What is a less adversarial trial?
The Family Court takes a less adversarial approach to trials in child-related proceedings. The Family Law Act 1975 mandates this approach in Division 12A of Part VII. This means a trial in a child-related proceeding:
The judge, rather than the parties or their lawyers, decides how the trial is run.
Key features
Key features of the less adversarial approach, which vary significantly from a traditional hearing include:
The judge, rather than the parties or their lawyers, decides how the trial is run.
Others things to know about less adversarial trials
Children's Cases Program
The Family Court's less adversarial approach was modelled on the Children's Cases Program which began as a pilot in the Parramatta and Sydney registries in March 2004 for people who consented to a less adversarial hearing in court disputes about their children.
A major feature of the CCP was the active role taken by the judge allocated to the case. Unlike traditional adversarial hearings a CCP hearing was more closely directed by the Judge and designed to encourage the parties to focus on future arrangements that were in the best interests of their children.
That is, rather than approaching the proceedings with the aim of 'winning' or 'punishing' each other, the parties (usually the parents) and their lawyers (if they were represented) participating in the Children's Cases Program were encouraged to consider how they could help the Judge find the best solution for the children.
Evaluation of the CCP Pilot
A formal, two-part external evaluation was undertaken throughout the CCP pilot and included all CCP cases up to 31 December 2005. The evaluations assessed whether the program achieved its objectives.
In March 2006, Dr Jennifer McIntosh of Latrobe University presented the Court with a report that explored the impact of CCP on parenting capacity and child wellbeing. The report compared data from parents participating in CCP with similar data from parents in a control group of cases that were finalised in the same period.
The results of the study were very affirming with Dr McIntosh concluding that CCP 'demonstrated a greater capacity to respond to and safeguard the psychological vulnerabilities of the co-parental relationship, post separations than the traditional, adversarial... process'.
In other words CCP's less adversarial approach avoided the harm usually caused by putting already damaged relationships through an adversarial process.
A final evaluation report prepared by Professor Rosemary Hunter of Griffith University in Queensland, similarly found that as a less adversarial and more child focused process, the CCP had the potential to assist parents to parent more cooperatively.
Professor Hunter also found that the CCP pilot resulted in a faster court process, and parties who had participated in CCP were generally more satisfied with that process than parties whose dispute was determined using a traditional adversarial approach.
Child Responsive Dispute Resolution Program
In October 2005, a new 12-month pilot called the 'Child Responsive Dispute Resolution Program' commenced in the Court's Melbourne Registry in tandem with the Children's Cases Program.
The pilot program provides for greater focus on children by obtaining children's views and interviewing parents earlier. It also provides for the same family consultant (formerly 'mediator') to work with a family throughout its time with the Court, and to feedback views to parents at various stages throughout the Court process.
Additionally, the Court will be able to refer people to community-based mediation and conciliation services if there is a real potential to resolve matters without further Court involvement. All interventions between the family and the family consultant (formerly 'mediator') are reportable, meaning they are not confidential and can be used in court.
A formal evaluation of the pilot will be undertaken which will assist the Court's consideration of introducing the new approach on a national basis. National implementation however, will be dependent upon the availability of adequate funding.
Additional information
Further information about the less adversarial trial and the child responsive dispute resolution program is available from your nearest family law registry.