Family breakdown should be considered first and foremost a child health and welfare issue, not a legal issue. The latest scientific and medical evidence, not legal advocacy, should play the key role in determining what’s best for children’s long-term welfare. Family separation and divorce are a major social issue best suited to a Health, Family, or Children’s portfolio.
We need to recognise that family breakdown is a time of high risk for children and vulnerability for parents. It requires a health-focused, pro-active approach – as with other social issues – rather than a passive approach that too readily allows children and families to drift towards, or be affected by, harmful court interventions.
We recommend that this major social issue be addressed holistically and pro-actively by a Minister for Children and Families. Continuing to view family separation primarily as a legal issue, managed by the Department of the Attorney-General, will result in ongoing, serious and avoidable harm to our children and future generations.
Investment should be made in education and early, comprehensive support for families.
This should include, among other components:
– a well-targeted Schools Program to equip children better to develop resilience, positive relationships, critical thinking, conflict resolution skills and self-management of behaviour and emotions;
– a national educational campaign to help parents better manage relationships and separation;
– raising awareness of the potentially harmful consequences to children of family breakdown including the extreme risks, consequences and prevalence of some forms of psychological child abuse and family violence;
– promoting the safest, healthiest approaches to family breakdown – including counselling, coaching, mediation and health-focused support – as mainstream solutions, not as “alternative dispute resolution” or as “alternatives” to the family court;
– integrated, health-focused interventions, mediated by medical and healthcare centres; and
– promotion and development of innovative solutions that offer self-help, early intervention and reduce risks associated with family breakdown.
All professionals involved in making decisions that profoundly affect the lives of children must be properly qualified in this specialisation. An accreditation system for the necessary skills should be implemented, new training courses developed, and a database of qualified specialists made publicly available. This should include, but not be limited to: social workers, counsellors, psychologists, family dispute resolution practitioners, family court report writers, lawyers and judges.
New standards of accountability should be introduced, guaranteeing routine and more open analysis of performance, conduct and outcomes – replacing the current culture where scrutiny is inhibited (even by legislation). When the lives of children are at stake, no health or legal professional should be immune from legitimate scrutiny and independent and transparent review.
These measures should be overseen by a new independent body, which should be given the authority to monitor the performance of all professionals and to address complaints in a professional, timely manner.
Investing in our children is one of the most cost-effective of all investments. The government should adopt an evidence-based approach to funding and prioritise investment in a diverse range of government and private sector initiatives that are more cost-effective and less harmful than family court proceedings.
These should include programs such as: earlier education and health-focused support; high-quality coaching and counselling for parents and children; better conciliation, mediation and family dispute resolution services; Medicare-supported health/family care plans; the development of comprehensive, practical, family-friendly online resources; and online/smartphone apps that facilitate parental cooperation and provide ready-access to educational resources for families who need help and support more than they need lawyers and courts.
When governments do intervene in matters that affect children, such interventions should be urgent, expertly managed, evidence-based and outcome-focused. Above all, they must demonstrate that they “do no harm”.
Family courts are harmful to children. Intrinsically slow, unaffordable, frightening and adversarial – and neither monitoring, nor obtaining feedback from, the outcomes of their decisions – they are not fit for the purpose of looking after the best interests of children or families.
For most family separations (where there is no history of family violence, abuse or neglect), a streamlined, more cost-effective, healthier government intervention should be introduced nationally – and private sector equivalents supported – based on the most effective, existing models of conciliation and arbitration.
The government should ensure the availability of local private or government sector arbitrators, providing financial incentives where necessary for the establishment of such services. Attendance at arbitration should be a pre-requisite for accessing the family court system. Non-adversarial arbitration, not family courts, should be funded, promoted and marketed as the primary intervention when healthier approaches have been exhausted.
Family law is not designed for children. It never was and never will be. Retrofitting the Family Law Act – originally framed in the context of parental disputes and property settlement, rather than children’s welfare – will not make it fit-for-purpose or capable of facilitating decisions that are best for children. Nonetheless, family law sets the tone for separations throughout the country and must model the safest, healthiest outcomes that it can.
The Family Law Act 1975 (Cth) should be comprehensively revised, simplified, shortened, and based on the core principles of:
– the paramountcy of the long-term wellbeing of children (as distinct from “best interests”);
– prevention of exposure of children to all forms of physical and psychological harm;
– the maintenance of a child’s relationships with all fit and willing parents and other relatives or carers central to the child’s long-term wellbeing;
– natural justice and gender equality; and
– the Universal Declaration of Human Rights and the United Nations Convention on the Rights of the Child.