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Judicial meetings with children in Australian Family Law Proceedings: Hearing children’s voices


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Fernando, MM 2011 , 'Judicial meetings with children in Australian Family Law Proceedings: Hearing children’s voices', PhD thesis, University of Tasmania.

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Australian family law judicial officers rarely take the opportunity to meet with
children who are the subject of proceedings, despite the fact that the outcome of these
proceedings will affect many important aspects of a child’s life. This appears to be at
odds with the court’s obligation to regard the best interests of the child as the
paramount consideration and the child’s right to participate pursuant to the United
Nations Convention on the Rights of the Child. While it appears that the practice of
judicial meetings with children is not encouraged in Australia, internationally there is
growing support. Several countries have implemented guidelines or taken other steps
to actively encourage greater use of the practice. In some countries, judicial meetings
are carried out frequently, uncontroversially and successfully. Delegates at the 5th
World Congress on Family Law and Children’s Rights in 2009 passed a resolution in
support of judges considering whether to meet with a child in every case before them.
This thesis looks at the benefits that can be gained, both for children and for decisionmaking,
by judges meeting with children. These benefits are viewed within the wider
context of how the right of children to express their views is exercised in family law
matters and the literature on how children feel about their current level of
participation in court proceedings. In determining what is in the best interests of a
child, judges may be aided by a practice that enables them to learn more about a
child’s needs and interests than via other recognised methods of hearing children’s
The thesis explores the reasons why there are only a handful of cases in which
Australian judges have met with children and discusses the main criticisms of the
practice. The author conducted a unique empirical study to discover the views and
experiences of the Australian family law judiciary about meeting with children.
Utilising both qualitative and quantitative methods, the study involved in-depth
interviews with four Family Court judges and a survey of all family law judicial
officers in Australia. The results of the study make an original contribution to the
field of judicial attitudes to children’s participation in family law. It was discovered
that some problems discussed in the literature, such as due process and
confidentiality, may be more perceived than real as judges were able to suggest ways
to overcome them. The study found that many judges see strong benefits in meeting with children, but that they may be unable to overcome two lingering concerns.
Judges perceive that they lack the skills and training to meet with children, and they
are troubled by the prospect that judicial meetings may subject children to parental
pressure or manipulation.
The thesis makes recommendations to ensure greater certainty in the practice of
judicial meetings with children. These include the implementation of Australian
guidelines on when and how judicial meetings should be conducted. With recent
child-focused changes to family law and practice, such as the Less Adversarial Trial
procedure, and growing international discussion, it is anticipated that judicial culture
may slowly change. With time, judges may consider the potential benefits of meeting
with a child in every case that comes before them. It is argued that it is imperative
they do so in order to give effect to the internationally recognised rights of children
and the fundamental obligation of the family law courts to regard the best interests of
the child as the paramount consideration.

Item Type: Thesis - PhD
Authors/Creators:Fernando, MM
Keywords: children, judges, judicial interviewing, Family Law, children's rights, children's participation, judges' views, international comparison, Family Law Act 1975 (Cth)
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Copyright 2011 the Author

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