THAT’S NOT WHAT MUM TOLD US – CHILDREN ACCESSING FAMILY COURT FILES

There is always two sides to every story. In family law matters, I often say that the truth lies somewhere in the middle.

Everyone has their family law war stories. A lot of the time, I hear these stories from the point of view of a person who has been a party to the dispute. What you don’t often hear is the point of view of children who are caught in the middle.

There have been many social science papers written about the how high levels of parental conflict can have a detrimental impact on children. I’ll post a link to a recent paper from a United Kingdom study that details the nature of what can happen to children who are subjected to high levels of parental conflict.

In a recent case, the Full Court of the Family Court was asked to review a decision made about a now adult child of parties to proceedings in 1977 having access to his parents’ family law file.

I was surprised to learn that files from 1977 still existed and are still held in archives by the Court. In 1977, the Family Court of Australia had been in existence for 12 months. The new Family Law Act was still be interpreted and there was one volume of reported decisions from this new court.

In 1977, Mr Carter was an 11 year old boy. His parents has separated an year earlier. Consent Orders were made by the Court at the request of his parents in 1977. Fast forward to present day and Mr Carter is now a 53 year old man who is in a number of respects estranged from his parents and siblings.

When the matter was reviewed by the judge at first instance, Mr Carter said this about why he wanted to review the Court file:

“I would like to see, for example, who got custody or who got access and the details of this, who was supposed to be responsible for what, who was supposed to pay for what, were the children supposed to be kept together, were the decisions to be reviewed periodically, why was I not granted independent legal representation…and many other things. Whatever is in the file, I would like to see.”

Mr Carter was directed to inform his parents about his desire to view the file. His parents, through correspondence provided to the Court did not object to Mr Carter having access to the file. Mr Carter’s point about him being granted independent representation is a good one. It is now commonplace for children who find themselves in the middle of high parental conflict to be represented by an Independent Children’s Lawyer. This is as a result of the adoption into domestic law of the United Nations Convention of the Rights of a Child which was ratified in 1990. Unfortunately for Mr Carter, this was too late to assist him.

Each of Mr Carter’s parents expressed the view that the contents of the court file was unlikely to assist Mr Carter in finding the answers to the questions that he had posed.

Ultimately, the Full Court allowed Mr Carter to have access to the court file so that he could understand the circumstances that gave rise to his parent’s separation and why certain orders were made. In the judgment, there was reference being made to the file being “very thin” and this was attributed to his parents resolving matters at an early stage.

I have cut down small deciduous forests in order to turn them into court documents (a practice that is now apparently frowned upon). This is generally as a result of matters being complex and the need for appropriate information to be before the Court.

Casting my mind back to my last few weeks in court, the parenting affidavits in those proceeds contained all sorts of information about reasons why parents have separated, all manner of allegations including family and domestic violence, allegations of drug use and whether one parent might be a risk to the children.

Whether these allegations are true or whether the truth lies somewhere in the middle is a matter for a judge to determine. My present concern is that there may be children in the future who will want to see the court documents in their parents’ family law files. How will they deal with the reality of exactly each parent might say about the other parent? In some respects it may be an advantage to children to read documents and decisions about matters that affect them.

Given that most parenting matters settle by consent at some stage, are there going to be more questions left unanswered? This is particularly relevant where no judge has had the job of determine who’s side of the story is more credible or whether the truth really does lie somewhere in the middle.

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