Eje de acción: Energía

A fundamental principle of due process and natural justice is that all parties to proceedings be given the opportunity to hear and test all the evidence, and be allowed to make submissions in respect of that evidence, before a decision is made.3 When a judge meets with a child, in the absence of the parties and their counsel, for the purpose of ascertaining or confirming evidence about the child’s views, it may be perceived that the court is receiving and acting on evidence which is unknown and untested by the parties and counsel.4 This would constitute a breach of natural justice. As will be discussed below, this concern can be addressed by ensuring that the parties receive an account of the judicial meeting and are given an opportunity, prior to a decision being made, to make submissions, ask for clarification, or challenge the evidence.

Under the Family Law Rules 1984 (Cth) (‘former Rules’), a judge could not rely on any information obtained during a meeting with a child, as the former Rules specified that such meetings were ‘confidential’.5 The main problem with judicial meetings remaining confidential was highlighted in the United Kingdom case of H v H.6 After speaking with the two children alone in chambers, the trial judge made orders that did not appear to accord with the evidence adduced in open court. The judge had made confidential notes of his meeting with the children and had recorded a promise he made to the children that nothing said by them would be disclosed. The appeal court was faced with the choice of either looking at the confidential notes and breaking the promise, or hearing the appeal without being able to consider matters vital to the original decision. The court instead ordered a rehearing by a different judge.

In ZN and YH and Child Representative7 Nicholson CJ said he thought it may be

desirable to revise the (former) Rules to remove the requirement that judicial meetings

3

Allesch v Maunz (2000) FLC 93-033, 87,517 (Kirby J); Kioa v West (1985) 159 CLR 550; Mobil Oil Australia Pty Ltd v Commissioner of Taxation (1962) 113 CLR 475.

4 _{Judge J Doogue, ‘A Seismic Shift or a Minor Realignment? A View from the Bench Ascertaining} Children’s Views’ (2006) 5 New Zealand Family Law Journal 198, 205; Cashmore, ‘Children’s Participation in Family Law Matters’, ibid; R Chisholm, ‘Children’s Participation in Family Court Litigation’ (1999) 13 Australian Journal of Family Law 197, 203.

5 _{Former Rules, O23 r5.} 6_{H v H (1974) 1 All ER 1145.}

remain confidential.8 This requirement was removed with the introduction of the

Family Law Rules 2004 (Cth) and there is now nothing preventing judges from

relying on, as evidence, any information obtained through a discussion with a child.9 For natural justice principles to be upheld, however, the court must ensure that the parties are furnished with all information arising from the judicial meeting and have an opportunity to respond to it. There are various ways in which this may be done.

In ZN v YH,10 for example, Nicholson CJ ordered that the children be reinterviewed

by the family consultant and a further family report be prepared. This approach, if adopted regularly, may lead to unnecessary and costly delay. In other Australian cases, judges have asked a family consultant to be present during the judicial meeting. The family consultant supplies an oral or written report in open court as to what happened during the meeting.11 This is an appropriate way for information obtained during the judicial meeting to be adduced as evidence.12 The parties can ask questions of the family consultant about the information presented, including the family consultant’s opinion of the validity of any views expressed by the child.

As will be discussed below, the presence of a family consultant during a meeting between a judge and a child is desirable. Their presence puts to rest other perceived criticisms of judicial meetings with children such as the effect on the child and judges’ lack of training in this area (discussed below). Conducting judicial meetings in the presence of a family consultant was suggested by Parkinson and Cashmore in their proposed guidelines for judicial conversations with children.13

8 _{Ibid, [108].}

9 _{Rules r15.03 (now omitted). This rule, which specifically referred to judges’ discretion to meet} with children, was omitted by the Family Law Amendment Rules 2010, which came into force on 1 August 2010. This omission does not affect judges’ discretion to speak with children (Explanatory statement, Family Law Amendment Rules 2010 (Cth), [16]).

10

ZN and YH and Child Representative (2002) FLC 93-101. This case was discussed in detail in Chapter Four.

11 _{See, for example, Painter and Morley [2007] FamCA 283 (Unrep, Benjamin J, 29 March 2007), A} and D [2004] FamCA 879 (Unrep, Guest J, 26 August 2004), Lachlan & Lachlan [2008] FamCA 455 (Unrep, Le Poer Trench J, 25 June 2008).

12 _{P Parkinson and J Cashmore, ‘Judicial Conversations with Children in Parenting Disputes: the} Views of Australian Judges’ (2007) 21 International Journal of Law, Policy and the Family 160, 184.

A problem may surface if the family consultant’s perception of what happened during the judicial meeting differs from the judge’s perception. The family consultant reports the outcome of the judicial meeting to the parties but it is the judge who finally determines the matter. The effect of a discrepancy between the judge’s and family consultant’s respective recollection of events may have serious consequences for the outcome of a matter. This problem was raised by many Australian judicial officers who participated in the author’s interviews and survey. Several judges made suggestions for how this difficulty may be addressed and these are discussed in the second part of this chapter. In any event, it is argued below at 5.2.2 that evidence collected as a result of a judicial meeting is unlikely to be complex, subtle or ambiguous. Therefore, a significant difference between the recollection of the judge and the family consultant as to what happened during the meeting is less likely. At the judge’s discretion, a transcript or audio or visual recording of the judicial meeting, or part thereof, can be given to the parties. As discussed in the second part of this chapter, many family law judicial officers in Australia agree that this should occur in all but exceptional cases.14

If a judge ensures that the parties are provided with a family consultant’s report and/or a transcript or audio or video recording of the judicial meeting during the course of proceedings, it can generally be accepted that all parties, though not present during the meeting, will receive an account of what was said, and that the fundamental principles of due process will be complied with. The parties will have an opportunity to respond and make submissions about the evidence obtained as a result of the meeting, before the judge makes the final decision.

Unfortunately, this approach conflicts with children’s own preference about the way in which their views expressed in a judicial meeting should be dealt with. Many children have indicated that things said during a meeting between a child and a judge should remain confidential.15 Aside from offending the principles of natural justice,

14 _{Note the discussion below that, in some circumstances, judges may exercise their discretion to} limit the amount of information given to the parties, particularly if it is considered that sharing all details of the meeting would be harmful to the child.

15 _{B Neale and C Smart, ‘Agents or Dependants? Struggling to Listen to Children in Family Law and} Family Research’ (Working Paper 3, Centre for Research on Family, Kinship and Childhood,

to keep the outcome of judicial meetings confidential, it has been argued, trivialises the child’s voice and increases the prospects of errors of reasoning and the overall outcome of the case.16 These results are clearly not in children’s best interests.

It is important that children are made aware, before the judicial meeting, that things they say will not necessarily remain confidential and may be made known to everyone involved in the court proceedings, including their parents.17 As Megaw LJ said in H v H:18

It seems to me that…while the judge seeing the child privately must naturally do all he can to encourage the child to speak freely, frankly and without fear, he may not give the child a promise which would be such in its terms, or be understood by the child as meaning, that in no circumstances will anything that the child says be made known to anyone else.19

Judges must ensure that children are aware, and understand, that matters discussed during a meeting will not necessarily remain confidential. Without the child’s consent the meeting should not proceed. A problem may arise if a child, having agreed at the beginning of the judicial meeting that things they say may be reported to their parents, subsequently reneges on that agreement and requests that some aspect of the meeting remain confidential. If the child is unable to be swayed, the judge must not rely on the disclosure as the basis for making his or her decision.20 To do so would be contrary to the principles of natural justice, which require that a judge’s decision be soundly based on the evidence available to the parties. Judges are often required to disregard information which is not properly admitted as evidence, and information which a child insists should be confidential should not be treated any differently.21 A

University of Leeds, 1998), 14; P Parkinson, J Cashmore and J Single, ‘Parents’ and Children’s Views on Talking to Judges in Parenting Disputes in Australia’ (2007) 21 International Journal of Law, Policy and the Family 84, 91.

16 _{J Caldwell, ‘Judicial Interviews of Children: Some Legal Background’ (2007) 5 New Zealand} Family Law Journal 215, 220.

17 _{Parkinson and Cashmore, ‘Judicial Conversations with Children’, above n12, 185; Doogue, above} n4, 205.

18_{H v H (1974) 1 All ER 1145.} 19 _{Ibid, 1148 (Megaw LJ).}

20 _{This was agreed by all judges interviewed in Parkinson and Cashmore, ‘Judicial Conversations} with Children’, above n12, 165.

21 _{This would not be the case if the disclosure related to an allegation of child abuse, in which case} the judge, family consultant or Independent Children’s Lawyer would be mandated to report the disclosure to the relevant child protection authority under FLA s67ZA.

judge who considers that he or she cannot disregard the information must disqualify him or herself from hearing the matter.22

It should be remembered, however, that judges have a wide discretion in the conduct of children’s matters and may, in certain circumstances, exercise that discretion in order to keep confidential something a child has said. One such circumstance may be if the matter to be kept confidential is not significant to the outcome of the proceedings, or can be presented as evidence in another way. In Re Alex,23 for example, the trial judge respected the child’s wish for the judicial meeting to be kept confidential. In order to comply with due process, the judge did not rely on anything the child said during the meeting and, where there were specific matters on which his Honour wished to rely, he referred those matters to witnesses to ensure the evidence was brought into the open.24 In Lachlan and Lachlan25 Le Poer Trench J justified his decision not to release a copy of a DVD recording of his meeting with a teenage boy. The parents had received all relevant information arising from the meeting through a report from the family consultant, who had been present at the meeting. His Honour said that children have some right to confidentiality in certain circumstances, and a trial judge has discretion not to publish information if it may be harmful to the child to do so.26