How do Psychology and Social Science play a significant role in our Family Law system?
The Evolution of Social Science in Australian Courts
In Family Law, the intersection between legal procedures, psychology, and social science plays a pivotal role in shaping the outcomes of parenting disputes. Family Law stands apart from other areas of law as greater insights from social sciences are considered and it can be pivotal to the outcome.
Australian courts have integrated aspects of social science into legal proceedings, e.g. the acknowledgment of psychological harm in family violence. On 5 December 2022, the Federal Circuit and Family Court of Australia advised that the court’s data showed that of parenting cases before the courts:
80% of matters involved incidents of family violence;
70% of matters involved either child abuse or the risk of child abuse;
58% of matters involved mental health issues resulting in harm to a child or putting a child at risk;
53% of matters involved incidents of drug, alcohol, or substance misuse, resulting in harm to a child or putting a child at risk.
In early 2021, the FCFCOA launched the Lighthouse Project in response to the escalating levels of family violence. Geared towards screening high-risk families, the project aims to enhance overall outcomes. Alongside the Lighthouse Project to address escalating family violence, we have seen an increased prevalence of social and psychological services, such as supervised time, child impact reports, therapeutic interventions, and reliance on family reports, within the family court system.
Balancing a legal institution with therapeutic resources
While the benefits of these processes are evident, it is crucial to recognise that the court primarily operates as a legal institution, not a therapeutic agency. As social services become integral components of parenting orders questions arise about where the courts should draw the line about the use of therapeutic resources, and the impact on parenting orders.
Understanding Social Processes in the Courts
Supervised Time
What is supervised time under parenting orders?
In parenting proceedings, and under the current legislation, the Court must regard the best interests of the child as the paramount consideration. At present, when determining the best interest of the child the Court must primarily consider the following sections of the Family Law Act (1975)
Children’s right to maintain a meaningful relationship with both of their parents (s 60CC(2)(a)).
Protecting the child from harm (s 60CC(2)(b)).
In situations, where there has been family violence, child abuse or the risk of child abuse, mental health issues resulting in harm to a child or putting a child at risk, and/or incidents of drug, alcohol, or substance misuse, resulting in harm to a child or putting a child at risk, the Court must weigh these factors against the child’s right to maintain a meaningful relationship with both of their parents.
In such cases, provided it is appropriate and safe for the child, the Court can order that the parent spend supervised time with the child. Supervised time allows for contact to occur, satisfying the child’s right to have a meaningful relationship with the parent without compromising on the court’s duty to protect the child from harm. Supervised time is generally done through an independent service where a supervisor will be assigned to assist with the visitation but can also be performed by a trusted friend or relative provided the Court is in agreement that the friend or relative is suitable to supervise the time with the child.
When is supervision needed?
Supervised contact visits are recommended in matters when the following issues are present:
Elevated levels of conflict between parents,
Concerns about potential harm or violence to the child,
Limited parenting skills from the supervised parent,
The child has spent minimal to no time with the parent and requires a gradual reintroduction process.
While the supervisors may be unfamiliar to the child at first, there are numerous psychological advantages for both the child and parents. The key benefit of this arrangement is that it has the potential to alleviate the custodial parent’s concerns and to diminish the children’s anxiety. When supervised time is ordered, the child may not feel entirely at ease being alone with the supervised parent, and a supervisor's presence can offset the child’s anxiety.
There have been instances where the court has given more insight into how supervision orders work. The court in Slater & Light [2013] said that even in instances where supervision has been ordered for an indefinite time, these orders should generally include liberty to apply for unsupervised time, however, supervision is not a long-term solution. Orders for supervision can also be reversed in circumstances where the supervised parent had positive evidence from supervision reports.
This occurred in Gong & Wei [2017] where the father sought to vary the parenting orders from supervised to unsupervised time with his children. The mother tried to prevent this change, but the court held in favour of the father after reviewing the supervisor’s notes from visitations documenting the children’s positive experiences when spending time with the father.
Is the outcome of supervised visits admissible as evidence?
After each visit, supervisors routinely produce an observational report. These reports can be used as a guide to determine the appropriate parenting order. It is also possible for supervisors to be called to give evidence in Court. This type of evidence can assist the Court in determining an appropriate parenting order.
Family Consultants
Who are family consultants and what is their involvement?
Family consultants are psychologists and social workers who have specialist knowledge in child and family issues arising from divorce. They prepare two types of reports:
1) Child Impact Report.
2) Family Violence Report.
The Child Impact Report focuses on the children’s experiences and needs early in proceedings and the Family Violence Report, addresses issues such as Family violence. Both reports provide recommendations for arrangements that will best meet the children’s future care, welfare, and development.
Is the Court bound by report recommendations?
The Court is not bound by the recommendations of these reports, however before making orders, the Court must consider the recommendations. Like any other source of evidence, the reports can be challenged in court.
Social Science & Law: striking a balance
While the court system incorporates social and psychological services such as supervised time and mental health assessments into its regular procedures in handling family law issues, there is a contrast in the degree of confidentiality offered. Whilst supervised contact visits, child impact reports, and family reports are taken from the field of psychology, these services are not protected by confidentiality. Any information that is gained from these processes can be used as evidence. There are specific obligations (under s 67ZA) for family consultants to disclose information to the police or child welfare authority if they suspect abuse. Despite the intersection of law and social science, courts do not function as therapeutic agencies and adhere to distinct rules.
Do the Courts regulate the use of social services?
The Court has the power to order that a party attend a medical expert to undergo a psychiatric assessment and treatment as part of any parenting orders given that there is a proper evidentiary basis for the court to make such an order. In the case of Furlan & Furlan [2018], in which orders were made for the child to live with the mother, concerns about potential psychological harm and neglect were raised as the mother been diagnosed with bipolar affective disorder and attention deficit hyperactivity disorder. The court, considering the medical evidence, ordered that the mother live with her parents, receive ongoing medical treatment, and reside within a 10-kilometer radius of her parents' home. With these safeguards in place, the court said that the potential risk posed by the mother was acceptable, and prioritized the children's ongoing relationship with their mother.
This case serves as a prominent example of the court’s adherence to the prioritization of the best interests of the children and as an example of some of the more extreme measures that the Court can order in the best interests of the child.
The more recent case of Lainhart & and Ellinson [2023] clarified the limitations imposed on the nature of parental orders, particularly ones regarding psychological reports. In Lainhart, the mother appealed a decision granting her sole parental responsibility but supervised time for the father under specific conditions including participation in cognitive behavioural therapy (CBT). The father participating in CBT aimed to engage a psychologist to provide a report to confirm whether the father understood and accepted that he had anger management problems which led him to perpetrate physical and psychological violence against the mother. The judgment pointed out flaws in this approach, indicating that presuming the psychologist's opinion as conclusive introduces potential pitfalls. The orders faced criticism for surrendering judicial power to a psychologist. Ultimately, it reinforces that the Court functions as a legal institution rather than a therapeutic one and must incorporate these services within legal boundaries.
Voice Lawyers: Your Guide in Family Law Matters
As lawyers working in family law, we have noticed an increase in clients seeking advice, clarification, and understanding about the use of social services and their parenting orders. if you need guidance, please don’t hesitate to contact us for a consultation.
This article is general in nature and is not legal advice. If you need help dealing with a parenting dispute or require assistance with a family law matter, Voice Lawyers hear you.
We help people navigate the complexities of family law with confident, practical advice. You can contact us at voice@voicelawyers.com or call 02 9261 1954 to book a consultation to speak with one of our lawyers.
By Kayte Lewis & Enda Byrne
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