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  • Family law does not put children first
  • By Alastair Nicholson
  • The Age
  • 02/03/2010 Make a Comment (1)
  • Contributed by: admin ( 9 articles in 2010 )
The call by Family Court Chief Justice Diana Bryant for the law to be changed so that important matters relating to a child's welfare that have been disclosed in mediation are admissible as evidence has met with opposition from mediation circles and in the media.

I support Justice Bryant's position. Presently, a court is often required to make decisions on issues such as where and with whom a child should live with no knowledge of relevant facts that could affect such a decision.

There is, of course, no doubt about the importance of mediation in resolving family disputes - I am on record as one of its strongest supporters. There is also a public interest in encouraging mediation by protecting participants from the possibility that what occurs there can be used in evidence in subsequent court proceedings.

Common law has long recognised that it is in the public interest that discussions between litigants, with a view to settling litigation, are to be regarded as privileged.

This does not mean that mediation is sacrosanct. In family disputes, children are involved. Their best interests must be protected. The question is whether and at what point the competing public interest in protecting children should take priority over confidentiality of mediation.

Children do not usually participate in mediation. They are usually the people most affected by it. The Family Law Act and the UN Convention on the Rights of the Child recognise that their best interests are paramount.

Our law does not recognise this principle, because it says that anything disclosed or said in mediation cannot be used as evidence in any court. The only exception is where an adult discloses that a child has been abused or a child says that he/she has been abused. This evidence is admissible, unless the court is satisfied that there is sufficient evidence from other sources.

This exception was introduced following a 2001 case in which a child told her mother that she had been sexually abused by her father. The trial judge found that no such abuse had occurred and that the mother had improperly influenced the child to make the allegation. In fact, the father's admissions in mediation tended to support the child's complaint and that evidence was not admissible. On appeal, the Family Court held that the evidence could not be admitted, although it strongly criticised the legislation that prevented its admission.

This is a very limited exception that does not cover myriad other dangerous situations. It is in contrast with another section that, paradoxically, permits disclosure by a mediator to authorities other than a court, if the mediator reasonably believes that the disclosure is necessary for several purposes. These include protecting a child from physical or psychological harm, preventing or lessening a serious and imminent threat to life or health, or reporting the commission or preventing the likely commission of an offence involving violence to a person.

Such a disclosure may be made to police, but is inadmissible in Family Court proceedings. The practical effect is that threats to harm or kill a child or a child's parents or other family members, made in mediation, are criminal offences that are never disclosed to the court.

Regrettably, such threats are not uncommon and the fact that they have been made has an obvious bearing on the suitability of the person making them to have the care of a child. Failure to admit such evidence may well endanger the child or others, and the increased likelihood of a court making an unsatisfactory decision is obvious.

In my view, it is impossible to argue that preserving the confidentiality of mediation outweighs the public interest in protecting children and others.

Laws are certainly different elsewhere. In Britain, mediation confidentiality is qualified, in that the evidence is admissible if the judge thinks that it is in the interests of justice. A 2008 European Union directive protects mediators from giving evidence in judicial proceedings, except where this is ''required to ensure the protection of the best interests of children or to prevent harm to the physical or psychological integrity of a person''.

In the US, family law differs from state to state. Where there is statutory protection of confidentiality, there are usually exceptions. For example, in Colorado all mediation communications are protected, except those ''revealing criminal intent or threatening harm to minors or adults''.

As the 2001 case shows, we have already had examples in Australia of courts making orders that endanger children because they do not have the full picture. It is high time that this situation changed.

Alastair Nicholson is a former chief justice of the Family Court and is an honorary professorial fellow at Melbourne University.


    By:Leon from WA, Australia on June 14, 2010 @ 10:44 am
    In my case, ex-wife's lawyer is blocking even getting a case seeking real contact (preferably residence) for my children into Court by requiring me in person to acquire the reason (from a mediation centre in Tasmania) for her case being classed as "inappropriate" for mediation earlier this year.

    In this case, her selfishness is being served without any consideration of the best interests of my children -- or anybody else -- at all.

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