The Family Law Council’s terms of reference require Council to consider how best to support children and young people to participate and be represented in family law system processes, and to facilitate access to timely and appropriate support services.

This specific term of reference requires consideration of existing and potential mechanisms to facilitate the participation of children and young people across legal and non-legal family law system processes. Council’s consideration of these mechanisms is based on relevant empirical research and commentary, together with stakeholder consultations and submissions.3 Drawing on this evidence base, Council’s discussions and subsequent recommendations in this report are informed by an evolving understanding of child development that acknowledges children and young people’s agency and capacity as active social actors in our families and communities.

Australian and international research that has focused on, or is conducted with, children and young people in relation to family law system services, evidences the need to provide them with safe and effective options to participate in post-separation decision-making that affects them. The research also identifies that critical to this process is the provision of independent and accurate information
about the decision-making process and the outcomes of this process.

The United Nations Convention on the Rights of the Child articulates the participatory rights of children and young people.4 Although it has been in place for nearly 35 years and has 196 signatories, there are varying views regarding how, and the extent to which, children and young people should be involved in post-separation decision-making processes. These variations are indicative of the range of perspectives and of the challenges to implementing children’s rights in practice – challenges that are not unique to the Australian context.

Currently, the Australian family law system operates on a historical model which primarily regards the adults as the ‘clients’. This model allows limited scope for the agency and voices of children and young people, appropriate to their evolving capacities.