Judicial Conversations With Children in Parenting Disputes: The Views of Australian Judges

Abstract

Judicial interviews with children in contested parenting proceedings are an uncommon and contentious practice in Australia and many other common law jurisdictions. This article reports on a study of the views of Australian judges concerning talking with children in chambers. Most judges were opposed to talking with children because of concerns about how it would affect the quality of their decision-making, perceptions of fairness to the parents and because of concerns about possible adverse effects for the child. A minority of judges were strongly in favour of the practice at least for some cases, in addition to having the benefit of an assessment from a suitably qualified professional. There was agreement among all judges that a judge could not offer the child confidentiality and that the parties needed to have a report given to them of the substance of the conversation.

This article explores the reasons that judges gave for being opposed to or cautiously in favour of having conversations with children before and after making their decisions. In a related paper, we explore parents' and children's views on the same issue (Parkinson, P., Cashmore, J. and Single J., 'Parents' and children's views on talking to judges in parenting disputes in Australia'). On the basis of these views, and the views of the parents and children discussed in the related paper, we propose guidelines on when and how judges should engage in 'conversations' with children in chambers if they consider it appropriate to do so.

Keywords: children, parental separation, divorce, parenting disputes, participation, voice of the child, judicial interviews

JEL Classification: K10, J12, K19