By Dr Georgina Dimopoulos
Senior Lecturer in Law and Research Associate, Centre for Children and Young People
Southern Cross University, Australia
As a grant recipient in the 2021-22 SLSA Research Grants Scheme, I conducted a research project examining judicial engagement with the United Nations Convention on the Rights of the Child (‘CRC’) in Australian family law decision-making. In this post, I report on the key findings of my project. I highlight that there is a way to go to transform children’s rights ‘from abstract expressions into meaningful, fruitful and enduring commitments’ by judges in children’s proceedings under Part VII of the Family Law Act 1975 (Cth).
The status of the CRC in Australian family law
My research project focused on children’s rights as contained in the CRC. Australia ratified the CRC on 17 December 1990 and it came into force for Australia on 16 January 1991. However, this international convention has not been incorporated into domestic law at the federal level. The Full Court of the Family Court of Australia has held that the CRC must be given ‘special significance’ when interpreting domestic law, given its almost universal acceptance and given that it ‘is likely to be a fact or circumstance that the Court thinks is relevant in the absence of any inconsistent statutory provision’.
Courts exercising jurisdiction under the Family Law Act must have regard to ‘the need to protect the rights of children and to promote their welfare’ (s 43(c)). Part VII of the Act deals with children’s matters, including the making of parenting orders and orders relating to the welfare of children.
While there is no express reference to children’s rights in the list of ‘primary’ and ‘additional’ considerations that judges must take into account in determining what is in a child’s best interests (s 60CC), various articles of the CRC are incorporated into Part VII of the Family Law Act and embedded in court processes. These include the principle of ‘the best interests of the child’ as ‘the paramount consideration’ (ss 60CA, 67ZC); the benefit to the child of having a meaningful relationship with both parents following separation, consistently with the child’s best interests (ss 60B(1)(a), 60CC(2)(a)); and the need to protect the child from harm from being subjected or exposed to abuse, neglect or family violence (s 60B(1)(b), 60CC(2)(b)).
The ‘additional object’ of Part VII, which came into force in June 2012, is ‘to give effect to the Convention on the Rights of the Child’ (s 60B(4)). This additional object is ‘not equivalent to incorporating the Convention into domestic law’ and it ‘does not give any legally enforceable rights to children’. Rather, it confirms the obligation on decision-makers to interpret Part VII consistently with Australia’s obligations under the CRC.
The role of judges in protecting and advancing children’s rights has been the subject of increasing attention in recent years. Yet there is still a gap in understanding how Australian family law judges engage with children’s rights in their decision-making. The aims of my research project were:
- to identify how judges use the CRC in proceedings under Part VII of the Family Law Act;
- to identify practical influences on judges’ willingness and ability to engage with the CRC; and
- to evaluate the relevance and significance of the CRC in this context.
The methodology consisted of an empirical study of published judgments and a survey of judges of the Australian family courts.
The empirical study
I examined 308 published judgments in 296 separate proceedings that referred to the CRC and concerned proceedings heard and determined under Part VII of the Family Law Act at first instance. The timespan of the study was 1 January 1990 to 31 December 2021 inclusive.
In 34% (105/308) of these judgments, the only reference to the CRC was in the context of providing an excerpt of the objects clause in section 60B or paraphrasing the ‘additional object’ of Part VII.
I quantitatively and qualitatively analysed the subset of 203 judgments that engaged with the CRC in a substantive manner. My analysis revealed that:
- the insertion of the ‘additional object’ does not appear to have discernibly influenced judicial engagement with the CRC: in fact, there has been a noticeable decline since 2017;
- the CRC has been raised predominantly by a small number of judges: 61.6% (125/203) of the judgments that engaged with the CRC were of three judges alone;
- the Australian Human Rights Commission, in its capacity as intervener, made submissions that invoked the CRC in each of the four proceedings in which it had intervened, prompting the most meaningful judicial analysis of child rights-based arguments;
- while an independent children’s lawyer (‘ICL’) – appointed to represent the child’s best interests – featured in 62% (126/203) of judgments, the CRC was not raised by the ICL in any of these;
- in addition to the Preamble, 22 substantive Articles in Part I of the CRC, and one Article in Part II, were cited across the judgments; and
- Article 12 (the right to participation) and Article 3 (the best interests principle) were the two most frequently cited articles of the CRC.
My two key conclusions from the empirical study findings are that: (i) children’s rights are not yet a way of thinking for judges in Part VII proceedings; and (ii) further judicial engagement with children’s right to express their views and be heard under Article 12 of the CRC could improve children’s meaningful, safe participation in decision-making, if conceptual and practical obstacles are addressed.
Examples of judges adopting a ‘substantive’ children’s rights approach, which includes conceptualising the issues from the child’s perspective, procedures that facilitate the child’s meaningful participation, and reasoning that balances competing interests and rights, were few and far between in the judgments analysed.
My study also exposed considerable judicial scepticism about the relevance of the CRC, and concerns about bestowing children with rights. It found that judges appreciate the importance of children’s right to express their views and to be heard in proceedings. However, implementing this right will require disrupting the ingrained dichotomy between protection and participation, and investing in the family courts to provide resources, capacity-building and skills development.
For a fuller discussion of this empirical study, see Georgina Dimopoulos, ‘The Right Time for Rights? Judicial Engagement with the UN Convention on the Rights of the Child in Part VII Proceedings’ (2023) 36(1) Australian Journal of Family Law 63.
The judicial survey
The second component of this research project was a survey of judges of the Federal Circuit and Family Court of Australia (‘FCFCOA’) and the Family Court of Western Australia (‘FCWA’) about their experience with, and views regarding, the CRC in Part VII decision-making.
The survey was developed using the online survey platform ‘Qualtrics’. It was anonymous and consisted of 11 questions: eight were multiple choice, while three sought an open text response. Questions addressed matters including the relevance of the CRC to the judge’s decision-making in Part VII proceedings; whether the judge had engaged previously with the CRC and factors influencing that engagement; the likelihood that the judge would engage with the CRC in their future decision-making and factors that may influence that future engagement; and an invitation to make any other further comments about the relevance and significance of the CRC to Part VII decision-making.
The ethics approval process took six months and involved three committees across three institutions. An invitation to participate, including an explanatory statement and consent form, was circulated by the Courts to a total of 112 judges: 96 of the FCFCOA and 16 of the FCWA. Between August and October 2022, I received eight written consent forms. Of the eight judges to whom I provided the online survey link, only five submitted responses to some or all of the questions. The survey response rate was 4.46% (5/112).
I have identified three potential reasons for judges’ unwillingness or inability to participate: (i) the subject matter of children’s rights; (ii) the methodology and recruitment process; and (iii) the growing demands of the judicial role in Australian family law. However, I consider that my unsuccessful endeavour can be reframed as an opportunity to highlight an enduring challenge for academics seeking to engage judges as research participants: to overcome the ‘unfortunate disjunction’ between academia and the judiciary, by persuading judges of the practical and educative value of participating in socio-legal research. I am currently drafting a reflective piece on this failed survey.
I hope that the findings of this project stimulate discussion and debate about how Australian family law judges may more robustly engage with the CRC and incorporate children’s rights into their decision-making. I thank the SLSA for making this research possible.
 Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore, ‘Introducing Children’s Rights Judgments’ in Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore (eds), Rewriting Children’s Rights Judgments: From Academic Vision to New Practice (Hart Publishing, 2017) 1, 7.
 In Marriage of B (1997) 140 FLR 11, 82 (Nicholson CJ, Fogarty and Lindenmayer JJ).
 Replacement Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth) 7 .
 Zammit v Zammit  FamCA 950,  (Bennett J).
 See, eg, Aoife Nolan, Children’s Socio-Economic Rights, Democracy and the Courts (Hart Publishing, 2011); Aoife Daly, Children, Autonomy and the Courts: Beyond the Right to be Heard (Brill Nijhoff, 2017); Jane Fortin, ‘A Decade of the HRA and its Impact on Children’s Rights’ (2011) Family Law 176; Stalford, Hollingsworth and Gilmore, Rewriting Children’s Rights Judgments, above n 1.
 See Georgina Dimopoulos, Decisional Privacy and the Rights of the Child (Routledge, 2022) ch 3; Kathryn Hollingsworth and Helen Stalford, ‘Towards Children’s Rights Judgments’ in Stalford, Hollingsworth and Gilmore, Rewriting Children’s Rights Judgments, above n 1, 53; John Tobin, ‘Judging the Judges: Are they Adopting the Rights Approach in Matters involving Children?’ (2009) 33(2) Melbourne University Law Review 579, 603-19.
 Jane Fortin, Children’s Rights and the Developing Law (Cambridge University Press, 3rd ed, 2009) 29.