A Child Impact Report is one of the tools available to the court where there is some interim issue to be resolved in parenting proceedings. They are generally ordered at a relatively early stage in the proceedings. The reports can be prepared by in-house Court Child Experts, who have experience and qualifications in either psychology or social work.
The Child Impact Report is prepared after interviewing the parties and assessing the views of each of them in relation to the issues in dispute that may require some interim determination. The purpose of the report is to provide information about the experiences and needs of the children the subject of the parenting proceedings, relevant to the dispute before the court. The report writer will consider a range of issues such as the children’s development, their important relationships and any relevant risk factors, such as family violence. Child Impact Reports focus on the impact of these types of issues on the children and parenting.
Information about their children’s experiences can help parents better understand how separation and other family changes affect their children. A Child Impact Report also helps the registrar or judge to understand what is happening for the children the subject of the parenting dispute and assists them in making decisions about the future case management of the proceedings.
The Court Child Expert meets separately with each parent to find out about the children, to identify any family violence and other risk issues which may impact the children, and to discuss the parenting arrangements. The Court Child Expert will sometimes, but not always, meet with the children.
The Child Impact Report generally carries considerable weight in assisting the court to decide interim issues on aspects of the parenting proceedings. The Child Impact Report is often the only independent expert evidence that the court has before it. Having said that, the report is only one source of evidence that the court considers in making interim decisions. The court is not bound by any recommendations contained in the Child Impact Report. The court must also take into account the affidavits of the parties and any witnesses, together with documentary evidence that has been produced in answer to subpoenas.
One of the things that the court will be careful about doing with the Child Impact Report, just as it will be careful about doing generally in interim proceedings, is make findings of fact, especially in relation to critical issues to the proceedings generally. The court is reluctant to make findings of fact at an interim stage, mainly because long experience has taught that what appears to be the reality in interim proceedings can turn out to be anything but the case when the case is heard on a final basis. It should be remembered that generally, no cross-examination of witnesses is allowed at interim hearings.
Further, although there is often time to have a wide range of material produced to the court prior to an interim hearing, there are occasions when not every relevant document can be placed before the court. There is well-settled authority that a court should be very careful before making findings of fact in interim hearings and should generally avoid doing so if possible.
In Marvel & Marvel [2010] FamCAFC 101, the Full Court said:
“122. In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
‘[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.’ “
The role of the judge in deciding interim hearings is often very difficult, as the judge will be faced with affidavits containing vastly differing factual assertions on important issues. The task of the judge then becomes very complex. It has been described this way by the Full Court of the Family Court in SS & AH [2010] FamCAFC 13:
“100. The intuition involved in decision making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying on the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on the children in the event that a controversial assertion is acted on or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
So, the judge conducting an interim hearing should try to confine findings of fact to agreed matters, or matters where there is considerable corroborating material, and otherwise confine himself or herself to identifying the matters of factual controversy and then proceeding by reference to the probabilities of the competing factual claims and the impact that they have on, for example, the children.
The role for solicitors is to present the evidence that is expected to be controversial with as much corroboration as possible. Much of the corroboration for interim hearings is found in subpoenaed records, but if there are other witnesses who can corroborate the evidence of the relevant party, they should be approached to make an affidavit on behalf of that party.
When interim hearings have such a significant impact on how a case will ultimately turn out, the effort and skill that needs to go into the preparation for an interim hearing cannot be underestimated.
Written by
Stephen Rugendyke
Special Counsel
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