Too often lawyers witness first hand the trauma children go through during and as a result of parental separation.  This is evident in a recent report released by The Honourable Sussan Ley MP directly linking mental health issues in children and adolescents to family functionality.  This article discusses those findings and how some in the legal profession are proposing to turn more to arbitration in a bid to alleviate or reduce the risk of knock on effects to children.

In August this year, Federal Minister for Health, The Honourable Sussan Ley MP released the Mental Health of Children and Adolescents, a report on the second Australian Child and Adolescent Survey of Mental Health and Wellbeing.

The report was based on a survey conducted in the homes of over 6,300 Australian families with children and/or adolescents aged between 4 and 17 years providing data as to the:

  • mental health of young Australians;
  • prevalence and type of mental health problems;
  • impact of those problems on families and young persons themselves; and
  • role of health and education services in providing assistance.

The first survey was conducted in Australia in 1998 and released in 2000.

Comparing details from the first survey, this report found that the overall prevalence of mental health disorders in children and/or adolescents appears to be stable, but there is still approximately one in seven children and adolescents who have experienced a mental health disorder. Pleasingly, the report highlights an increase in the take up of support assistance available.

The reported rates for depression, self-harm and suicidal thoughts in teenagers were particularly worrying.  Approximately one in ten teenagers indicating that they have engaged in self-harming behaviour and three quarters of those reported having done so in the previous 12 months.

Based on reports made by teenage girls aged 16 to 17 years, nearly one in five were found to meet the clinical criteria for depression and around one quarter reported deliberately injuring themselves at some point in their lives.

The report seeks to highlight the strong relationship between socioeconomic disadvantage and higher rates of mental health problems. The data collected was analysed in relation to social and demographic characteristics including family type, household income, parent education, area of residence etc.

It was disappointing that the report did not specifically analyse the relationship between family breakdown and/or the existence of parental dispute and the mental health problems facing the children and/or adolescents who participated in the survey.

As noted above, the survey did assess mental health statistics by family type and family functioning, which provided indication of the potential effects that parental dispute may have in relation to the health of the children in such families.

With regard to family type, the report assessed the prevalence of mental health disorders amongst 4 to 17 year olds in different types of households including, inter alia, two parent families, step-families and blended families. The rate for mental disorders in two parent families was 11.8% of the children surveyed, however, in step and blended families that rate increased significantly to 18.3% in step-families and 20.2% in blended families.

The report similarly provided information regarding the prevalence of mental health disorders amongst 4 to 17 year olds by level of family functioning. The range of family functioning summarised from very good to poor. In those families where there was perceived very good family functioning, the prevalence of mental disorders was 10.9%, however, this tripled to over 35.3% in families where the level of family functioning was rated as poor.

The data collected in the report is not surprising and it seems trite to draw a correlation between parental dispute and poor family functioning with mental disorders in relation to children and adolescents in those households.

What is surprising is the ongoing failure by successive federal governments to acknowledge the importance of the connection between the two areas and provide greater levels of financial assistance to the Federal Circuit Court of Australia and Family Court of Australia system to enable these bodies to determine more cases and expedite the hearing of cases involving parental disputes. Increased funding to the Federal Circuit Court and Family Court system could reduce the stress, trauma and mental health disorders faced by the children and adolescents involved in the cases before the courts.  

The lack of resourcing in both the Federal Circuit Court and Family Court has now reached crisis point, and without a dramatic change in policy, the situation is unlikely to improve in the short to medium term.

Family lawyers and family law litigants need to begin looking at alternative options to ensure parental disputes can be dealt with efficiently and effectively to better assist all members of the family unit affected by separation, but particularly children and adolescents.

In Queensland, the judiciary and the profession have embraced mediation with great success. According to the Family Court of Australia’s Annual Report of 2014-2015, only 15.3% of cases in the 2014-2015 year required a judgment after a final hearing in that court.  It is understood that the settlement rates are similarly high for the Federal Circuit Court. Of course, many matters settle prior to any court proceedings being commenced.

Talk amongst family lawyers is that it is time for family lawyers and family law litigants to embrace arbitration in relation to property matters.  The Family Law Act 1975 (Cth) already affords parties the opportunity to undertake arbitration in relation to property matters if they are so inclined, however, the take up on arbitration has failed to gain traction in recent years.    

Could arbitration be extended to relate to parenting matters? Whilst amendments to the Act may be required, arbitration of parenting matters could be the logical next step in the privatisation of family law services. Arbitration has the potential to provide expeditious results to family law litigants and allow our overcrowded courts the time and resources to judge only the more complex or novel cases that require judicial intervention.