Hearing the Voice of the Child in Parenting Matters

7 May 2020
Paul Lewis, Partner, Sydney

In parenting cases, the ”best interests of the child principle” is the paramount consideration, whether parents are trying to reach agreement on arrangements at mediation or when they have a dispute before the Court.

In determining what is in the best interests of the child, the Court has regard to two primary considerations, namely, the benefit of the child having a meaningful relationship with each parent and secondly, protecting the child from harm, both physical and psychological, and being exposed to abuse, neglect or family violence. Where these primary considerations conflict, the protection of the child must take priority.[1]

There are also a number of additional considerations that the Court is required to take into account, one of which are the views expressed by the child (if any) and any factors that the Court thinks are relevant to the weight it should give to those views. Relevant factors include the child’s age, maturity, level of understanding and ability to express their views. There is no specific age at which the Court will take into account the child’s views, rather the Court may consider each individual child’s personal circumstances, history and stage of development when considering the weight to place on any views expressed by a child.

During the family law process, children often want to know what is going on and many children want their thoughts and feelings to be understood and acknowledged by their parents. The challenge for parents, lawyers, mediators, the Courts and the family law system as a whole is the ”how” question. How do you give a voice to children in parenting matters?

In an article titled ”Children’s Participation in Family Court Litigation”, Professor Richard Chisholm AM (retired former Judge of the Family Court of Australia) listed the variety of ways in which children may want to have their voice heard and participate in decisions about their parenting arrangements or welfare and development.[2] The breadth and depth of examples are simple and powerful; they include:

    1. children may talk about how they understand and experience the situation, for example, that they hope their parents will live together again, or that they feel it is their fault;
    2. they may describe particular incidents;
    3. they may be eager to emphasise their wish that their living arrangements should be ‘equal’ to make sure they are not seen as preferring one parent over another;
    4. they might express their wishes about outcomes, e.g. to stay at a particular school;
    5. they might want to express their feelings, e.g. tell a parent that they miss that parent;
    6. they might want to discover information, e.g. why do we stay with Grandma every Sunday?;
    7. they might want to bargain, e.g. I’ll go to visit Aunty Beryl but only if I can join the after-school soccer competition and play with Jake afterwards;
    8. they might seek reassurances or promises, e.g. that they will start at their preferred high school next year; or
    9. they may not want to engage in the process at all, or be seen to have a view, for fear of the consequences of them expressing their opinion or because they simply want their parents to make the decision for them.

It is desirable for parents to be aware of their child’s views as it may help parents to better understand their child’s needs and interests, consider the future consequences of decisions made in the present and help parents to reach agreement. The voice of a child may shape the parenting plan or consent orders that the parents agree upon as being best for the child after family breakdown.

Parents need to be careful about how they approach conversations with their child about the child’s future living arrangements. Family counsellors and psychologists recommend that children be given an ”age appropriate” explanation of their parents’ separation. Mediators make a similar recommendation when they refer to the need of children to receive a consistent ”separation story” from each of their parents. Best avoided are:

    1. a parent, or other family member, overly questioning a child about the child’s views or wishes in relation to the child’s future living arrangements;
    2. a climate within the family where the child feels like he or she is having to decide upon their future living arrangements, and potentially choose between their parents; and
    3. a situation where the parents, or either of them, is later seen as having interrogated their child, or seen to have unduly influenced their child’s views about future living arrangements or about the other parent’s relationship with the child.

Early legal advice is recommended to assist parents going through family breakdown, including about how they should approach any conversation with their child or children around the separation, or what their child or children’s wishes may be in this regard, because every family is different and professional advice must be tailored to the particular family.

The Court can also benefit from understanding a child’s views when making decisions in parenting matters. There are three ways that the Court informs itself of views expressed by a child in cases under the Family Law Act[3]:

    1. through reports prepared by family consultants. This involves the children, each parent and important family members attending a family consultant for an interview where they subsequently prepare a report which notes their observations of the interview, areas of disagreement or controversy and concludes with recommendations in respect of parenting orders that may be in the best interests of the children;
    2. through an Independent Children’s Lawyer (ICL) who may be appointed to act as a separate legal representative for the child. The role of the ICL is to form an independent view based on the evidence available in the proceedings of what is the best interests of the child. Any views expressed by the child to the ICL must be presented to the Court however their role is not to act on the child’s wishes but rather advocate for their best interests even if this means making recommendations that are contrary to the views expressed by the child[4]; and
    3. the Court can also make findings of fact about a child’s views by any other means it thinks appropriate. For example, through independent third party records such as notes from a child psychologist, school or general practitioner which provide a contemporaneous historical record of any views expressed by the child. A far less common example is a judicial meeting between the child and the judge that occurs in the Judge’s chambers, usually, in the presence of a family consultant who prepares a report on what was said during the meeting. It is extremely rare however for a Judge to meet with a child or children in Australian family law jurisdictions.

Whist the Court has a wide scope to be informed of the views of children, there is nothing requiring the Court or any other person to compel a child to express their views[5]. The Court is understandably cautious of the risk that views expressed by the child may have been influenced by a parent or parents, or other family members or third parties.[6]  The Court is also careful to guard against the child being exposed to ‘systems abuse’ whereby the child becomes embroiled in ongoing interviews or contact with experts connected with the family law system. In this context, there is a difference between confidential family counselling that has a therapeutic objective, and reportable family assessments and other similar interviews, too many of which may burden the child with the pressures and uncertainty of litigation.

Whilst the Act is explicit in respect of the Court’s discretion to take into account a child’s views, the Courts are generally mindful that the views expressed by a child are one consideration among many factors that are assessed when determining what is in the child’s best interests. In simple terms, any views expressed by the child will not necessarily be the determining factor when a Judge is required to make parenting orders in those cases where the parents cannot reach agreement about final parenting orders.[7]

Please contact one of the Partners or other lawyers in our Family & Relationship Law team if you have any questions about parenting after separation or require assistance in preparing for family dispute resolution or Court.

 


Authored by:

Paul Lewis, Partner
Katherine Evans, Associate

The authors would like to thank Polina Safonova for her assistance in preparing this article.

 


 

[1] Section 60CC of the Family Law Act 1975 (Cth).

[2] R Chisholm, ‘Children’s Participation in Family Court Litigation’ (1999) 13 Australian Journal of Family Law 197.

[3] Section 60CD of the Family Law Act 1975 (Cth).

[4] Section 68LA of the Family Law Act 1975 (Cth).

[5] Section 60CE of the Family Law Act 1975 (Cth).

[6] Bondelmonte v Bondelmonte & Anor [2017] HCA 8.

[7] Vigano & Desmond (2012) 47 Fam LR 552; [2012] FamCAFC 79.

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

Get in touch