The Views of Children in Parenting Matters
Parenting matters are determined based on a court’s assessment of what is in the best interests of the child or children. The Family Law Act sets out a number of factors that are to be considered in assessing what is in the best interests of a child. Once of these considerations is to take into account the views of children if they are known. However, it is not always possible to ascertain the child’s views or for these to be taken into consideration. For example, this may be because the child is too young to articulate views or declines to express their position. However, where a child does express a view, the court must consider the child’s view in their decision, giving the appropriate weight to this view in accordance with their age and maturity and the circumstances in which their views were expressed.
How do children express their views?
In family law Courts, children are not allowed to participate directly in the proceedings. This is to ensure that they are unnecessarily burdened. However, various methods exist for courts to obtain the views of the children indirectly. These include:
- Ordering the preparation of a Family Report. A Family Report is prepared by a psychologist or social worker appointed by the court who interviews all the parties involved, including parents, children and other family members. The report writer assesses the family situation and makes recommendations for suitable parenting arrangements. Family Report writers will often ask the children where they would like to live and what arrangements they would like to have for contact with each parents. The report writer will ask appropriate questions to gather the above information depending on the age and maturity of the child as well as on the family situation.
- Appointing an Independent Children Lawyer (ICL) to represent the children’s best interests to the court. An ICL does not act on the instructions of the children, as other lawyers act on the instructions of their client. Rather the ICL arrives at their own assessment of what is in the children’s best interests. An ICL is an independent voice in the proceedings, who may or may not share the position of a parent and who may or may not share the views of the children.
- Appointing a Family Consultant to meet with and talk to the parties and prepare an assessment for the court. This assessment considers the children’s experiences and development, the family circumstances and other issues relevant to the case. The family consultant will then make recommendations for arrangements that will best meet the children’s future care, welfare and developmental needs.
- Hearing evidence of what children have said about matters relevant to their welfare. An exception to the rule against hearsay exists in relation to representations made by children under Section 102NM of the Family Law Act. This exception exists to make sure children do not have to give evidence in parenting proceedings themselves, except where it is absolutely necessary.
Can a child be called as a witness?
It is rare for a child to give oral evidence in a parenting matter.
If a party wants to call a child as a witness in a hearing, they must obtain the court’s permission to do so. The court will consider the following matters when deciding whether to allow the child to be called as a witness:
- Any advantage to the proceedings of hearing the child’s evidence;
- Any damage giving evidence may do to the welfare of the child;
In assessing the first consideration, the court will take into account what other evidence (if any) is available, what issues need to be decided, the age and maturity of the child proposed to be called as a witness and how much time has passed since the events in question occurred.
In assessing the second consideration, the court will consider the age and maturity of the child, the views of their guardian, the child’s wishes and feelings and what support the child received from family or others.
If a child is called as a witness, they will usually be allowed to give evidence as a ‘vulnerable witness’. This may mean giving evidence via video link from another room in the court house.
How much weight will the children’s views be given?
The court must consider the views expressed by the children in deciding whether to make an order in relation to the children under Section 60CD of the Family Law Act.
How much weight is given to a child’s views will depend on the following factors:
- The age and maturity of the child;
- How strongly their views are held;
- How long they have held the views for;
- Whether they appear to have been pressured to form the views;
- The circumstances under which the views were expressed.
Parties to parenting matters often think that there is a particular age at which a child is allowed to make their own decision about where to live. In reality, the views of children are only one consideration the court is required to factor into their decision but will never be the only factor that determines the outcome. Rather it is the parent’s responsibility to make decisions in the best interests of the children until they attain the age of 18.
If you require advice or assistance with a family law matter, please contact Armstrong Legal.
