Published: 07 May 2018
Author: Stringer Clark

How Are Children Heard In Family Law?

In custody disputes clients often ask me how the children’s views are taken into account during the court process. If parents cannot agree about the ongoing care arrangements for the children, then the matter is placed in the hands of a Family Court Judge to decide about these issues.

So, how does the Court consider the wishes of the children?

Decisions made by the Court about whom a child should live with are based on what is in the best interest of the child. One factor to consider in determining what is in the best interests of a child are the child’s wishes. Of course, the child needs to be of communicable age for their views and feelings to be taken into account.

There is no specific age that The Family Law Act dictates is an appropriate age for the child’s views to be taken into account. The amount of consideration that the court places on the child’s views will depend on the child’s age, the child’s ability to communicate their wishes and the child’s ability to understand what is going on. This is a big ask for any child as often the adults struggle to fully understand what is going on in family law dispute.

Children are not permitted to give evidence in the Family Court. Giving evidence in Court is often too much for an adult to bear, so to ask a child to withstand the stress and strain of giving evidence would be totally inappropriate.

How are a child’s views taken into account?

1. If the matter is within the court system the child’s views are taken into account in the main by the Family Report System. A Family Report is a document written by a family consultant (usually a psychologist) who is appointed by the Court. Usually the family report writer will interview the parents separately, the children separately and the children and each respective parent together. It provides an independent assessment of the issues in the case and can help the judge hearing the case to make decisions about care arrangements for the child/ren. It may also help the parties reach an agreement. The family report writer will write a report for the court. The report will contain the family report writer’s views as to what is in the best interests of the child/ren.
2. A family Consultant (usually a psychologist or counsellor) who is employed by the Court can, at the direction of the Court, meet with the children and the parents at the Court. The family consultant would then provide either oral evidence to the Court or a written report to the Court in relation to their findings.
3. The appointment of an Independent Children’s Lawyer (ICL). An ICL can only be appointed by the Court. The ICL is a lawyer who is appointed to represent the children. If the children are of suitable maturity and age, the ICL can meet with the children and hear their views. The ICL can then pass on the children’s views to the Court. The ICL does not act on the child’s instructions but their role is to gather information to ascertain what is in the child’s best interests. For example, this may include gathering information from the child’s school, doctor or counsellor.

There are many cases in which the Court considers children’s wishes, however it really depends on, the different circumstances, the maturity of the child’s views, the child’s age and their ability to clearly express their views. The Court will take into account the children’s wishes, but it is not the only issue that the court considers when working out whom a child should live with. After considering all the evidence in totality the court may take the view that what the child thinks is best for them is in fact not in their best interests.

Importantly a child cannot be forced to express their wishes. If a child does not want to say what their view is they do not have to. The Court is focused on not placing undue stress on children. It is vitally important that the child does not feel that the weight of the decision as to where they live is placed on their shoulders. A decision as vital as this should never be placed in the hands of the child.