Parenting matters are determined based on the court’s assessment of what is in the best interests of the child. The Family Law Act sets out what factors must be considered in assessing what is in the best interests of a child and these include the views of children where they are known. In many cases, it is not possible to ascertain the child’s views or wishes or for these to be taken into consideration by the court. This is often because the child is too young to articulate them. However, where a child does express views, the court must consider and give weight to them in accordance with the age and maturity of the child and circumstances in which they were expressed.
How do children express their views?
Courts hearing family law matters do not allow the direct participation of children in the proceedings. However, various methods exist for the court to obtain the views of children indirectly. These include:
- Ordering the preparation of a Family Report. A Family Report is completed by a psychologist or social worker who interviews all the parties, including the parents, children and any other significant people. The report writer assesses the family situation and makes recommendations for suitable parenting arrangements based on his or her observations. Family Report writers will often ask the views of children as to where they would like to live and what arrangements they would like for contact with their parents. How a report writer asks these sorts of questions depends on the age and maturity of the child as well as on the situation and what form of questioning they consider appropriate.
- Appointing an Independent Children Lawyer (ICL) to represent the best interests of the children to the court. An ICL does not act of the instructions of the child, as other lawyers act of their client’s instructions. Rather they arrive at their own assessment of what is in the children’s interests. An ICL provides an independent voice in the proceedings. They may or may not share the position of either parent and they may or may not share the views of children.
- Appointing a Family Consultant to meet with the parties and prepare an assessment for the court.
- Hearing evidence of what a child has said about matters relevant to his or her welfare. There is an exception to the rule against hearsay in relation to representations made by children (Family Law Act, Section 69ZV). This exception exists to ensure children do not have to give evidence themselves, except where it is absolutely necessary.
Can a child be called as a witness?
It is rare for a child to be called to give evidence orally in a family law matter.
If a party does want to call a child as a witness, they must obtain the court’s permission to do so. The court will decide whether to allow the child to be called as a witness based on the following considerations:
- Any advantage the child’s evidence will bring to the proceedings;
- Any damage giving evidence may do to the child’s welfare;
In assessing the first consideration, the court will consider what other evidence is available, what issues have to be decided, the age and maturity of the child and how much time has passed since the events in question.
In assessing the second consideration, the court will have regard to the age and maturity of the child, the views of the child’s guardian, the child’s wishes and feelings and what support the child has from family or others.
If a child is called to give evidence, he or she will usually be allowed to do so as a ‘vulnerable witness’ and measures will be put into place to keep children out of the court room itself. For example, they may be ordered to give evidence by way of video link, from another room in the court house.
How much weight will the views of children be given?
The court is required to consider any views expressed by a child in deciding whether to make an order in relation to the child (Family Law Act, Section 60CD).
How much weight a child’s views are given depends on a number of things. The age and level of maturity of the child, how strongly they hold their views and how long they have held them for; whether they were pressured to form the views and the circumstances in which the views were expressed will all be taken into consideration.
Parties to parenting matters often think that there is a magic age at which a child is allowed to make his or her own decision about where to live. In reality, the views of children are taken into account increasingly as they grow and mature and depending on the circumstances of the case, but will never be the only factor to determine the outcome.
If you require advice or assistance with a family law matter, please contact Go To Court Lawyers.