In parenting matters, conducted in the Federal Circuit and Family Court of Australia (Court), ensuring the voice of the child is heard in a safe and age-appropriate way is important.
The Court must determine what arrangements are in each child’s best interests and in doing so, one of the factors it considers is any views expressed by the child.
Although children do not appear in Court, the Court employs various strategies to gather essential information regarding their views and perspectives. Some of these are set out below.
What is a children’s Lawyer?
An Independent Children’s Lawyer (ICL) is appointed by the Court, tasked with monitoring, and exploring the child’s welfare and presenting to the Court an independent view of the child’s wishes and best interests.
Recent changes to the Family Law Act 1975 (Cth) require an ICL to meet with the children they represent and to ensure that they are given an opportunity to express their views.
What is a child expert?
Court proceedings also often involve a Court Child Expert, or alternatively a Family Consultant, typically a social worker or psychologist with specialised knowledge in children’s needs amidst separation and parental conflict.
The child expert talks to the parties and observes interactions between parents and children, tailoring activities to the child’s age, maturity, and family situation. They may also consult with other significant figures in the child’s life, such as teachers or grandparents, to gain further insights to the child’s best interest. The child expert then compiles and presents an independent report to assist both families and the Court in making decisions aligned with the child’s best interests.
It is crucial to allow children to express themselves freely during this process, as any attempt to influence their statements could pressure them to convey a specific viewpoint. This ensures that the Court process effectively considers and respects the voice of the child in an age-appropriate way.
In more complex cases, the Court may appoint an expert psychologist or psychiatrist to take on this role and prepare a report after meeting with the parties and the children.
Managing safety concerns
Safety remains paramount when participating in the Court process. If there are concerns regarding personal or child safety, it’s crucial to notify the Court beforehand. This allows for necessary precautions to be put in place, such as arranging a private room or utilising online attendance services. By proactively addressing safety concerns, everyone involved can participate in the legal process with greater peace of mind.
What about outside of Court?
Most parents are required to participate in family dispute resolution, or mediation, before making an application to the Court. They now have the option to engage in Child Inclusive Mediations (where the child is at least 5 years of age) which allows for the child’s voice to be heard through the mediation process.
This will involve an agreed child consultant spending time with the child to talk about their thoughts and feelings and, with the child’s consent, providing feedback to the parents and the mediator about their views and experiences.
Is your child being heard?
The Family Law system has established a meaningful framework to ensure that children’s voices are heard in parenting disputes and Court proceedings.
This is aimed at ensuring that children’s perspectives are effectively communicated and considered throughout the legal process, providing reassurance that their voice will not be overlooked when determining what arrangements are in their best interest.
If you have any questions, or if you are concerned about that your child is not being given the opportunity to express their views, you can contact our Family Law Team including Accredited Specialist Lisa O’Leary on (02) 9525 8688.
