Parenting matters before the Family Court of Australia or Federal Circuit Court of Australia are organically complex as they deal with what is arguably the most important part of someone’s life, their family and children.
It is therefore an understandable impulse to want the Court to listen and understand what the children want and feel they need. It is of importance that the Court is at all times guided by the Family Law Act 1975 to make Orders that are in “the best interest of the children”. Further, there is a wealth of tools to determine what is in the best interest of the children, without bring them into a Courtroom.
As all children develop differently, there is no clear answer as to what age a child has to be before their views can be admitted into evidence. Alternatively the Court exercises a discretion to give varying degrees of weight to what children report as their views, this can be due to things such as a child not seeing one parent for a period of time, a child basing their views on things of differing importance i.e. one parent gives chocolate and the other doesn’t.
To obtain views from the children the Court utilises things such as a Child Inclusive Conference or a Family Report, this is where the children meet with a consultant of the family court in a calm setting and with the presence of each parent. It not only permits the child to feel safe and to speak openly but it provide the Court with the ability to have insight into how children interact with their parents.
Lastly, parties can subpoena records of things such as school counsellors, child psychologists and the like. This permits the Court to view objective evidence of what the children report are their thoughts and concerns.
Ultimately there is no clear cut rule of how and when the Court will “listen to the children’s wishes”, it is a case by case concept and as it is arguably the most important part of someone’s life, it should be treated with care and caution.
If you have any questions about children’s involvement in Court proceedings, talk to one of our experienced family lawyers today.
Written by Lauren Hitchen.