Parenting Matters - when do my children get a say?

A question that is commonly asked by parents when going through a separation is “so when do my children get a say?” or “what age do children get a say?”. There are a number of ways in which the views of a child can be considered.  

A lot of families are surprised to find that there is no actual ‘set age’.  The good news is that the family law system in Australia must give paramount consideration to ensure the best interests of a child are met. This means that although children aren’t automatically ‘given a say’, their best interests are very carefully considered when making any decisions regarding them.

In determining how this happens, various considerations must be factored. The two major ones are:

1. Ensuring that the child/ren have a meaningful relationship with both parents; and
2. Protecting a child/ren from physical or psychological harm, whether they are being subjected or exposed to abuse, neglect or family violence.

In some circumstances, there will be Domestic and Family Violence within a relationship.  This does not automatically mean that the Perpetrator will not have a relationship with their child/ren.  This is where matters become complicated, and risk factors must be considered.  There can be ways for a child to safely have a meaningful relationship with the other parent, even when the primary caregiver does not believe they should.

Contact Centres

Many towns will have something called a ‘contact centre’. This is a place where a parent or guardian can have supervised contact time with a child.  This can occur either onsite or offsite.  It is more common for onsite visits to occur, especially if there are major concerns regarding the safety of the children. 

While it may seem daunting, the contact centre is designed to be a safe but fun environment for children to attend.  Many centres will have plenty of age-appropriate toys and games, as well as supervisors who can observe the interactions between the parent/guardian and the child/ren and help out if required. 

In cases where visits are offsite, this allows the parent/guardian to go to places such as the local park or the beach to interact and spend time with the child/ren while a supervisor can observe from a safe distance.

You do not need a court order to arrange visits at the contact centre.  There are many parents, concerned about the safety of their children, who will arrange for visits to occur through the local contact centre.  The contact centre has staff who make notes of the interactions between the parent and child and there are safeguards in place to ensure that parents do not have to see each other at the changeover.

How are children's views provided to the court:

There are a number of ways in which the views of a child can be considered.

Court Child Expert and Family Report Writer

If there is a dispute regarding parenting matters a court can order families to have a Child Impact Report, or a Family Report completed to assist the court on an interim basis.  A Child Impact Report is prepared by a Court Child Expert following an order being made by the Judge or Registrar.  This Court Child Expert will interview the parents separately and depending on the age of the children may also interview them.  The Court Child Expert may also observe the child/ren with each parent.  Sometimes the interviews with the parents are first and with the children at a later date.  The child/ren are provided an opportunity to talk about their experiences and feelings however, they do not have to talk if they do not want to.  Once the Court Child Expert meets with all the parties, they prepare a Child impact Report which is provided to the Judge or Registrar who has ordered the report, and it is then released to the parties of the dispute. 

A Family Report is different in that it is a much more comprehensive interview process and more lengthy report.  Family Reports are often prepared on a private basis.  Family Reports are ordinarily required prior to a matter progressing to a final hearing (this means it has been unable to be resolved early in the court process).  It is also more in depth than a Child Impact Report, interviews can last for over a day and there may be interviews with other significant people such as grandparents, step siblings etc.  The Family Report is then provided to the court and subsequently the parties and is highly valued piece of evidence as it is often the only piece of impartial and independent evidence the court can have when making orders.

Independent Children’s Lawyer

The role of an Independent Children’s Lawyer (or ICL as they are commonly referred to) is to represent a child or children’s best interests.  An ICL is usually appointed when there are numerous complex issues such as allegations of abuse or neglect, family violence, high levels of conflict and so on. 

The recent amendments to the Family Law Act require an ICL to meet with the children they are representing.  The ICL must meet with the children, and give the children an opportunity to express their views about matters in the proceedings (such as the proposed care arrangements).  There are some exemptions to the requirement for the ICL to meet with the children.  The ICL does not have to meet with the children if the children are very young (under five years of age) or if the children do not wish to meet with the ICL or express a view.  

The ICL must ensure the views of the children are presented to the Court, if the children express a view.  However, the ICL is not required to recommend care arrangements requested by the child.  The ICL will ultimately consider the views of the child in forming their own, independent perspective about what care arrangements are in the best interests of the children.   The ICL will provide a recommendation to the court to assist the Court in making a decision that is in the children’s best interests.

Can my children's views be heard without going to court?

There are a number of ways that the views of children can be heard without proceeding to court.  Parents will routinely outline what they say are their children’s views.  The challenge is that a parent will never be impartial and there is no certainty that what they are saying is accurate.  To get accurate and impartial information a third party needs to be involved.  This is frequently done through the use of a Child Inclusive Practitioner in mediation or the preparation of a private Family Report.  

Child Inclusive Practitioner

One great way to ensure that children have a voice when it comes to decisions surrounding their care is to find a Child Inclusive Practitioner.  When parties attend a mediation (see previous article “family dispute resolution/mediation?”), there are some services or private practices that offer a “Child Inclusive Mediation”.  This type of mediation can also be referred to as a “Child Centred Mediation”.  A Child Inclusive Practitioner will meet with the child/ren and have between one and two sessions with each child, depending on the practitioner.  Generally, a practitioner will meet with children from 5 – 18 years of age.  

During the sessions with the child/ren, the practitioner will use a range of different activities and skills to obtain information.  This information may be about parental conflict, school, social and emotional wellbeing, concerns or risk of harm or abuse etc.  The session is really centred around the child and can be completely confidential if the child wishes it to be (with the exception of risk of abuse or harm in which case Child Safety has to be notified).  

Most children want the chance to have a say when it comes to their care arrangements (as well as other things such as parental conflict) and are quite excited at the opportunity to be able to do this in a safe way.  The Child Inclusive Practitioner will determine how best to provide this information back to the parents at their mediation and helps ensure that the child/rens voice remains within the mediation, without the child having to physically be in the room. 

There are also scenarios where a teenager may be involved in the mediation itself, which is generally referred to as a child centred mediation, and if the practitioner deems it suitable and beneficial to do so.  The parents can then discuss (and hopefully) come to agreements around the topics and issues that the child/ren have raised.

The benefit to utilising a Child Informed Practitioner is that for some children, it is the first professional adult they have spoken to about their parents separation.  It can set forth positive relationships for any future professionals for the children such as counsellors.  When parents sit down to discuss any issues through mediation, and can hear what their children need from them, it allows each family to make the best possible decision tailored to them.  It also gives parents a good indication of how their children are really coping with the separation process.  

The additional advantage is that it can avoid parents drawing the children either innocently or deliberately into the dispute by asking too many questions of them or making children feel like the need to please one parent through their answer.  There is plenty of research to indicate that children will often feel less pressure to express a particular view if they are providing that view to someone who is independent. 

How do I know whether I should involve my children?

For some families, they do not wish for their children to be involved in their parenting dispute.  If you are unable to reach agreement together, or through the assistance of mediation, unfortunately you may not have a choice in whether this happens or not.  An important thing to remember is that no matter what stage you are at in a parenting matter, every person who will see the child/ren is a professional who has the best interests of the children very much in their minds.  You might be surprised at how many children want their voices to be heard in these situations and there is plenty of research to support this.

Each family will have different ideas and opinions on these professionals but it is always important to do your homework before forming an opinion that may be detrimental to your child.

If you have any questions or concerns about your children having a say in your parenting matter, there are some great resources and information on the Federal Circuit and Family Court of Australia website https://www.fcfcoa.gov.au/fl/children/overview.  We also encourage you to seek legal advice if you need any assistance or advice surrounding any family law matters.  You can contact our office to make an appointment with one of our solicitors to obtain advice on your situation on (07) 4963 2000 or through our online contact form below.