How will my child's views be taken into account in parenting cases?

In parenting cases, family law legislation places a child's "best interests" at the heart of decision making. In fact, a renewed focus on the best interests of the child is stated to be a key factor driving recent amendments to the Family Law Act.¹ However, what is deemed to be in a child's best interests is not determined solely by reference to the child's views, and in some cases, the views of children will not be considered a relevant factor. This article considers how children's views are dealt with in parenting cases, as well as the avenues through which the views of children can be heard.

Given recent amendments to the Family Law Act, most of which are due to come into effect on 6 May 2024, this article will consider the treatment of children's views under both the current and future legislative framework.

How are a child's views obtained?

Independent reports

There are two key methods by which a child's views can be brought before the court. The first is through family or child impact reports. These reports are prepared by an independent third party, usually an experienced social worker or psychologist, who examines the dynamics of a co-parenting relationship and makes recommendations intended to promote the child's best interests. These independent reports will be sought in the vast majority of contested parenting cases and are a helpful piece of evidence for the court or for the parties to consider whilst privately negotiating.

There are two main types of reports:

1. Child impact reports (prepared by a Court Child Expert), which are usually shorter reports and can be court-funded (at no cost to the parties); and
2. Family reports (prepared by a private Family Report Writer), which are usually more comprehensive and generally paid for by one or both parties.

When preparing these reports, the report writer will conduct a series of interviews, usually meeting with each parent individually as well as the child (if the child is willing). It is at this point that a child who is interviewed will be given the opportunity to express their views, however they will not be compelled to do so. Depending on the circumstances, the family consultant may also observe interactions between the child and each parent.

For helpful information about how to prepare for the report writing process, please see this article.

The role of Independent Children's Lawyers

The other key way that a child's views are obtained in parenting proceedings is through the appointment of an Independent Children's Lawyer (ICL). An ICL is appointed by the court in cases where there are significant risk factors or complex issues present, including abuse, neglect, high conflict between parents, family violence, mental health issues or where there are allegations made as to the views of a child, and the child is of a mature age to express their views.² The role of an ICL is to represent a child's best interests and provide a perspective that is independent of the parties in relation to parenting arrangements.

Under the current regime, an ICL has discretion as to whether to meet with the child who is the subject of proceedings. Interestingly, data published in 2014 revealed that when asked to reflect on their three most recent ICL cases, just over one third of ICLs reported that they often or always had direct contact with the children or young people in their cases and 54% reported that they engaged in such contact rarely or sometimes.³

In contrast, under the amended legislation, ICLs will be required to meet with the child whose interests they are appointed to represent and give the child an opportunity to express any views on matters relating to the proceedings.

Exceptions to the new statutory requirement to meet with children apply where:

1. a child is under the age of five years (unless deemed appropriate);
2. a child does not wish to meet with the ICL or express their views; and
3. if there are exceptional circumstances that justify not meeting with the child, such as where performing the duty would expose the child to a risk of physical or psychological harm that cannot be safely managed or would have a significant adverse effect on the wellbeing of the child. The court must determine that such exceptional circumstances do exist before making a final order.

Under the amended legislation, the ICL has discretion on the timing, frequency and method of engagement with the child, subject to any order made by the court. If the child expresses a view on matters which relate to the proceedings, the ICL is now required to ensure these views are put before the court. Previously, case law provided for the ICL to have discretion in advising the court of any views of the child.

For further information about the implications of the expansion of the ICL's role, please see this article.

Consideration given to a child's views

Once a child's views are obtained through one or both of the methods described above, the court will consider the weight to be given to such views as part of the broader inquiry as to what is in the best interests of the child.

Under the current Family Law Act, when determining a child's best interests the court is required to consider "any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views". The situation is essentially the same under the recently amended Family Law Act, which provides that one of the six core considerations in relation to what is in the best interests of a child is "any views expressed by the child". For context, other factors relevant to a child's best interests under both the current and future regimes include the capacity of each parent to provide for the child's needs and the benefit to the child of having a meaningful relationship with both parents.

Whilst a child's views are relevant under both the current and future regimes, as is made more explicit under the current legislation, factors such as a child's age, maturity and level of insight and understanding will affect how much weight a court will likely give to a child's views. For instance, a court may give significant weight to the views of a mature teenager, who is consistently expressing a strong opinion about parenting arrangements. In many cases this will be a pragmatic approach in circumstances where parenting orders made contrary to such views may be difficult to enforce because the child refuses to adhere to them. In contrast, the views of a young child, or a child who is determined to be experiencing strong influence or alignment with a particular party, are unlikely to be given significant weight.

Summary

The court has two key mechanisms for obtaining a child's views, one or both of which can be employed in any given parenting case: independent reports (child impact or family reports) and the newly expanded role of the ICL. However, as noted above, an ICL is not appointed in every parenting case nor will every child wish to express their views to a family consultant or ICL. Even in cases where a child expresses their views, the weight afforded to such views will vary according to the circumstances of each case.

Indeed, whilst the family law regime acknowledges that a child's wishes may be a relevant factor in determining their best interests (and has accordingly made provision for these views to be captured through independent report writers and ICLs) under both the current and amended legislation, determining the best wishes of a child involves a broad multi-factorial inquiry that aims to balance multiple and often competing factors, only one of which is the views of the child involved.

If you would like assistance with a parenting matter, please contact a member of our experienced family and relationship law team.

¹ Attorney General's Portfolio 'Passage of Landmark Family Law Reforms', The Hon Mark Dreyfus KC MP (Web Page, 19 October 2023)

² Federal Circuit and Family Court of Australia: Independent Children's Lawyer

³ Australian Institute of Family Studies, The Role and Efficacy of Independent Children's Lawyers, referring to Kaspiew et al., 2013

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