When can children have their say?

Children’s involvement in the family law process

There are varying opinions as to what extent children should have their say in resolving parenting arrangements post separation. For some this might seem nonsensical given that the children themselves are the ones who will be most profoundly affected by the decisions being made. However, it has often been argued that children should not have to be exposed to parental conflict nor should they be put in the middle and forced to choose sides.

In recognition of the child/ren’s right to have their voice heard there are certain provisions of the Family Law Act that enable the child/ren’s views to be sought at varying stages in the proceedings.

The Independent Children’s Lawyer (ICL)

The court is given the power to appoint an Independent Children’s Lawyer (ICL) under section 68L of the Family Law Act.

The ICL is appointed for the sole purpose of representing the best interests of the child. Once appointed, the ICL will often arrange a meeting with the child/ren who are subject to the proceedings. During this meeting there will be an opportunity for children to have their say and express their wishes should they choose to do so.

In addition to speaking with the children directly, the ICL will often:

• speak with the children’s school teacher’s and principals and obtain copies of that child/ren’s school reports;
• obtain information held by Department for Family and Community Services and police insofar as it relates to the child/ren; and
• obtain copies of the child/ren’s medical, psychiatric and psychological records of the children and their parents.

Children have their say in Child Inclusive Conferences

Another way the court is able to ascertain the views of the child/ren is by ordering that the parties attend a child inclusive conference. The power to order such conferences is conferred by s11f of the Family Law Act.

A child inclusive conference is a meeting scheduled for both the adults and the children of the relationship to attend on a family consultant. The primary purpose for ordering a child inclusive conference in addition to obtaining the views of the children, is to help the court gain an understanding of the family dynamic and narrow down the issues in dispute.

Following the child inclusive conference, the family consultant will provide the court with a short memorandum containing an overview of their assessment. The consultant will also set out a series of recommendations aimed at addressing how the child/ren’s care, welfare and developmental needs may be until the matter is finally determined.

Family Assessment Report

Section 62G of the Family Law Act provides the court with the power to order the production of a family assessment report. Much like a child inclusive conference, when a family assessment report is ordered the parties and child/ren of the relationship are required to attend an interview or series of interviews with a family consultant.

The family consultant will conduct separate interviews with each parent and where appropriate with each of the children. Additional interviews may also be conducted with other significant people such as partners, grandparents, adult siblings and step or half siblings.

The child/ren will be given the opportunity to have their voices heard and express their wishes during this process however they will not be forced to do so.

In addition to speaking with the parties, the family consultant will also observe interactions between the child/ren and each of the parents in separate observation sessions.

Once the family consultant has had the opportunity to speak to and observe all of the parties, they will compile a report based on those discussions and observations. The family consultant will then make a series of recommendations regarding the child or children’s future care, welfare and development and may go as far as suggesting arrangements as to who the child/ren should live with and when.

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