Introduction
Parental separation can be deeply distressing for children. When parents become entrenched in conflict, children may be dragged into a parental “feud”, with their own wishes and experiences often overlooked. Part VII of the Family Law Act 1975 (Cth) governs parenting arrangements and empowers the court to make orders concerning parental responsibility, living arrangements, communication and time spent with each parent, maintenance and any other aspect of a child’s care and development. But to what extent does the child have a say in these decisions?
The Paramount Consideration of the Court
Under the Family Law Act 1975 (Cth), the child’s best interests are the paramount consideration of the court in making parenting orders. The court will consider a range of factors in determining what is in the child’s best interests, including:
- Promoting the safety of the child and protection from family violence, abuse, neglect or harm
- Any views expressed by the child
- Developmental, psychological, emotional and cultural needs of the child
- The benefit to the child of maintaining a relationship with both parents and other significant people
- Any other matter relevant to the particular circumstances of the child
These factors guide the court’s broad discretion in determining parenting arrangements that promote the child’s welfare.
The Role of an Independent Children’s Lawyer
In some cases, the court may appoint an Independent Children’s Lawyer (ICL). The ICL’s role is to represent the child’s best interests and ascertain any views expressed by the child. The ICL then provides an independent view of what arrangements are in the child’s best interests.
Court Children’s Service
The Federal Circuit and Family Court of Australia also offers the Court Children’s Service (CCS). The CCS is composed of psychologists and social workers who assist families and the court in determining what arrangements are in the child’s best interests. The CCS provides a range of services including conducting interviews and assessments with families, preparing independent reports, and helping parents understand the needs of their children after separation.
Family Dispute Resolution
Before commencing court proceedings, parents are required to participate in Family Dispute Resolution (FDR) or mediation. These pre-action processes are designed to assist parties to resolve parenting matters and reach an agreement without the stress, cost and formality of litigation, which means less emotional burden on the child.
Child-inclusive FDR models are also available, enabling children’s views, needs and preferences to be taken into account. Notably, the FDR Unit at the Legal Services Commission of South Australia offers a Child Focused Consultant Program where parties can hear views expressed by the child. In some cases, an independent Child Consultant may be arranged to identify and communicate the child’s views.
A Framework Designed to Promote Children’s Views
Australia’s family law system is built on a strong framework that ensures children’s voices are heard. From early, pre-action steps like FDR, through to formal court proceedings involving ICLs and the CCS, children’s views and interests remain central to the decisions made about them.
If you require advice on parenting matters, contact Wadlow Solicitors or call (08) 8212 2955 to schedule an appointment.
