Children’s Wishes – A Child’s Involvement in Family Law Proceedings

28/01/2016

On many occasions enquiries are made and we act on behalf of parents of children who are involved in Family Court proceedings.  It is a very difficult time for the whole family and a very difficult time for the children.  The children at this very difficult time most often do not wish to disappoint either parent and will often say in discussions with a particular parent what they think that parent wishes to hear.  This causes great stress for the children.  Further it causes stress for the parents as they attempt to resolve the children’s issues and, in particular, the time that each of the children spend with each of the parents and other important members of the family.  Dennis Grant an experienced Family Law Lawyer has great experience in dealing with these difficult cases. 

The Family Law Act has evolved over some years in terms of how the children of parents separating and divorcing are able to participate in Family Court proceedings between their parents.  It is often the case that the parents may attempt to influence the children to express wishes more favourable to one parent than the other or express a wish to participate in the proceedings between their parents and to have their views heard.  The Family Law Act recognises that there is a difference between allowing a child to participate directly in the proceedings and allowing an opportunity for a child to express his or her views or have his or her views expressed by another person or have their best interests protected by another person.  The Family Law Act provides that a child’s wishes can be taken into account and in broad terms, the Family Court will take a child’s wishes into account but will give the weight to those wishes which is proportional to the child’s maturity and ability to express his or her wishes.  The Family Court will ultimately make a decision as to what is in the best interests of the child or children and this may not actually accord with the expressed wishes of the child. 

There are a number of methods which allow the Family Court to take into account the wishes of the children and to obtain evidence and material as to what is in the child’s best interests.

The Family Court has power to utilise a range of alternatives either separately or each together.  These include:-

  1. A Child Dispute Conference.
  2. Family Reports.
  3. Appointment of Expert Witnesses.

The Family Court receives evidence of the views of the children without hearing from the children directly in an affidavit or in a witness box.  The Family Court receives evidence from a Family Consultant in the Court following a Child Dispute Conference.  The Family Court can in various cases take evidence from an appropriately qualified Expert who may be asked to provide evidence on a particular issue.

The Family Court or parties with the consent of the Family Court may define the question or issue upon which the Family Court wishes to have the opinion of the Expert.  A party may make an application for the appointment of an Expert.  Usually the Family Court’s position is that if there is an Expert to be appointed there would normally be a joint “single” Expert appointed for the purposes of providing an opinion as to the issue that arises.  In rare circumstances the Family Court can hear oral evidence from a child or children in which the Judge usually speaks with and asks questions of the children in Chambers. 

The Family Law Act does not allow children to give evidence as a matter of right.  However, leave of the Family Court must be obtained before a child is called as a witness.  It is most rare for this to occur.  The application for leave would need to be supported by affidavit evidence dealing with the matters of fact that are relevant to the question as to whether the child or children should give evidence.  This in most cases would involve Expert evidence from an appropriately qualified medical practitioner for the issues to be considered.

The Family Law Act does allow for mature children to either initiate proceedings on their own behalf.

The experienced lawyers, in particular Dennis Grant of Watson & Watson, are regularly involved in cases involving the welfare of the children and the needs of appropriate evidence to enable the Court to determine those very important issues as to the welfare of the children.  These include such things as the time that the children spend with each parent, where they live, where the children go to school and other parenting matters which are very significant to the welfare of the children, in particular, following the breakdown of the marriage or the de facto relationship.

Please telephone Richard Watson or his Personal Assistant, Shereen Da Gloria, for an initial discussion and conference to discuss these very important issues.

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