The welfare of a child is a “paramount consideration” when making any decision that may affect them. This fundamental principle is formalised by the Family Law Act 1957 (‘FLA’), echoing the requirements of the Convention of the Rights of the Child to give children a voice in court, either directly or through a representative.
When directly participating in litigation, children are vulnerable to becoming a weapon of their parents’ disputes, used to achieve one party’s desired outcome.
Even when children act on their own interests, their insight may be limited by their age or maturity.
As a result, Australian courts prohibit children from being present at their parents’ court proceedings unless called upon by a court order.
Instead, their long-term needs are determined and expressed through a medium or representative – commonly a family consultant’s report, expert witness or independent children’s lawyer.
This considers the ‘best interests’ of the child while minimising distress.
Following a court order or individual application, children’s views are captured by ‘family reports’ in 60% of cases.
They are often required where the children are mature enough to express their own wishes or are victims of abuse.
Written by family consultants who must “ascertain” and “include the views of the child”, family reports are the second most referenced documents in judgements.
Therefore, both the child’s current wishes and future needs are articulated, strongly influencing the outcome.
If a family report is insufficient and specialist knowledge is required, experts may be employed to represent the child’s stance.
Either by application or court order, the expert will be selected through mutual agreement of the parties or the court. Restrictions on expert examinations are in place to ensure children are not traumatised by excessive interviewing.
Additionally, assessors may aid the judge’s understanding of expert evidence but are rarely appointed. Other mediums that may complement expert or family reports include “affidavit, video conference, closed circuit television or other electronic communication” as suggested by Family Law Rules 2004.
Although the reports are prepared for trial, they can encourage settlement in the 95% of family disputes that do not go to court.
If early settlement occurs, one can only hope that the warring parents have agreed on an arrangement that respects their child’s needs.
Parenting plans are written agreements about each parents’ responsibilities. This may include the child’s residence, time with each parent, maintenance and contact with others.
The FLAencourages but does not require parents to regard “the best interests of the child as the paramount consideration”. Fortunately a dysfunctional parenting plan can be altered by subsequent agreement.
Further, it has minimal legal value apart from overriding earlier court orders and becoming evidence for later court cases. Only a judge’s parenting orders are legally enforceable.
Overall, family courts have shifted towards a less adversarial approach. The whole procedure is simplified and negotiation-based with discussion guided by judges rather than parties.
At his own motion, the judge can question witnesses and call for evidence. If the judge excessively intervenes with the conduct of counsel and subsequent outcome, the decision can later be overturned.
Contrary to the win-lose mentality generated by an adversarial system, this co-operative model focuses on the child’s welfare.
Amid a complex adult conflict, it is easy for a child’s small voice to be warped or lost. The Family Court of Australia provides a representative network and procedural safeguards that both protect and involve the innocent third party.
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