Children Caught in the Middle Get Their Say

by Peter Magee on May 20, 2014

Zoe Durand

A Child’s Cry for Help to Separated Parents

Separation can be a bitter affair. Love can turn to hate astonishingly quickly. Unfortunately, children are sometimes not shielded from these emotions.

In an article from December 2013 entitled “Child’s school project becomes a plea to the Family Court” Michaela Whitbourn of the Sydney Morning Herald records the plea of an 11 year old, recorded in a school assignment:

“This has got to stop. Not in a few years. Not when people can finally be bothered to do it. It needs to be done NOW!”

In a previous blog entitled “Do Children Have a Say in Family Law Matters?” I outlined the ways in which the views of children are taken into account, including:

  1. Independent Children’s Lawyer;
  2. Child Inclusive Conferences;
  3. Family Report or Expert Report; and
  4. The rare direct discussions between a child and a Judge.

As the case above demonstrates, a Judge will also often hear the views of the children through evidentiary material, including material produced under subpoena.

Despite these opportunities for children to express their views, I often hear parents indicate that they, or their children are frustrated that, in the words of Michaela Whitbourn, “their views are filtered through a lawyer, psychologist or a family consultant”. There are a couple of things for people expressing these frustrations to understand.

Firstly, a child’s views are not the determinative factor in deciding where a child is to live and how much time they will spend with the other parent. A Court must make a decision that is in a child’s best interests, by considering a number of factors outlined in the legislation. A child’s views are just one of over 16 factors that the Court must consider in making this decision (see Section 60CC of the Family Law Act 1975).

Secondly, a child in family law matters will seldom have the requisite emotional maturity and understanding of the world around them to make a decision that is in their own best interests. It seems odd that parents, who still require a child to ask permission before they go somewhere or do something and who set curfews and other appropriate boundaries, consider that children are not mature enough to set their own boundaries to keep safe, but they are mature enough to decide where they should live. That being said, similar to a child being given more independence as they get older, a child’s wishes will be given more weight in the family law jurisdiction as they get older.

Thirdly, as is obvious from the quote above, involving a child in a family law dispute is not pleasant for a child and can lead to some long-lasting emotional difficulties. The ‘filtering’ of children’s views through a psychologist, Family Consultant or an Independent Children’s Lawyer can also be viewed as protecting the child from direct exposure to the Courts and to litigation. People are quick to share their disgust in children being witnesses in criminal litigation, so why should our opinions of children’s direct contact with the Family Law Courts be any different?

Lastly, it is important to understand that there are parents who lose sight of the impact of their behaviour on the children in the course of family law proceedings. Without parents’ insight and cooperation, it is difficult for the Courts to avoid children being embroiled in conflict and exposed to litigation. In such circumstances, a child’s expressed views may be shaped by their exposure to conflict and litigation. They may express a view that they think is least likely to upset both parents but is not actually what they want or what is in their best interests. They may express a view that is the result of the last big fight. Sadly, they may express a view that is a result of one parent’s coaching, or one parent’s alienation of the other parent. If a child gives direct evidence in a Court, a Judge must be the one to assess what lies behind a child’s views. This is not a Judge’s expertise. This is the expertise of a Family Consultant or psychologist, whose views and recommendations are considered by the Judge.

If you have any questions about how your child’s views may be considered in family law litigation, please contact one of our family law specialists on (02) 9261 4555

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