Making arrangements for children post separation can often be difficult, not only for parents but for the children themselves. Unsurprisingly, children want to be heard regarding matters that impact them. This is no different when parents are trying to make arrangements for them post separation.
Currently, The Australian Law Reform Commission (ALRC) is conducting a review of the Family Law System and as part of this, research has been conducted by the Australian Institute of Family Studies in relation to the impact of children whose parents have separated and accessed the Family Law System.
Primarily, this report has found that children of separating families do not feel as though they are being listened to by both parents and services of or those working in the Family Law system, including the Court, Independent Children’s Lawyers etc.
In light of these findings, it is worth discussing the current approach that the Court’s take in relation to considering views expressed by children. Currently, it is not mandatory for the Court to consider the views of the children in deciding parenting matters; however a Court may consider the children’s views if they consider it appropriate to do so. Should the Court wish to consider the views of the children then there are a few mechanisms which allow this to occur. These include:
- Obtaining a Family Report – for more information about a Family report see (What is? Family Law Series – Part 2);
- Appointing an Independent Children’s Lawyer (ICL) – An ICL represents the child/ren’s best interest in the proceedings however they are not automatically appointed once proceedings are commenced. The Court has the discretion to appoint an ICL should they consider it necessary.
There is another mechanism that can be accessed (either during court proceedings or outside court proceedings) which is known as Child Inclusive mediation. Child Inclusive mediation is a type of mediation, where children are able to discuss their views and concerns with the mediator. Their views are then communicated to the parents (by the mediator) to help parents consider and discuss the parenting arrangements and decisions post separation.
Whilst this is the current approach, this may well change pending the findings of the ARLC from their review into the Family Law System. Whilst the review has not yet been finalised, a discussion paper has been released by the ARLC (DP86) proposing that the Family Law system needs change in a way that enhances the participation of children in the Family Law process, so as to ensure that their views are being appropriately considered.
NOTE: The ARLC are due to provide their report and recommendations to the Attorney-General on 31 March 2019. Watch this space!