How will the courts take into account the view of young children?

Date: Oct 12, 2015

Parenting matters always involve taking into account the best interests the child. Amongst other considerations, when deciding parenting matters, the court has to take into account the views expressed by the child. However, often the child is kept away from much of the process, either because it may be too traumatising for them or they may not be able to understand what is happening.

The Family Law Act does not prohibit children from giving evidence in court, but it is generally not advised. If circumstances are such that this might be helpful to proceedings, the Family Law Rules state that leave of the court must be obtained before a child may be called as a witness.

The Australian Law Reform Commission (ALRC) has taken an interest in the issue as to when the courts can involve children more directly in litigation. The general view is that children should not be required or pressured into taking part in court proceedings, but more mature children may be able to participate, when appropriate. This can mean becoming witnesses or parties to litigation where they freely indicate a wish to do so.

The Family Courts were established to remove some of the more adversarial aspects of the legal system. There exists considerable flexibility in children's cases, with a number of dispute resolution mechanisms available.

Without hearing from children directly, the court may be able to receive evidence of their views by the use of experts. They may be appointed on the application of any party or on the court's own motion. The court may direct a counsellor to prepare a memorandum or a family report, which would include the views of the child, where they are relevant to the proceedings.

Issues have been raised over the appropriate time to have an expert prepare a family report, with the ALRC stating it felt evidence showed it might be happening too early in court cases.
If you need expert advice on any matters related to parenting issues following separation, contact a family lawyer.