This is a very interesting article.
As was identified in the article, the most common method of ascertaining a child’s view is via the family report process.
A child’s view is a factor in determining the best interests of a child with age and level of maturity being relevant to weight. Further, in my experience often the recollections, opinion and/or attitude of a child is a good indicator of the nature and quality of the relationship of the child with both parents and relevant to the primary factor of the benefit to the child of maintaining a meaningful relationship with both parents. Arguably in the polarised world of family law litigation what the child has to say might often be the most honest account of what is really going on in a house hold.
A family report by an expert is generally considered to be the preferred method of facilitating communication between child and court. In my experience the main reason for this seems to be concern that children need to be shielded from the parental dispute, “systems abuse” may occur if a child is overly or unnecessarily exposed to forensic examination and lawyers are not qualified to engage with children in these types of interactions.
Interestingly when I attended the Independent Children’s Lawyer (“ICL”) course in Brisbane in 2012 it was discussed how infrequently ICL’s took the opportunity to speak with subject children even though the ability exists for them to do so.
Section 60CD(2)(c) provides the court has power, subject to the applicable rules of court, to inform itself of a child’s view by such other means as the court thinks appropriate, which includes the child communicating with the judge.
Children cannot be compelled to have their say but when they wish to do so, and express this strongly, perhaps ICL’s and judges have been unnecessarily gun shy in failing to facilitate the child becoming more involved. The essence of the parenting order process is giving paramountcy to the rights of the child and I wonder if a typical child would be too adversely affected by engaging with a judge (or ICL) as part of the process.
Of course it’s not as if Federal Circuit Court and Family Court judges have plenty of time on their hands to meet with, and hold discussions with children in all matters. The courts exercising jurisdiction under the Family Law Act are busy, and increasingly so. However in appropriate cases, where the necessity for judicial determination is likely, perhaps some greater consideration should be given to a more robust involvement of the subject child in the proceeding.
Peter Hooper – Hooper Family Lawyers – We are family lawyers in Brisbane. Find us searching family lawyers Brisbane; divorce lawyers Brisbane; family lawyer Brisbane; Brisbane family lawyers; family law solicitors Brisbane; divorce lawyer Brisbane; family law lawyers Brisbane; divorce solicitors Brisbane; divorce lawyers in Brisbane; best divorce lawyer Brisbane.Share