Divorce- Do the Children ever get a Say

Relevance of Children’s Wishes

On the breakdown of a family unit, decisions obviously need to be made about where the children are to live. For many, a good dose of common sense and child focus make it possible for agreements to be reached and adhered to with minimal quarrel. Sadly for others, the blinding effect of emotional distress, anger, hurt and mistrust towards the other parent can make it seem almost impossible to reach any agreement on any issue concerning the children at all. For both the high conflict cases and anything lying along the spectrum between the extremes, the question is often asked, why can’t we ask the children where they want to live or who they wish to see?

The answer is in fact children’s views are relevant to the determination of their living arrangements and are routinely considered in a number of different ways.

  • At what age may their views be considered: Many years ago, the Family Law Act stated that any child aged 14 and above may have their views considered. That provision however has long since been removed since there is obviously no magical transformation between 13 and 14 that would suddenly convert a child’s views from untrustworthy to relevant. These days the law instead permits the views of children conceivably from as soon as they can talk as something for a Court to consider. The level of consideration and influence those views may have over a Judge however will be very much affected by the degree of maturity the child or children are assessed as having.
  • Can the views of one child speak for another: Generally, Family Courts prefer not to see sibling groups split up so that some children are living predominantly with one parent and others with the other parent. In cases therefore where there may be several children with some children (usually the older children) expressing a strong view for living with one particular parent and the other children expressing views which are more ambivalent, the child with the strongest views can certainly seal the fate for the entire sibling group.
  • How are the children’s views expressed: Firstly, the children are never interviewed by any Judge who might be hearing the case. Under a special exceptionary rule in the Evidence Act, parents may give evidence about what their children have told them (which would normally be excluded on the grounds that it is hear-say evidence) and that evidence can be accepted by a Judge. Where the hear-say evidence from the child relates to abuse or fear the child may have towards another parent or associate, Courts will usually take heed due to the need to act swiftly to protect the children in case the allegations are true. In practically every other circumstance however, evidence of this sort is typically ignored or given little weight due to the strong probability of contamination from bias one way or the other.
  • Is there an independent person who could be used to ascertain the children’s views in a non-bias way: Working within the Family Law system, there is a very large array of Social Workers and Psychologists who specialise in assisting combatant couples and Family Courts in resolving parenting disputes. In private practice, these persons can be engaged by either one parent or (preferably) both to interview the children and the parents to ascertain not only what the children’s views are on a particular issue, but more importantly why those views are held. This information is then typically written up into a lengthy document called a “Family Report” and that report is usually evidence which can be put before a Court if need be. In plenty of cases however, gaining the report is enough for both parents to resolve the dispute and fall into line with recommendations which are usually made. Within the Family Court system itself, there is also a group of Family Report Writers who can be engaged to prepare an in-house report (sometimes called a Section 11F report) and whilst these sessions follow the same format as a private family report, they are very truncated and consequently limited.
  • To what extent should the children be allowed to decide their own fate: Even though the children’s views are relevant, it is considered highly imprudent to put the children under the pressure of making them decide the particular issue which is dividing the parents. To do so, it is considered it is placing too much pressure on and placing too much power in the children and each can have long term disastrous effects on their emotional development. Their views instead are weighed in balance with a great number of other factors such as the level of child focus and insight that either parent is demonstrating towards the particular issue and the attitude which they are demonstrating towards the other parent. It is only after considering all of these factors that a Court is then in a position to make a decision on the relevant point.
  • Are there are other places from which the children’s views could be ascertained: If the children had been interviewed by welfare workers from the Department of Child Safety or Police Officers investigating child abuse allegations then those statements are freely admissible through the Family Court system. On a lesser level, teachers in the State School system can provide reports, but this is usually refused unless the request has come through a Lawyer who has been especially appointed to represent the children (commonly referred to as an Independent Children’s Lawyer or ICL) by order of the Court.
  • What can be done if there is a suspicion that the children’s expressed views had been coached by the other parent: Generally speaking, as children age and mature, they become less susceptible to indoctrination however younger children are most certainly at risk. The best protection against this is to ensure that the person doing the interview is appropriately credentialed under the Family Law system as they are generally trained to tell the difference between views which are actually coming from a child’s own heart compared to views which have been coached into a child’s head.
  • Is there an age at which the children’s views would be followed without question: There is a general saying in the Family Court that children aged 15 – 16 and above are considered to vote with their feet and typically once children reach this age, Courts are very reluctant to make any Orders. By this age therefore, the children’s views generally hold sway and the Court largely considers itself powerless to intervene. However, until the children turn 18, there is of course still the ability for the Department of Child Safety to intervene where a child is in a situation which is clearly inappropriate.
  • Is it ever appropriate for a Lawyer to speak with the children: According to Family Law “best practice guidelines”, Lawyers should only interview a child if they have first been given leave of the Family Court to do so. This leave however, is rarely granted and even applying for leave is likely to be frowned upon. In cases however, where an Independent Children’s Lawyers has been appointed for the children, it has been the practice for many years in other states of Australia such as New South Wales for those Lawyers to interview the children and report on the outcome of those interviews directly to the Court. In more recent years, this practice is now also taking hold in Queensland and so this does set up a more fluid, less formal, line of communication between the child and the Court.

As can be seen above, children most certainly are given a say in circumstances where their parents cannot agree however, for very good reason, children are never assigned to the position of being the Judge, jury and executioner of their own fate. Instead, their views are something to be weighed in balance against all other relevant considerations.

Michael Zande is a Queensland Law Society accredited family law specialist with over 25 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Michael for advice phone 3385 0999.

The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.