When it comes to parenting matters, I regularly have clients come to me and say “will the Court care about what my child thinks?” and “do they get a say in what happens?”.
Children do not give evidence in family law disputes. However, section 60CC(3)(a) of the Family Law Act requires that the Court considering a dispute involving a child must take into account the child’s wishes and any factors such as the child’s level of maturity and understanding. So, how does the Court ascertain what are the wishes of a child? There are various means available to the Court.
The Independent Children’s Lawyer
Section 68L of the Family Law Act enables the Court to appoint an Independent Children’s Lawyer. This is a lawyer who acts independently from the other parties to a matter and whose role it is to represent your child and their interests.
The Court can order that the parties attend a Child Inclusive Conference (“CIC”). Generally, but not always, the Court will order a CIC when parenting matters involve older children.
A CIC includes a court appointed officer, parents or other relevant care givers, and the child or children who are the subject of the proceedings.
The Court can order that a ‘wishes report’ be prepared. A wishes report can in general terms be described as a psycho-social assessment of a child, generally by a psychologist or child specialist.
The report will be based on an interview or interviews and present the child’s views and experiences, as well as observations and analysis of the child’s views and behaviour in the context of the parenting matter at hand.
Family Report or Memorandum
Section 11F of the Family Law Act enables the Court to order that the parties attend upon a Family Consultant.
This Consultant will interview each party, sometimes with the child or children in question, and prepare a memorandum with respect to their observations and findings.
Section 62G enables the Court to order a Family Consultant to prepare a report to assist the Court.
It is mandatory for a Family Consultant in preparing such a report to:
- ascertain the views of the child in relation to that matter; and
- include the views of the child on that matter in the report.
The findings or reports produced through any of the above processes are not binding on the Court but can be relied upon by the Court in reaching any determination.
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