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Family Law

Does the court listen to children?

By December 9, 2020February 23rd, 2024No Comments

Does the court listen to children?: The experience of children and family court is one of the issues that’s being explored in the current phase of family law reform, and it’s a subject that has been frequently debated over the years. The question is how to improve kids’ experience of family law proceedings and ensure their voices are being heard in the family court system. A recent case in the family courts shows how the courts might approach a situation where an older child has expressed views regarding custody.

We are sometimes asked at what age the family courts will take children’s views into account on where they should live. There is often a misperception that there is some magic age, such as 12, when children’s feelings on parenting arrangements are taken into account. But there is no set age, and no guarantee that a court will place any weight on your children’s views on their living arrangements.

Under the Family Law Act 1975, there are two primary considerations in parenting matters, both of which have the best interests of the child at their heart. First, a child should be able to enjoy a meaningful relationship with both parents, and second, a child must be protected from physical and psychological harm. After these primary considerations, the court will also consider a number of other factors, including the child’s views and the weight those views should have, based on a child’s actual age and emotional maturity. Trial judges must then weigh up all the evidence and the child’s views are just one component of the total equation.

A recent case in the family courts (pseudonymised as Galvin & Galvin) delved specifically into the issue of a child’s wishes regarding how time should be shared between her parents.

The 13 year old girl had been living in an equal shared care arrangement as per interim parenting orders but the father alleged she expressed views to him wanting to vary that time arrangement to spend less time with her mother. The court permitted further evidence to be submitted from experts (a social worker and a child psychologist) and an independent report was ordered to be prepared around the child’s wishes. The Independent Children’s Lawyer (ICL) in the case supported a change in arrangements so that the girl would live mainly with her father and see her mother in accordance with her wishes. The ICL relied on the two experts’ reports in support of her submission that an equal shared care regime was no longer in the girl’s best interests.

Time with the mother was ultimately reduced in accordance with the ICL’s submissions and orders were made expressly requiring the parents to acknowledge and act on the child’s wishes to return her to the other parent’s care at any time that she wishes to do that.

Why did the child want to change living arrangements?

The girl told the experts she wanted to live mainly with her father, provided she could continue to see her mother and spend time with her. The main reasons were that the daughter felt the mother had an alcohol problem, and that they argued a lot. The girl reported issues with her mother “changing her mind on and off, arguing with her, and taking her phone so she cannot call her father”.

She told one expert she would be happy with time with her mother “as long as Mum promises not to drink when I’m there”. Despite both parents being ordered in the interim orders to abstain from consuming alcohol when caring for the child, the child subsequently told the experts of “many occasions when she saw her mother very drunk” and that she “thinks her mother is dependent on alcohol and does not want to do anything about it”.

The girl told the experts:

“She likes the idea, regardless of the future arrangement, of being allowed to telephone her father if she holds concerns that her mother is drinking alcohol, or if the conflict with her mother gets out of hand. She thinks it would make things easier and she would feel more assured about staying with her mother under those conditions.”

The judge noted that it was an interim hearing and he had not had the opportunity to see the mother cross-examined, but found the child’s views as reported to her dad, the social worker and the child psychologist “persuasive”. The mother’s denials of alcohol use were rejected in favour of the child’s evidence.

Spare a thought for the difficulties children must experience with divided loyalties when required to speak to professionals regarding their views to be used in court. As the ICL noted to this judge, the child “would prefer to live with her father, though she does not want to hurt her mother or ‘break her heart’”.

Here, sensitive to the delicacy of the situation, the judge made orders designed to relieve the girl from “having to have very difficult conversations with her mother and would also relieve her from the conflict that occurs between the parents around the…arrangement and the matters that give rise to her wishes to return to her father’s care”.

A little note on costs…

The mother in this case was able to successfully ask the court to make an order for an interim litigation costs funding order requiring the wealthier dad to pay her a lump sum of $106,705 to be spent on her ongoing legal fees. In this litigation, the parents have already spent nearly $600,000 on legal fees between them, the mother having spent twice as much as the father.

Such costs are shocking and are a really good reminder to attempt to settle your family law matter out of court—give us a call so we can walk you through the Alternative Dispute Resolution processes that suit your situation and could help you save money.

Please call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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