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A Child’s view in the Family Court

Jan 22, 2016

Carr & Co

In a custody dispute, does the Court consider your child’s views?  How are they presented to the Court? What is a family consultant report (also known as a “wishes” report)?

Parenting matters – the child’s best interests

When the Family Court decides whether to make a parenting order[1], it must consider the best interests of the child to be the paramount consideration.

In determining what is in the child’s best interests, the Court must consider primary and additional considerations which are set out in s.60CC(2) and (3) of the Family Law Act 1975 (Cth) and 66C of the Family Court Act 1997 (WA).

The views of the child

One of the additional considerations the Court must consider is “any views expressed by the child and any facts (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s view”[2].

The answer to the first question of, “Does the Court consider your child’s views?” is therefore, “Yes”. Any views expressed by a child must therefore be taken into consideration by the Court, The Court must decide what weight should be given to the child’s views. The weight the Court will attach to any views expressed by a child in Family Court proceedings will depend on the age, maturity of the child, the basis of their views and the reasonableness of them.[3] Generally speaking, the views of an older child may be the product of a more considered decision making process and as such the Court may afford more weight in those circumstances.

How is the Court informed of the child’s views?

The most common way in which the Court informs itself of the views expressed by a child is:

  1. by considering the contents of a family consultant report;[4] or
  1. a report prepared by a single expert witness such as a social worker, psychologist or psychiatrist; or
  1. by making an order for the child’s interests to be represented by an independent children’s lawyer.

The Court may also inform itself of the child’s view by any other means it considers appropriate subject to the Rules of the Court.

Although not often utilised in practice, other ways in which the Court informs itself of the child’s views include:

  1. by way of affidavit or oral evidence provided in Court by a party to the proceedings; or
  1. by evidence presented by a witness such as a psychiatrist or social worker who has interviewed the children.

What is a family consultant report?

Family consultants are trained ordinarily as social workers and psychologists, employed by the Court to assist it to determine a child’s best interests. A Family Consultant is not a lawyer. A family consultant report is prepared by a family consultant at the order of the Court.

At the time of making the order for the family consultant report, the Court may also:

  1. make an order directing the family consultant to report on any matter it considers relevant to the proceedings; or
  1. make any order it considers appropriate for the purpose of preparing the report, including for example, who must attend upon the family consultant or the arrangements for the child to attend appointments.

After the Court has made an order for a family consultant report to be prepared, parties will be advised of the dates and times that they and their children will be interviewed.

The interview process 

Each of the parties and the children will be interviewed separately. At the interview, the family consultant will ask questions about the family and the parenting of the children.

The consultant will ask the children to express how they are feeling about the dispute between their parents. They will be asked to express their views as to with whom they want to live and the amount of time they want to spend with each parent.

It is important to note that interviews with family consultants are not confidential. Anything that is discussed may be mentioned in the consultant’s report and therefore read by the judicial officer, parties to the proceedings and legal representatives.

The publication of the family consultant report

After the interview, the family consultant will consider the child’s views, the family’s circumstances and any matters that may be relevant to the case or that the Court has directed them to consider.

The consultant will then prepare a report detailing the arrangements they consider will best meet the child’s care, welfare and developmental needs. The consultant is required to include the child’s views in their report.

Further information

For further information on parenting matters generally or children’s views, contact Carr & Co at contactus@carrco.com.au or 9322 8000.

[1] A parenting order is an order made pursuant to Part VII of the Family Law Act 1975 (Cth) (Part 5 of Family Court Act 1997 (WA) ) which may deal with factors including but not limited to: who a child lives with, the time a child spends with any other person, the allocation of parental responsibility, the communication a child has with any other persons, maintenance of a child etc.

[2] S. 60CC(3)(a) Family Law Act 1975 (Cth); s66C(3)(a) Family Court Act 1997 (WA)

[3] In the Marriage of R [1998] FLC 92-820

[4] Reports made pursuant to s. 62G(2) Family Law Act 1975 (Cth); s. 73(2) Family Court Act 1997 (WA)