Understanding your Child’s Voice in Parenting Arrangements

Whether you are ending your de facto relationship or your marriage, when you and the other parent of your child separate, there are multiple complex considerations, particularly when determining the living arrangements for your children.

One common question that arises is whether a child has the autonomy to choose where they want to live. The legal landscape aims to prioritise the best interests of the child, and understanding how your child’s preferences factor into custody decisions is crucial if you and your child’s other parent are navigating this challenging terrain.

After you separate, what factors determine where your child will live?

Several factors are considered when determining your child’s custody and living arrangements of your child including your child’s opinion and your capacity and the child’s other parent’s capacity to look after your child. However, in the Australian family law system, the decision must be made considering what is in the best interests of the child.

Section 60CC of the Family Law Act 1975 outlines two key primary considerations of the child’s best interest principle, which are, are:

• “the benefit to the child of having a meaningful relationship with both of the child’s parents”; and
• “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.”

While both of these principles are extremely important, more weight will be given to protecting the child from harm, abuse, neglect, or family violence.

The child’s best interests include the following additional considerations:

1. The Age and Maturity of the Child

• While the Family Law Act does not specify a particular age at which a child’s preferences are automatically considered, the maturity and age of the child are crucial factors.
• Older and more mature children may have their views given greater weight in custody decisions, especially if they can articulate reasoned and well-founded preferences.

2. The Child’s Right to be Heard

• The Family Law Act explicitly recognises the child’s right to be heard in matters concerning their welfare. This acknowledgment reflects a shift toward recognising the agency of children in family law proceedings.
• The child’s right to be heard, however, does not mean an absolute right to decide where they will live. Instead, it emphasises the importance of considering the child’s views and ensuring they are given due weight in the decision-making process.

3. Court Considerations

• When parents cannot agree on living arrangements, the matter may be brought before the Federal Circuit and Family Court of Australia. In such cases, the court considers various factors, including the child’s views.
• The court may appoint an Independent Children’s Lawyer (ICL) to represent the child’s interests. The ICL assesses the child’s views, along with other relevant factors, and presents recommendations to the court.

4. Child’s Age and Understanding

• The court considers the child’s age and level of understanding when considering their views. Younger children may have less influence on custody decisions, while older teenagers with a more sophisticated understanding of their family situation may be given greater consideration.

5. Balancing Factors

• The court’s main concern is the best interests of the child.
• The court aims to strike a balance that safeguards the child’s well-being.
• The child’s views are just one of several factors considered in this determination. Other factors include:
  1.  the child’s relationship with each parent,
  2. the ability of each parent to provide a stable and supportive environment, and
  3. any safety concerns.

6. Impact of Family Violence

• If there are concerns about abuse or family violence, the court gives paramount importance to the safety of the child. In such cases, the child’s views may be assessed in the context of protecting them from harm.
• The court may also consider any family violence orders or allegations when determining custody arrangements.

7. Expressing Preferences

• Children can express their preferences in various ways, including through communication with parents, teachers, counsellors, psychologists or the court-appointed ICL.
• It is essential for parents and legal professionals to create a safe and supportive environment that allows children to express their views without feeling pressured or coerced.

8. Mediation and Consent Orders

• Many family law disputes are resolved through mediation, where parents work together to develop a mutually acceptable parenting plan. In some cases, the child’s views may be considered during the mediation process.
• If an agreement is reached, parents can submit Consent Orders (Parenting) to the court, which formalises the agreed parenting arrangements. The court will still assess whether the proposed arrangements are in the best interests of the child.

9. Psychological Assessments

• In complex cases, the court may order a psychological assessment to gain a deeper understanding of the child’s needs and the family dynamics. These assessments can provide valuable insights into the child’s emotional well-being and preferences.

10. Changing Circumstances

• Custody arrangements may need to be revisited over time, especially as your children grow and circumstances change. The court recognises the evolving nature of family dynamics and is open to modifying orders if it is deemed in the best interests of the child.

How Is Your Child’s Opinion Expressed In Family Law Matters?

Depending on how your care and living arrangements are being worked out, taking your child’s opinion into consideration can occur in several ways.

If your matter is in court, this information is likely to be provided by a third party rather than from the child directly. This is to protect your child from having to experience any court processes. The third-party expert is generally a family report writer, psychologist, or an Independent Children’s Lawyer.

What is a Family report writer?

The family consultant is usually a trained counsellor, therapist or consultant who interviews and observes the parents and the children and other relevant family members, to understand the family situation and the child’s maturity and preferences. The family consultant will ascertain the child’s wishes by asking questions and through educated observation.

The Family Report Writer will then prepare a family report for the court to aid in making decisions about the parenting arrangements.

What is an Independent children’s lawyer?

Also referred to as an ICL, an Independent Children’s Lawyer advocates on behalf of the child during the proceedings. The ICL gathers information from multiple sources. This may include interviewing your child, your child’s school, your child’s school counsellor, and obtaining medical records. Section 68LA of the Family Law Act sets out the role of the ICL during parenting proceedings.

If Your Matter Is Not In Court …

If your matter is not in Court, and you want to consider your child’s opinions and views, then you have several options;

1. Counselling or therapy

• Individual and family therapy is a valuable option to provide you and your child with a confidential and safe space to process the challenges you are all facing as your lives change. A counsellor or therapist is a valuable independent and objective third party.

2. Mediation or family dispute resolution

• The wise counsel of an independent mediator or family dispute resolution practitioner may assist you and your child to come up with options that you have not considered because they are experienced in finding unique alternatives to tricky family situations. The role of a family dispute resolution practitioner or mediator is to facilitate discussions between all the family members involved. This means that the thoughts and concerns of all involved are voiced and considered.

What are your options if your child does not want to have anything to do with either parent?

If your child is under 18 years of age, then in the absence of a court order, your child can spend time with the other parent. Your child has a right to a meaningful relationship with both of their parents.

Both you and the other parent are obliged to actively promote the relationship between your child and the other parent. At all times, be awake and aware to your child’s concerns and encourage your child to tell you specifically what their concerns and objections are to spending time with you or the other parent. Often, there are simple and straightforward solutions to your child’s worries. If there is a fundamental problem that needs to be addressed, it is advisable to take appropriate and early action so that the issue does not escalate. If a problem has already become difficult, you are well advised to seek the help of experienced expert professionals to support your child to find a calm and happier inner space.

There are multiple reasons that your child may refuse to spend time with you or the other parent, including but not limited to if you or the other parent have re-partnered and your child is uncomfortable with that change. Your child may be struggling with post-separation changes, or perhaps the other parent is intentionally influencing the child. If there is wilful behaviour from the other parent that is alienating your child from you, then you may need to address the serious issue of parental alienation.

Ideally, both you and the other parent should work together with your child to explore their concerns and find solutions that suit your family. Remember to keep yourself and your child safe at all times and to take your child’s views seriously.

How can you find solutions to suit your family’s unique needs when considering your child’s living arrangements?

The Australian family law system encourages families to find their own solutions when resolving issues related to care arrangements for children, as long as it is safe to do so. Here are some suggestions that may assist you in resolving your child’s living arrangements:

1. Family dispute resolution and/or mediation

• If you and the other parent cannot successfully resolve issues to do with the care of your child and parenting arrangements, then you can engage a mediator or family dispute resolution practitioner to assist you. The family dispute resolution practitioner or mediator will consider the views of both parents and your child, and often make helpful suggestions to assist you to come to a set of arrangements that consider all of the views and your unique circumstances. Mediators and family dispute resolution practitioners are highly skilled at facilitating positive compromises between family members so that you can all get on with your lives in a consistent and structured way with the best interests of your child at the heart of the arrangements.
• Mediation and/or family dispute resolution is a necessary step to take if you cannot come to an agreement, because you cannot file an application in court without taking this step. If your mediation fails, you will need to provide the court with a certificate 60(i) as evidence that you have completed this element of the pre-action court procedures.

2. Your private parenting agreement

• You can make an informal agreement with the other parent regarding your parenting arrangements. If you wish to formalise your agreement, then you can apply to the court for consent orders.

 3. Court proceedings

• If you and the other parent cannot agree, and mediation attempts have failed to successfully achieve parenting arrangements, you can apply to the court to have the court make orders for you. There are a number of opportunities to come to an agreement even when you are part of the court stream. Court orders must be obeyed, and you will have to go to court to have any orders changed if your circumstances demand that you cannot abide by the court orders.

 4. Legal advice and assistance

• In most separations where children are involved, you are well advised to seek the assistance of an empathic and experienced family lawyer. Your family lawyer will assist you to negotiate parenting arrangements that reflect the specific needs of your child and your family. You have the option of an informal arrangement, or your family lawyer can formalise your parenting arrangements as consent orders filed with the court. If your family law matter becomes challenging to resolve between you and the other parent, your experienced family lawyer can represent you in the court system and litigate where necessary.
• Your safety and the safety of your child is of paramount importance. Sometimes it is impossible to resolve matters between you and your child’s other parent without the expert assistance of a family lawyer, counsellor, psychologist, mediator, or family dispute resolution practitioner. If you feel you or your child is at risk or you feel vulnerable, then we strongly advise that you speak to our Family Law Dream Team at Anumis Legal. You are not alone, and we are here to help you and advise you of your legal options.

In Summary

Family law separation in Australia requires a nuanced understanding of the legal principles that govern parenting arrangements, particularly regarding a child’s living arrangements. While your child’s views are an integral consideration, they are part of a broader assessment of the best interests of the child.

You, your child’s other parent, and legal professionals must approach these matters with sensitivity, recognising the importance of creating an environment where your children feel heard and supported. Balancing your child’s preferences with other relevant factors, such as safety and stability, ensures that parenting arrangements align with the overarching goal of promoting your child’s well-being.

Ultimately, the legal framework in Australia acknowledges the evolving role of children in family law proceedings, emphasising their right to be heard and ensuring that their perspectives contribute to decisions that shape their future.