Growing up in the 1970s, I was a pretty opinionated kid and indeed some of those older and taller folk around me would have said you just couldn't shut me up. A tiny pioneer for kids in an age where children were mostly seen and not heard. I remember with sadness and much melancholy my parent's divorce in 1975, a mysterious event that I had little say in, and where no counsel was sought from me about what my best interests might be.

Has much really changed?

When Australia ratified the United Nations Convention on the Rights of the Child (UNCRC) in 1990 it accepted that children would enjoy the rights set out in it. Included in these rights are that where a child is involved in and affected by any judicial proceeding, that child should be given the right to freely express their views and that age in itself is no barrier to a child having full participation in any judicial process.

However, in Australia the views of children still remain secondary. Children’s views are hampered by legislation that treats their input as not a primary but rather an additional consideration; a common law centred around predictability and precedent; and a judiciary reticent about hearing children’s views.

Professor Lawrie Maloney notes that children are not passive recipients of our wisdom, but active constructors of their own worlds, and with this in mind a move is needed beyond the “best interests” rhetoric, to legislation and family court processes that better reflect the inclusiveness of children.

Paradoxical positions on children's views

When it comes to protecting a child’s rights, the UNCRC makes it clear that governments have a responsibility to take all available measures to make sure children’s rights are respected, protected and fulfilled.

However in contrast to this, the UNCRC also recognises the interdependence of parents and other family members in mediating a child’s level of functioning. It states that governments need to respect the rights and responsibilities of families to direct and guide their children so that as they grow they learn to use their rights properly.

For legislators the paradox was set, children must have a right to be heard but the role of parents in directing and guiding their children must also be prominent.

In reviewing the current legislation concerning a child’s right to be heard, a familiar pattern emerges ensuing that children’s views are secondary ones. For example, a child’s view in family law proceedings is not a primary consideration but rather an additional one, that is overshadowed by a necessity for the child to have a meaningful relationship with both parents.

A child who doesn’t wish to have this “meaningful” relationship would find its objection a secondary one in the eyes of the court. But this was not always the case under an earlier version of the Family Law Act (FLA), where a child’s wishes were first in the list of things the court had to take into account. (The long amended s 68F(2)(a)).

It is also interesting to note that Part VII of the FLA’s objectives and principles regarding children fails to mention any right of a child to express themselves in family court proceedings, which clearly goes against the child’s right under the UNCRC. This section’s main emphasis is on promoting relationships between parents and protecting children from harm.

The Full Court in Goode v Goode has also stated that section 60B of the FLA will guide which factors in section 60CC will be weighted and applied. One consequence of this is the common law negating a child's right to express their views.

The primary way the views of a child are presented to court is via a family report. However, as Dr Robyn Fitzgerald and Professor Anne Graham have commented, the participation of a child in such a report must be looked at in terms of the legislative pathway the courts take to arrive at parenting orders.

As such, the primary considerations of achieving meaningful relationships with both parents and protecting the child from harm predominate. Additionally, children are given no opportunity to provide input on the amount of time they may or may not wish to spend with each parent. And if you find this hard to believe, reacquaint yourself with s 65D-DAA of the FLA.

Although the FLA encourages parents in reaching agreements to have regard to the best interests of the child, there is no direct input offered to the child apart from a diluted version of their views written by a family consultant. The report should mention the child’s views but the recommendations must represent the child’s best interests.

The lawyer with... no client

In a small number of cases the court may also appoint an Independent Children’s Lawyer (ICL) to represent the best interests of the child. The ICL must ensure relevant views of the child are put before the court. However, the ICL is neither the child’s legal representative nor is obligated to act on the child’s instructions during proceedings. In fact it is better to think of the ICL’s client as the Family Court, because a child has no right to dismiss an ICL if they are unhappy with any representations made.

Parallel this with New Zealand's Family Court where a child can be provided with a lawyer who will act as “lawyer for the child" and not, as in Australia, for the child's best interests.

Reluctant Judges?

It seems that in light of the legislative restrictions placed on the input and involvement of children, the “less adversarial trial” (“LAT”) model introduced to make child proceedings in the Family Court more child focused and flexible, is akin to a cart without a horse. The paradox of common law authority in Harrison v Woollard, where the Full Court stated that “a child’s wishes must not only be considered, but must be shown to be considered in the reasons for judgement”, pales in significance to the paramount aim of the court to apply the two FLA primary considerations. Furthermore, in the principles the court must give effect to in conducting child related proceedings, having regard to the child’s views receives no mention.

It's important to note that the family law rule regarding interviewing of a child in family law proceedings by a judge was removed by the Family Law Amendment Rules 2010. Perhaps an indictment to the fact that research by Dr Michelle Fernando has shown that most Family Court Judges have never actually met with children in parenting disputes. This reluctance still lingers despite Richard Chisholm, a former Judge of the Family Court, stating that it is important for children’s views and experiences be heard by the judiciary.

This desire of children to express their views rather than have them filtered via social workers, psychologists and ICLs has been accepted and appropriately legislated for in countries like New Zealand and Scotland.

For example, the Care Of Children Act 2004 (COC) in New Zealand states that children must be given opportunities to express their views and these must be taken into account. The COC also requires a lawyer acting for the child to explain parenting orders in a language that the child understands.

Peter Boshier, the former Principal Family Court Judge in New Zealand noted that the COC gives the Court a less adversarial model that offers “a realistic view of the child’s view and for the child...a meaningful way to participate”.

Contrast this with the expressed disapproval of Australia’s Family Court Chief Justice to the practice of judges ascertaining children’s views. [Here I refer to Chief Justice Bryant commenting in The Australian article , ‘Judges Urged to Talk to Kids in Family Disputes’ ]

However, when Australian judges do listen to children they find it very helpful when making decisions about parental orders and custody as was shown in ZN v YH and Child Representative. Indeed, as the New Zealand model has shown, the key to fostering a child inclusive family law proceeding is to not pretend that there is this magical commodity called the “best interests of the child” that must be in the forefront of judges, lawyers, and parents minds, and instead develop a less adversarial model that takes the time to listen to and understand children in their own unique way.

Solutions

Children can only feel comfortable expressing themselves when they are offered an environment that helps them cope with the bereavement and change they endure when their parents decide to separate. The current legislation and the common law processes fail to fully comprehend this.

Dr Robyn Fitzgerald notes that a move is needed towards a national framework for children’s participation in family law processes. In this framework, the key is to both conform with the UNCRC and elevate children’s views to an object and principle of the Family Law Act and a primary consideration in section 60CC(2).

The current LAT model whilst being more flexible and child-focused still does not specifically encourage the participation of children.

In addressing this, judicial meetings with very young children might involve the judge interacting in “toy play” in the company of a child psychologist helping to interpret the child’s views. For an older child, it may simply be getting an invitation to speak freely with the judge in an environment that lacks the formality of chambers.

Judges must also be given training and guidelines to help facilitate a child’s views being heard and understood. As a prerequisite to this, the FLA needs to be amended to create a pathway so that family law proceedings and judges can embrace this. It is important that judges and children both feel comfortable with the process.

It is children who are the victims of their parent’s disputes and eventual separation, and it is essential that the courts and all the players pay them the recognition and respect they deserve by giving them a voice. The great logic in fostering this inclusiveness, according to Professor Judy Cashmore, is that children’s views have been proven to lead to better decisions and happier workable arrangements in family law proceedings.

So I guess they were right all those years ago, you just can't... and shouldn't shut the kid up.*

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* This post is an extract from my featured article that appeared in the Autumn 2016 edition of the Law Society of Tasmania's journal, The Law Letter.