Does what the kids feel actually matter?

Our Family Law Act in Australia makes it pretty clear that the ‘best interests of the children’ is the main consideration for the court when making decisions about parenting. But what indeed happens when Mum and Dad separate and the kids don’t want to spend time with the parent who isn’t the primary carer?

A recent decision in the Federal Circuit Court (Weller & Weller from 2017), makes a decision that leaves little doubt that the opinion of the children isn’t an overriding reason to stop dad (or mum) from having visiting rights.

This case involved two children, aged 11 and 14. They had told both the mother and the court appointed Family Consultant, that they were very unhappy and resistant to spending time with their father. One of the children, during a ‘Child Conference’, said to the Family Consultant that their father, on a visit to his home at Christmas, had made them stand out in the rain with all the Christmas presents he had given them because he said they had been ‘ungrateful’.

The court in its judgement noted that it is not for children to decide where they live, and if they spend time with the parent with whom they do not live. This is a matter for the parents, and if the parents cannot decide or agree, and if there is an appropriate application before the Court, then it is a matter for the Court.

The Court of course is bound to follow both the Family Law Act, and previous decisions in the court, in determining primary considerations like this.

And in doing this, the Court must give greater weight to the need to protect children from physical or psychological harm and from being subjected or exposed to abuse, neglect or family violence. This greater weight will then override the potential benefit of a child having a meaningful relationship with both parents. The court must ensure that any order it makes does not expose a child to an unacceptable risk of family violence.

However, if the issue of violence is not in the mix, as was the case here, the Court must apply the provisions of section 65DAA of the Family Law Act which looks at children spending EQUAL time with their parents.

There’s an important proviso here, you see where the Court finds that it is not in the children’s best interests or practicable (think here where a parent lives a considerable distance away from the children), then the Court must consider the children spending substantial and significant time with the parents. Of course these words ‘substantial’ and significant’, don’t have any fixed meaning.

.The two children in the Weller matter attended ‘reunification therapy’ and in one of the sessions, when their mother was also present, they all brainstormed on how they could repair their relationship with the father, including:

More compromise and discussion relating to activities they would do together; a rule regarding not swearing; that Dad would attempt to ‘not get so angry’ and that both parents would agree not to say negative things about the other parent in the presence of the children or on social media.

[The Legal Eagle covered “the destructive powers of parents dissing each other on Facebook” HERE.]

Later at a different session, where the father attended with the children, the feedback from the kids regarding their feelings and concerns about contact with their dad was passed on to him.

The children and the father agreed on a range of things that they would each try and work on to improve their relationship. A “Contract” was drawn up which listed, among other things, the following matters:

1. No swearing

2. No unkind comparisons

3. No bum touching

4. No calling one child fat

5. Replying to msgs and calling Dad

6. No “rushing” by Dad

Even though the kids were unhappy spending time with Dad because of his off putting and at times insensitive behaviour, the court felt that the issues raised by the children were not enough to allow them to stop seeing him. While the Court appreciated that children see things differently to adults, and that in children’s eyes some things may appear more important than they would in an adult’s eyes, it’s role is to consider ALL of the available evidence and make an assessment based on the evidence. The court did allow for a final Family Report to be done to assess whether the future visits were working well. Final orders were then put in place.

In these sort of matters the court does have wide discretion in the weight it gives to certain factors. As children move closer to an adult age, their opinions are often given much more weight. The strength of their views, and the length of time they have held them is also important. Additionally, if the child’s views are well thought through, or are as a result of pressure being put on the child, these things will carry weight in the court when making parenting decisions.

As the court noted in this matter, “The Court is charged with the task of assessing what is in these children’s best interests, and it does this by, in part, turning its mind to weighing the probabilities of competing claims and the likely impact on children in the event that controversial assertions are acted upon or rejected. This includes the possibility of these children continuing along a trajectory of a fractured relationship with their father which may well be on its way to being beyond repair, if it is not already.”

And indeed what is the greatest risk in the long term?

Is the risk of losing a child’s relationship with one parent the greater risk?

Is there a long term psychological effect on a child who grows up and has no contact with one parent?

In almost all cases except those involving sexual, physical and psychological abuse, I feel that the Family Law Act has got in right in presenting a roadmap that endorses it is in the best interest of the child to have both parents substantially involved in their child’s life.

Find out about more about what happens to the kids when you separate HERE.

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