Many people are curious about how a children’s wishes and interests are presented to and protected in a Family Court in Australia.

Expression of wishes

People are very familiar with how adult evidence is presented to courts – typically through the use of affidavits, and through direct evidence in the form of being examined in a witness box, but the evidence of children in Family Court proceedings are presented to the court in a different way.

The primary method of a children’s wishes being expressed to a Family Court is through a report provided by an expert (usually either a psychologist or a social worker) or a Family Consultant engaged by the court, after the expert or consultant has interviewed the children, and has had the opportunity (usually) to also interview other family members (including the parents of the children) and after seeing the children interacting with both parents.

This provision of evidence through a third party to the court ensures that children are not traumatised by having to give evidence in an open court room (particularly in front of their parents, which could be very intimidating for some children), and also ensures that the evidence that is presented to the court has been filtered through a professional who is skilled in ascertaining if the children have likely been coerced or otherwise influenced to have said that their preference is to spend more time with one or other of the parents.

Often if the children’s wishes need to be taken into account by a Family Court judicial officer the provision of the children’s evidence through the use of an expert of Family Consultant report may well be sufficient.

Representation of children in Family Court

However, when there are special risk issues in a case, and usually these include drug or alcohol abuse; family violence or mental health issues, the court can seek to have the children in any proceedings represented through the appointment of an Independent Children’s Lawyer (ICL) in contested proceedings.

The role of the ICL is to look at all of the circumstances in a particular case and to give the court an opinion about what he or she believes to be in the best interests of the children.

The ICL is not a lawyer who acts on what the children in a case tell them to do, or who follow the children’s instructions in the way a lawyer will typically act of the instructions of an adult client.  However, the ICL will consider the wishes expressed by the children, and has an obligation to advise the court of any wishes expressed by the children regarding who they wish to live with, and how much time they wish to spend with each parent.

It is the ICL’s role to ensure that the court has all of the important information regarding the children, including information about their schooling, their physical and mental health and any information about their parents’ and other important people in their lives interactions with them.

It is usual for an ICL to speak to children if the children are over school age to ascertain their wishes so that they can express them to the court, and so that they can advise the court if they believe it would be in the children’s best interests to follow the children’s wishes, or not, and if not, why not.

Often the ICL will be responsible for arranging an expert to prepare a report about the children’s wishes.

The ICL is usually also instrumental in arranging dispute resolution conferences outside of the court proceedings to try to assist the parents in reaching a resolution about their matters without the necessity of proceedings to a trial in the Family Court.

If an ICL has been appointed on behalf of children in Family Court proceedings and the matter is resolved either through negotiations, mediation or a trial it is usual for the ICL to advise the children the subject of the proceedings of the outcome, which gives them an independent person to ask questions of, and discuss the outcome with.

If you or anyone you know is involved in contested Family Court proceedings and needs assistance, please contact our team at Lynn & Brown Lawyers.

About the author:

This article has been authored by Jacqueline Brown who is a Perth lawyer and director at Lynn & Brown Lawyers. Jacqui has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.

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