When it comes to Family Law in Australia, the proceedings are lengthy and complicated. While the involved parties present their cases, children under the age of 18 are often unheard and underrepresented. Even when crucial decisions are being made in separation cases that involve the children’s well-being and best interests, the children are not adequately heard, nor are their opinions given much consideration.


In recent years, however, there has been a visible change in the legal approach in such cases, and children’s voices are being given more importance. Children are being encouraged to express their views about matters that could impact their lives directly and indirectly.


Overview of the Child’s Legal Standing in Australian Family Law

The Australian Family Law provides a legal framework for all family law proceedings that consider children’s voices to be important and recognise that the children have a right to be heard as well. Underscoring the best interests of the child, it is important to allow the child to play an active role in the legal processes of the case, which could have a massive impact on their lives.


The child’s views are important and rather critical when making decisions about their well-being, their best interests, and their lives. While taking the views of the children, their age and level of maturity are considered. Furthermore, it is recognised that, as the child grows, their ability to think rationally and express their views confidently improves. In every case where children are involved, their best interests are prioritised, and their views are seriously heard.


Understanding the Child’s Right to Be Heard

It is important to understand that a child’s right to be heard is not a mere formality. The objective of giving children an opportunity to be heard is to foster an environment in which children can express their views freely and to bring about outcomes that are more reflective of the child’s needs and circumstances.


The child’s right to be heard is smoothly implemented by means of detailed family reports, child-inclusive mediations, and Independent Children’s Lawyers. This helps gain insight into the child’s views and understand the aspects that would work in their best interests.


Methods Employed to Elicit the Child’s Perspective in Australia

Getting the child to share their views is a challenging task, especially in a highly emotional situation. However, there are several ways to elicit the child’s perspective, and by creating a conducive environment, this can be done effectively. Thus, it is reasonable to say that this is a highly nuanced process and needs to be handled delicately.


The different ways to elicit a child’s perspective are:


Family Reports

Family reports provide a detailed assessment of the child’s views, in alignment with their age and maturity. These reports are made by family consultants, psychologists, and social workers appointed by the court. The reports are prepared after assessing the family dynamics and observing the interaction of the child with parents and other members of the family.


Child-Inclusive Mediations

This method helps obtain a child’s views directly, while a trained mediator facilitates open communication between the child and their parents. As the child is encouraged to speak up and express their views uninhibitedly, they allow us greater insights into their feelings, emotions, and opinions.


Independent Children’s Lawyers (ICL)

Independent Children’s Lawyers are appointed by the court solely to represent the interests and views of the child. The ICL, independent from the parents and advocates, interviews the child and attempts to elicit their views. These views may be presented in court, which might in turn help in making decisions that work in the best interests of the child.


Direct Court Testimony

When the child involved is older and more mature, they are asked to provide their testimony in court in person. The child gets to speak directly to a judge and express their views openly. Right from their preferences, their concerns, and their feelings, the child can share them all and get a decision that works best for them.


Challenges and Considerations: Integrating the Child’s Voice

As already mentioned, getting a child’s views on issues relating to their lives and parents can be difficult, as it is a highly nuanced process. Some of the possible challenges that may hinder the smooth execution of the child’s right to be heard are:


Age and Level of Maturity

Every child has their own way of expressing their views, and this is more distinctive by the age of the child. Younger children may struggle to articulate their feelings accurately, whereas older children are clearer with their expression.


Parental Influence

Knowingly or unknowingly, parents tend to influence the thoughts and views of their children. It befalls the court to discern a genuine view from an influenced one. It is very important to make decisions that will be in the best interests of the children.


Cultural Sensitivity

While getting the child to express their views, the court and all involved parties must keep in mind the cultural differences and adhere to culturally appropriate methods. This provides a familiar environment for the child, which encourages them to openly discuss their concerns and views.


Trauma and Vulnerability

Besides being culturally sensitive, the courts and involved parties should also be aware of the situation of the child. It is possible that the child might be suffering trauma or be vulnerable to other mental and emotional conditions that may cloud their expression.


Benefits of Incorporating the Child’s View in Australian Context

Allowing children to share their views in family law proceedings goes a long way towards their well-being. They feel recognised and empowered. Here are some of the most noticeable benefits of incorporating a child’s view:


Empowerment and Autonomy

When children are allowed to express their views, they feel empowered, and this empowerment gives them a sense of self-worth and more confidence. They can assertively state their opinions and believe that their views matter.


Child-Centred Decision Making

When the child involved is able to share their views and feelings firsthand with the court, it becomes easier to make decisions that work in their best interests. It can be ensured that the decisions are made primarily centred around the interests and well-being of the child.


Reduced Psychological Distress

In a situation of great emotional and mental turmoil, children can feel overwhelmed and distressed. They may have a lot of views and opinions to share. As they get an opportunity to open up, there is a high chance that the psychological distress is reduced, and they can feel freer.


Better Compliance with Court Orders

It has been shown in several studies that children tend to comply with court orders when they feel their views have been heard. When they cooperate with court rulings, their parenting arrangements can be implemented successfully.


Improved Relationship with Parents

When children are heard, they tend to open up more, and this helps improve their communication with parents. Therefore, the relationship with them improves too, during and after the separation process.


Psychological Impact and Support for Children Involved

Cases of divorce or separation come with several challenges, and most of them are related to emotional and psychological well-being. The stress and associated breakdowns can be quite an overwhelming experience. While adults deal with these challenges in their own way, children find it hard to cope. The kind of psychological impact a child suffers also depends on their age. Hence, it is important to give voice to the children and ensure that their voices are heard and considered before making any decisions about their lives.


Ethical and Legal Considerations in Representing the Child’s Voice

Representing a child’s voice in any family law proceeding calls for careful consideration of the ethical and legal aspects. Legal professionals must keep in mind that when a child and his views are being represented, it is important to align the process with honesty and fairness. It is important to steer the child away from any potential influence, direct or indirect, and allow them the autonomy to express their views without inhibitions.


Furthermore, a lawyer needs to consider the age and level of maturity of the child. Expression and articulation of views are not so easy for a young child, whereas for a slightly older child, it may not be very difficult. Clarity in expression is very important to make decisions that work in the best interests of the child. The lawyer needs to make sure that the child’s views are expressed clearly and understood unambiguously.


The lawyer representing a child’s voice also needs to make sure that the views and opinions are kept confidential. The views of the child may be private and sensitive and therefore call for confidentiality. Moreover, the legal representative of the child’s voice should make sure that the child participates in the interviews voluntarily and is not under any pressure or coercion.


In the process of representing the child’s voice, it is important to consider all aspects of ethical and legal implications. A fine balance needs to be maintained between ethical considerations and legal obligations while dealing with cases involving a child and while representing the child’s voice.


Judicial Interpretation and Weight Given to the Child’s Perspective

Although the Family Law Act 1975 clearly states the importance of eliciting the child’s views and considering the child’s best interests, the weight assigned to the child’s views is quite subjective and depends on judicial discretion. Factors such as the child’s age, maturity level, and circumstances are considered before assigning weight to the child’s views.


Using procedures like family reports and child-inclusive mediation and with the help of Independent Children’s Lawyers, a fairly accurate assessment can be made of the child’s views and opinions. Judicial interpretation involves a more meticulous assessment of the child’s ability to express their views and the ingenuity of the expressed opinions. While older children’s views may be accorded more weight, those of younger children may be considered carefully before assigning weight to them.