Views of the child
Under the Family Law Act, any views expressed by a child must be taken into consideration to some extent, even if the child is very young. The weight that the child’s views will have on the final decision will, however, be affected by the child’s age, maturity and level of understanding, and the court may eventually conclude that that the child’s views on an issue are not the same as the child’s best interests when all the other factors are considered.
It is arguable that the child’s views have less weight since the 2006 Amendment Act as against the ‘primary considerations’. The child’s views are listed under ‘additional considerations’. If there was a conflict between a child’s views and a factor listed as a ‘primary consideration’ (for example, the benefit of the child keeping a relationship with both parents) then it is likely that the primary consideration will be given more weight in the final assessment of what is in the child’s best interests.
Traditional form of litigation
Prior to the 2006 amendments, a parenting case in a family law court proceeded in the same way as any other civil law case. There were usually lawyers for each party who gathered whatever evidence they could find to convince the court that their party’s version of the facts was the correct one, and then to make the orders that they wanted. Even when the parties did not have lawyers and represented themselves in court, the process was inevitably ‘adversarial’, being in practice, as much about trying to destroy the case of the other party as to convince the court of your own.
This often led to the public airing of unpleasant, personal, irrelevant or untrue facts about people and increased the level of hostility between the parties. Children, particularly, suffered considerably by exposure to the high-levels of stress and conflict involved in a long-running family court case run in the traditional mode.
A new, less adversarial process from 2006
The 2006 amendments introduced a new style of litigation called ‘child-related proceedings’ that draws on European rather than English civil law tradition. As in Europe, now in Australia in a child-related family law case, the judge has a great deal of influence on the way the case proceeds. Lawyers have less influence. In a child-related case, the judge questions and discusses issues with the parties directly. He or she often attempts some dispute resolution to give the parties a final opportunity to compromise and resolve the issues themselves. Instead of listening passively to the witnesses and evidence chosen to be brought to court by the parties’ lawyers, the judge will say what witnesses he or she will hear and on what topics. The judge can make orders, deciding individual issues in dispute, at any point in the case.
Child-related proceedings result in shorter cases and often more positive outcomes for parenting cases. Parties, and particularly self-represented parties, report feeling less frustrated and confused by legal technicalities and have more opportunity to speak and explain themselves freely. Judges use new powers to shut down or exclude evidence designed only to criticise or upset the other party.
Evidence of children
Before the 2006 amendments, the evidence of a child could usually only be put to the court through the evidence of an adult witness, usually one of the parents, who would report what the child allegedly said. Not surprisingly, parties often brought conflicting reports of the child’s viewpoint to the hearing. Now, however, the judge is able to receive more independent evidence of a child’s views. Although the judge does have the power to interview a child, more usually a ‘family consultant’ will be engaged to speak to the child and will then report back directly to the court.