If you’re a parent going through a divorce or a separation, you might think that you know what’s best for your children. But under the law, it’s not all about you.
A child’s views are often a very significant factor in determining parenting arrangements following a separation.
When determining parenting arrangements, Family Law Courts must take into account the child’s viewpoints, although must also consider the child’s maturity and level of understanding, in determining what weight to give to those views. In practice, views being expressed by a child of six or seven may be taken into account. And certainly by age 8 or 9 years, such views assume increasing importance.
Children are often ambivalent or reluctant to express views. There is a specific provision in the Family Law Act that no one can require or pressure a child to express particular views. It is recognised that it is often extremely difficult for a child to express views, particularly those that differ from one of their parents and particularly where that parent is their primary carer.
Parents can do enormous damage to their children by involving them unnecessarily in Family Law disputes and trying to unreasonably influence their child; particularly trying to convince them that they shouldn’t spend time with the other parent.
For this reason, the courts are careful when they evaluate a child’s views; particularly if there is a domineering, or embittered parent involved. So the courts take into account not only the child’s views as reported to the Court by their parents, but also by counsellors who see the children and provide reports to the Court. In some cases, particularly where a child is expressing strong views for change to their existing arrangements, the courts may appoint the child’s own lawyer to represent the child.
The questions is often asked; how long do parenting orders last and when can a child change or ignore orders? This is a grey issue. There is no set age when this occurs. In theory, parenting orders last until a child turns 18. But in practice, parenting orders tend to have a “use by” date. Once the children are at high school, it is unlikely a court will get involved or seek to compel a child to abide by orders which they don’t want to follow. Children can in effect “vote with their feet” by the time they are at high school and choose as to what parenting orders they follow. This can lead to enforcement proceedings if one parent says the other is influencing the child unfairly. But it is unlikely any court will make an order without ascertaining an older child’s wishes and is unlikely to go against the views of such children. It is important parents be realistic and work these things out themselves.
Increasingly, children are included and involved in the resolution process of their parents’ disputes at an early stage. A resolution process known as ‘Child Inclusive Mediation’ can be arranged by the parents. Or a similar process can be ordered by the Courts. In these processes, the child is appointed their own counsellor, who participates in the parental discussions and sometimes makes a report to the court.
This process can be a rude wake-up call to some parents; that their child is expressing different views than their own (often they are really saying they love both parents and want the dispute to end). Even quite young children appreciate having their views considered in a sensitive way, and Child Inclusive Mediation can help the parents to focus on their child’s best interests and can result in a satisfactory and long lasting resolutions.
* Andrew Corish is an Accredited Specialist in Family Law with Corish & Co Specialist Family Lawyers