Balancing children’s wishes in parenting disputes

Family separation is a difficult and stressful time for all involved, particularly any dependent children. Every child will vary in their ability to cope with the changes in their family situation. 

The Family Law Act is focussed upon the best interests of the child; in fact it is the paramount consideration in determining parenting applications by the Court but the wishes of the child are only part of the wider considerations of the Court when making parenting orders. 

As a first step in any parenting dispute, separated parents are required to make a genuine attempt to mediate their issues prior to filing an application in the Court seeking parenting orders. A certificate from the mediator is required before the Court will file the application (except in cases of urgency or family violence). Mediation is also known as Family Dispute Resolution or ‘FDR’.  Usually FDR only involves the parents, but in some situations, particularly with older children, input from any affected child may be beneficial. 

Most FDR practitioners offer clients the option of a child inclusive mediation where it is considered appropriate to their situation. This allows the child to have a voice in the negotiations through a third party without being directly involved. If this option is followed, both parents attend separate and joint sessions with the FDR practitioner, who will explain the process to them and make a judgment as to whether it is appropriate. The children are interviewed separately by the child consultant who then attends a further session between the FDR practitioner and the parents (in the absence of the child). Feedback from the child via the child consultant may be useful in negotiating parenting arrangements and cooperation between the parents. 

In the event that the mediation leads to an agreement, the FDR practitioner will assist the parties to draw up a parenting plan that both parties will sign.
There is also an option to make an Application for Consent Orders in terms of the agreement reached if binding orders of the court are required. 

Where mediation fails and the matter proceeds to Court, the Court will usually call for a Family Report prepared by a court-appointed family consultant, who will meet with the child, the parties and any other person relevant to the child’s care. In this way, the child’s views may be expressed to the Court. Children are not generally called as witnesses to a family law dispute but the family consultant may give evidence in Court.

The Court must take into consideration any views expressed by the child as part of the whole picture but the Court is not bound by these views. Such wishes are always balanced against a determination of the maturity and understanding of the child.