In children’s cases do children have a say?

The policy of the Family Law Courts is to encourage the parents to resolve issues themselves when it comes to the children.  It is always best for the children’s parents to make decisions about their care and welfare.  There is a strong emphasis on mediation in the early stages of every case involving children.

In some cases there will be disputes between parents which cannot be resolved by mediation or other negotiations.

In such cases there is a possibility that the children will be separately legally represented.  In other words an independent lawyer will represent their interests and make proposals and recommendations to the Court.

The lawyers who do this work are generally appointed (in South Australia) by the Legal Services Commission (Legal Aid).  These lawyers have undergone specific training in order to carry out their role as Independent Children’s Lawyer (or “ICL”).

The parents are required to contribute financially to the cost of this representation.  The fees will be charged to the parents usually on a 50/50 basis, using the Legal Services Commission scale of fees.

The appointment of an ICL is only done in the more difficult or serious cases.

It is also possible for the wishes of the children to be expressed to the Court by way of certain reports which may be ordered by the Court.  These include an interim memorandum which is commonly ordered in the early stages of the case.  This is carried out usually by a Family Consultant who is employed by the Court.  If the Court orders the Report to be “child inclusive” then the Report will usually contain some assessment of the children’s views and recommendations thereon.  These Reports are of necessity brief.

A more extensive report is known as a Family Assessment Report.  These are commonly, but not always, done by private psychologists or other qualified practitioners and the cost thereof will need to be paid for by each of the parties, usually on a 50/50 basis.  Due to finding constraints the Court is not able to prepare such reports in the majority of cases. 

A Family Assessment Report is a more comprehensive assessment of the family and the parties in dispute.  It may include a new partner if that partner has significant contact with the children.

It is important to remember that a Court will not necessarily do whatever a child says that they want.   The Court has to balance a number of factors and issues when considering what Orders to make.  The views of the Independent Children’s Lawyer can be very influential here.

As lawyers who practice in this area we often hear that what a child or children want is for their parents to stop arguing and fighting.  In most cases they do not want to have to choose between one option or another.  In this regard it is important for parents to be as even handed as they can be notwithstanding their views about the other party.

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