In family separations, decisions must be made about the children's living arrangements and their relationships with each parent. The Family Law Act 1975 (Cth) stipulates that the best interests of the child are paramount in any decisions made by the court concerning children. One way to ascertain the child's best interests is to get insights directly from the child.
The Family Law Act provides that the court must consider any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views. However, there is no specific age at which a child can decide where they want to live. The court will consider the child's views, but it will also consider other factors such as the child's relationship with each parent, the likely effect of any changes in the child's circumstances, and any history of family violence.
The court does not typically ask the children to appear in court to express their views. Instead, the court may order a Family Report to be prepared by a family consultant. A family consultant is a psychologist or social worker with expertise in child and family issues. The family consultant will speak to the children, the parents, and any other relevant parties, and then prepare a report for the court with recommendations about the parenting arrangements that would be in the best interests of the children.
The family consultant may ask the children about their views and feelings, but they will not pressure the children to express a preference or make a decision. The children's views will be one of many factors considered by the family consultant in making their recommendations to the court.
In some cases, the court may appoint an Independent Children's Lawyer (ICL) to represent the best interests of the children. The ICL is a lawyer who acts independently of the parents and represents the children's interests. The ICL may speak to the children to understand their views and wishes, but their primary role is to represent the best interests of the children, which may not always align with the children's expressed wishes.
In family separations in Australia, the court may consider the views of the children, but it is not common for the court to ask to speak to the children directly. Instead, the children's views may be obtained through a Family Report prepared by a family consultant or through an Independent Children's Lawyer. The court will consider the children's views, along with other factors, in making decisions about the parenting arrangements that are in the best interests of the children. Ultimately, the court aims to make decisions that support the welfare and wellbeing of the children involved.