Growing up in the 1970s, I was a pretty opinionated kid and indeed some of those older and taller folk around me would have said you just couldn’t shut me up. A tiny pioneer for kids in an age where children were mostly seen and not heard. I remember with sadness and much melancholy my parent’s divorce in 1975, a mysterious event that I had little say in, and where no counsel was sought from me about what my best interests might be.

Has much really changed?

When Australia ratified the United Nations Convention on the Rights of the Child (UNCRC) in 1990, it accepted that children would enjoy the rights set out in it. Included in these rights are that where a child is involved in and affected by any judicial proceeding, that child should be given the right to freely express their views and that age in itself is no barrier to a child having full participation in any judicial process.
However, in Australia the views of children still remain secondary. Children’s views are hampered by legislation that treats their input as not a primary but rather an additional consideration; a common law centred around predictability and precedent; and a judiciary reticent about hearing children’s views.
 Professor Lawrie Maloney notes that children are not passive recipients of our wisdom, but active constructors of their own worlds, and with this in mind a move is needed beyond the “best interests” rhetoric, to legislation and family court processes that better reflect the inclusiveness of children.  
Paradoxical  positions on children’s views
When it comes to protecting a child’s rights, the UNCRC makes it clear that governments have a responsibility to take all available measures to make sure children’s rights are respected, protected and fulfilled.
However in contrast to this, the UNCRC also recognises the interdependence of parents and other family members in mediating a child’s level of functioning. It states that governments need to respect the rights and responsibilities of families to direct and guide their children so that as they grow they learn to use their rights properly.
For legislators the paradox was set, children must have a right to be heard but the role of parents in directing and guiding their children must also be prominent.

In reviewing the current legislation concerning a child’s right to be heard, a familiar pattern emerges ensuing that children’s views are secondary ones. For example, a child’s view in family law proceedings is not a primary consideration but rather an additional one, that is overshadowed by a necessity for the child to have a meaningful relationship with both parents.A child who doesn’t wish to have this “meaningful” relationship would find its objection a secondary one in the eyes of the court. But this was not always the case under an earlier version of the Family Law Act (FLA), where a child’s wishes were first in the list of things the court had to take into account. (The long amended s 68F(2)(a)).
The court must consider:
any wishes 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 wishes.
It is also interesting to note that Part VII of the FLA’s objectives and principles regarding children fails to mention any right of a child to express themselves in family court proceedings, which clearly goes against the child’s right under the UNCRC.  This section’s main emphasis is on promoting relationships between parents and protecting children from harm.

Family Consultant Reports Rarely Indicate A Child’s View

The primary way the views of a child are presented to court is via a family report. However, as Dr Robyn Fitzgerald and Professor Anne Graham have commented, the participation of a child in such a report must be looked at in terms of the legislative pathway the courts take to arrive at parenting orders.
As such, the primary considerations of achieving meaningful relationships with both parents and protecting the child from harm predominate. Additionally, children are given no opportunity to provide input on the amount of time they may or may not wish to spend with each parent. And if you find this hard to believe, have a look at sections 65D-DAA of the FLA.

At this circus, no room for the kids…

Although the FLA encourages parents in reaching agreements to have regard to the best interests of the child, there is no direct input offered to the child apart from a diluted version of their views written by a family consultant. The report should mention the child’s views but the recommendations must represent the child’s best interests.

The lawyer with no client – welcome to the fuzzy world of the ICL

In a small number of cases the court may also appoint an Independent Children’s Lawyer (ICL) to represent the best interests of the child. The ICL must ensure relevant views of the child are put before the court. However, the ICL is neither the child’s legal representative nor is obligated to act on the child’s instructions during proceedings. In fact it is better to think of the ICL’s client as the Family Court, because a child has no right to dismiss an ICL if they are unhappy with any representations made.
Parallel this with New Zealand’s Family Court where a child can be provided with a lawyer who will act as “lawyer for the child” and not, as in Australia, for the child’s best interests.

Reluctant Judges?

It seems that in light of the legislative restrictions placed on the input and involvement of children, the “less adversarial trial” (“LAT”) model introduced to make child proceedings in the Family Court more child focused and flexible, is akin to a cart without a horse.  The paradox of common law authority in Harrison v Woollard, where the Full Court stated that “a child’s wishes must not only be considered, but must be shown to be considered in the reasons for judgement”, pales in significance to the paramount aim of the court to apply the two FLA primary considerations. Furthermore, in the principles the court must give effect to in conducting child related proceedings, having regard to the child’s views receives no mention.
It’s important to note that the family law rule regarding interviewing of a child in family law proceedings by a judge was removed by the Family Law Amendment Rules 2010.  Perhaps an indictment to the fact that research by Dr Michelle Fernando has shown that most Family Court Judges have never actually met with children in parenting disputes. This reluctance still lingers despite Richard Chisholm, a former Judge of the Family Court, stating that it is important for children’s views and experiences be heard by the judiciary.

Letting the kids speak up

This desire of children to express their views rather than have them filtered via social workers, psychologists and ICLs has been accepted and appropriately legislated for in countries like New Zealand and Scotland.
For example, the Care Of Children Act 2004 (COC) in New Zealand states that children must be given opportunities to express their views and these must be taken into account. The COC also requires a lawyer acting for the child to explain parenting orders in a language that the child understands. Peter Boshier, the former Principal Family Court Judge in New Zealand noted that the COC gives the Court a less adversarial model that offers “a realistic view of the child’s view and for the child…a meaningful way to participate”.
Contrast this with the expressed disapproval of  Australia’s recent Family Court Chief Justice to the practice of judges ascertaining children’s views. [Here I refer to former Chief Justice Bryant commenting in The Australian article , ‘Judges Urged to Talk to Kids in Family Disputes’ ] 
However, when Australian judges do listen to children they find it very helpful when making decisions about parental orders and custody as was shown in ZN v YH and Child Representative.  Indeed, as the New Zealand model has shown, the key to fostering a child inclusive family law proceeding is to not pretend that there is this magical commodity called the “best interests of the child” that must be in the forefront of judges, lawyers, and parents minds, and instead develop a less adversarial model that takes the time to listen to and understand children in their own unique way. 
Solutions
Children can only feel comfortable expressing themselves when they are offered an environment that helps them cope with the bereavement and change they endure when their parents decide to separate. The current legislation and the common law processes fail to fully comprehend this.
Dr Robyn Fitzgerald notes that a move is needed towards a national framework for children’s participation in family law processes. In this framework, the key is to both conform with the UNCRC and elevate children’s views to an object and principle of the Family Law Act and a primary consideration in section 60CC(2).

So how do you get the child’s voice heard?

The current Less Adversarial Trial (LAT) model, whilst being more flexible and child-focused, still does not specifically encourage the participation of children.
In addressing this, judicial meetings with very young children might involve the judge interacting in “toy play” in the company of a child psychologist helping to interpret the child’s views. For an older child, it may simply be getting an invitation to speak freely with the judge in an environment that lacks the formality of chambers.
Judges must also be given  training and guidelines to help facilitate a child’s views being heard and understood.  As a prerequisite to this, the FLA needs to be amended to create a pathway so that family law proceedings and judges can embrace this. It is important that judges and children both feel comfortable with the process.

It is children who are the victims of their parent’s disputes and eventual separation, and it is essential that the courts and all the players pay them the recognition and respect they deserve by giving them a voice. The great logic in fostering this inclusiveness, according to Professor Judy Cashmore, is that children’s views have been proven to lead to better decisions and happier workable arrangements in family law proceedings.

So I guess they were right all those years ago, you just can’t… and shouldn’t shut the kid up.

Other helpful reads from The Legal Eagle…

What happens to my kids when I separate or divorce?

The secrets that help to win family law cases

What happens when kids only want to spend time with one parent?

Does what the kids feel actually matter?
Our Family Law Act in Australia makes it pretty clear that  the ‘best interests of the children’ is the main consideration for the court when making decisions about parenting. But what indeed happens when Mum and Dad separate and the kids don’t want to spend time with the parent who isn’t the primary carer?
A recent decision in the Federal Circuit Court (Weller & Weller from 2017), makes a decision that leaves little doubt that the opinion of the children isn’t an overriding reason to stop dad (or mum) from having visiting rights.

This case involved two children, aged 11 and 14. They had told both the mother and the court appointed Family Consultant, that they were very unhappy and resistant to spending time with their father. One of the children, during a ‘Child Conference’, said to the Family Consultant that their father, on a visit to his home at Christmas, had made them stand out in the rain with all the Christmas presents he had given them because he said they had been ‘ungrateful’.
The court in its judgement noted that it is not for children to decide where they live, and if they spend time with the parent with whom they do not live. This is a matter for the parents, and if the parents cannot decide or agree, and if there is an appropriate application before the Court, then it is a matter for the Court.

The Court of course is bound to follow both the Family Law Act, and previous decisions in the court, in determining primary considerations like this. 
And in doing this, the Court must give greater weight to the need to protect children from physical or psychological harm and from being subjected or exposed to abuse, neglect or family violence. This greater weight will then override the potential benefit of a child having a meaningful relationship with both parents. The court must ensure that any order it makes does not expose a child to an unacceptable risk of family violence.

However, if the issue of violence is not in the mix, as was the case here, the Court must apply the provisions of section 65DAA of the Family Law Act which looks at children spending EQUAL time with their parents.
There’s an important proviso here, you see where the Court finds that it is not in the children’s best interests or practicable (think here where a parent lives a considerable distance away from the children), then the Court must consider the children spending substantial and significant time with the parents. Of course these words ‘substantial’ and significant’, don’t have any fixed meaning.

.The two children in the Weller matter attended ‘reunification therapy’ and in one of the sessions, when their mother was also present, they all brainstormed on how they could repair their relationship with the father, including:
More compromise and discussion relating to activities they would do together; a rule regarding not swearing; that Dad would attempt to ‘not get so angry’ and that both parents would agree not to say negative things about the other parent in the presence of the children or on social media.
[The Legal Eagle covered “the destructive powers of parents dissing each other on Facebook” HERE.]
Later at a different session, where the father attended with the children, the feedback from the kids regarding their feelings and concerns about contact with their dad was passed on to him.
The children and the father agreed on a range of things that they would each try and work on to improve their relationship. A “Contract” was drawn up which listed, among other things, the following matters:
1. No swearing
2. No unkind comparisons 
3. No bum touching
4. No calling one child fat
5. Replying to msgs and calling Dad
6. No “rushing” by Dad

Even though the kids were unhappy spending time with Dad because of his off putting and at times insensitive behaviour, the court felt that the issues raised by the children were not enough to allow them to stop seeing him. While the Court appreciated that children see things differently to adults, and that in children’s eyes some things may appear more important than they would in an adult’s eyes, it’s role is to consider ALL of the available evidence and make an assessment based on the evidence. The court did allow for a final Family Report to be done to assess whether the future visits were working well. Final orders were then put in place.

In these sort of matters the court does have wide discretion in the weight it gives to certain factors. As children move closer to an adult age, their opinions are often given much more weight. The strength of their views, and the length of time they have held them is also important. Additionally, if the child’s views are well thought through, or are as a result of pressure being put on the child, these things will carry weight in the court when making parenting decisions.

As the court noted in this matter, “The Court is charged with the task of assessing what is in these children’s best interests, and it does this by, in part, turning its mind to weighing the probabilities of competing claims and the likely impact on children in the event that controversial assertions are acted upon or rejected. This includes the possibility of these children continuing along a trajectory of a fractured relationship with their father which may well be on its way to being beyond repair, if it is not already.”

And indeed what is the greatest risk in the long term?
Is the risk of losing a child’s relationship with one parent the greater risk?
Is there a long term psychological effect on a child who grows up and has no contact with one parent?

In almost all cases except those involving sexual, physical and psychological abuse, I feel that the Family Law Act has got in right in presenting a roadmap that endorses it is in the best interest of the child to have both parents substantially involved in their child’s life.

Find out about more about what happens to the kids when you separate HERE.

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What does the law say about child support?

The Child Support Scheme (CSS) began in 1988 and it’s job is to enforce the right of children to be supported by both their parents. The CSS is based upon the Child Support Act which requires 2 important things:

♦ That children receive the proper financial support from their parents (that they are liable to provide). So what that means is if one parent isn’t earning much while the other is doing much better, there will be a greater liability for the bigger earning parent.

♦ That periodic amounts of child support payable by any parent towards the upkeep of the children are paid on a regular and timely basis.

(The WA Parliament, because WA likes to have its own family law regime, has also created laws that adopt what the Commonwealth child support laws say.)

What if my ex doesn’t want to pay child support?

As mentioned, the law states that parents have a duty to financially support their kids (both birth and adopted). Even if one partner believes the child was an “accident” and doesn’t want to be involved, they are still required by law to financially support that child.

A parent is liable to pay child support if they are a legal parent of the child AND either a Resident of Australia, or a resident in another country that cooperates with our child support rules.

So who runs child support?

The Child Support Agency (CSA), and they are part of the Department of Human Services.

Their role includes assessing amounts of child support payable, with a slightly complicated formula but don’t worry because the  assessment in essence takes into account the income of both parents; the care arrangements that you both have in place; and the number of dependent children you have (including any dependent kids from other relationships).

The CSA can also collect and transfer child support payments, when it’s requested by parents (or carers). Some parents don’t do this because they prefer a more direct and private way of paying child support that doesn’t involve the CSA having to handle the payments.

Making an Application – Parents

A parent can apply for a child support assessment for a child if they are not living with the other parent of the child as their partner on a genuine domestic basis. Parents can apply for an administrative assessment of child support for a child regardless of the amount of care they provide for their child.

When a parent makes an application for child support to CSA, it means that both they and the other parent will be assessed in respect of the costs of the children and the amount of child support payable will depend on the incomes of both parents and the percentage care you each provide for your children.

The percentage of care you undertake is important in the assessing child support and is usually determined according to the actual care that each of you have of the child. It also pays a big part in the formula used to decide how much child care you may be entitled to.

This actual care can be reflected in a care arrangement between the two of you or with non-parent carers. This agreement might take the form of a written agreement, parenting plan or court order in relation to a child’s care.

Parents are required to notify CSA about the care arrangements and agreements for the children.

Your income is another important consideration in working out the amount of child care to be paid to the primary carer. If either of your incomes and/or care percentage changes, it’s important to let CSA know. It may mean a new application for child support is needed.

If either parent is not a resident of Australia on the day of the application then there are additional considerations.
And it’s comforting to know that Australia has reciprocal arrangements with many countries around the world that will enforce your rights to child support.

So how do we make an agreement about child support?

Parents may make a child support agreement and can choose to organise collection themselves or collection by CSA. Parents can make agreements regarding the way in which child support is paid, for example through periodic cash payments, non-cash payments or a lump sum payment (including by way of property settlement).

Here’s some information on making a child support agreement

There are two types of agreements: binding child support agreements and limited child support agreements.

The main difference between them is that parents are not required to obtain legal advice before entering into a limited child support agreement. These limited agreements can also be terminated if you both agree, and if not, by a court order. Also, the amount of child support payable in a limited child support agreement can’t be less than the amount calculated in your child support assessment.

Find out more about limited child support agreements HERE

Find out more about binding child support agreements HERE

Both these agreements must be in writing and signed by both of you and any other person taking a major role in the child support who is part of the agreement.

HERE is the official form the government provide for a child support agreement – read up about what you need to know before you both fill it in and agree to it. 

Applications from non-parent carers

A non-parent carer can apply for an administrative assessment of child support for a child but they must be an eligible carer of the child and are not living with either parent as a partner  on a genuine domestic basis and don’t have care jointly with a parent of the child. If this situation applies to you, talk to the staff at the CSA.

Estimate what your child support may be with this CALCULATOR

(You should not rely on an estimate as a guarantee for future income or payment.)

When does child support end?

There are a few scenarios when child support ends:

♦ Normally child support will end after your child has turned 18. It is possible for child support to be extended after 18 years of age if you apply for child support to continue until the end of the school year during which your child turns 18. Additionally, if your child has a physical or intellectual disability, extensions may also be possible.

♦ if your child is adopted by someone else.

♦ If your child marries or starts a de facto relationship.

♦ If neither of you is caring for the Child

♦ If you both restart your relationship.
It’s also important to note that just because a child starts working before 18 that doesn’t mean you automatically stop paying child support. However, if you are in a situation where your child is over 18 and still requires support, you definitely have grounds to appeal any assessed amount if that child is earning money.

What if my child needs help but is over 18?

Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. However, where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child.

Other resources

The Department of Human Services (Child Support) also provides some handy information for all parents (whether married, de facto or same sex) on how the child support assessment works.

Don’t forget to check out all the great family law solutions we have for you > HERE

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