Children aren’t chess pieces – Obtaining children’s views through a Family Report

In a recent case Family Court matter of Wallin & Wallin\ [2020] FamCA 774, Her Honour, Judge Bennett had to consider whether the Father could provide further evidence about parenting matters to update the Court about what had happened since the Trial and the delivery of judgment and whether the Father had satisfied a Rice and Asplund threshold – being that there had been a substantial change in circumstances to warrant a further Application. Specifically, the Father sought to update the Court that one of the parties 4 children (all aged 10 to 14 years) had been living with him. The proceedings had an unfortunately long history with Her Honour commenting that the parties had spent more than $1.25million in legal fees by 2017 and the proceedings had still not been finalised some 3 years later.

Her Honour concluded that the Father could seek further Orders. The parties’ 4 children were living with the Mother in Melbourne and were spending time with the Father in a town in regional Victoria. The Father was now seeking Orders for 2 of the 4 children to instead live with him.

Her Honour agreed that the Father’s Application could be pursued and made an additional Order for a Family Consultant to prepare a Family Report. Given the children’s ages, gaining insight into their views was of particular importance

Pursuant to section 62G(3A) of the Family Law Act, a Family Consultant must ascertain the views of the child in relation to that matter and include the views of the child on that matter in the report. Pursuant to section 62G(4) of the Family Law Act, the Family Consultant may include in the Family Report any other matters that relate to the care, welfare and development of each of all or any of the children.

A Family Report is a really useful and common way of obtaining insight into children’s views however as Her Honour asserted, they have their limits and it is important that the associated interviews with the children are conducted respectfully and that children are not forced to participate in the process due to their own parent’s prerogative.

Her Honour’s comments about the role of the Family Consultant, the evidence of a Family Report and the children’s views which were quite impressive.

At paragraph 30, Her Honour states

“Asking the children to express their “views” is an important part of our considerations but it also exposes children to the reaction of their parents to an extent which can be unfair and detrimental to the children vis a vis future treatment of the child by his or her parents, or his or her perception of authority figures and the ability to seek help and assistance. If the children are to be asked to express their views, they must be provided with a safe position from which to do so.”

Further at paragraph 31, Her Honour stresses that children participating in interviews with a Family Consultant must be respected and that

“[t]hey are not chess pieces to be moved around by their parents or the Court. They are individuals upon whom the decisions of their parents and the Court has great impact. It is important that the children perceive that they are heard and listened to, but, at the same time, not responsible for the outcome or the disappointment of one or other parent or his or her siblings.”

Her Honour referred to another recent case, Vaughan & Vaughan [2020] FamCA 653 which also addressed the complexities encountered when obtaining children’s views in family law proceedings. Her Honour states

“when parents are in conflict there can be only a fine line between having regard to the views of a child and exploiting the child’s view to support one parent’s position over the other parent’s position” and further that “evidence of children’s views is not material to be used at the convenience of the parents to support their respective cases and then disregarded. The views are not expressed in a vacuum, regard must be had to children’s views even after the litigation in which the views were obtained, has concluded.”

Her Honour also emphasised that children need to be protected from Court proceedings whilst also being respected as an independent person with their own views. At paragraph 33, Her Honour states

“[t]here is a fine distinction between allowing the child to participate in the decision making process and leaving the child with a sense of responsibility for the disappointment one parent may feel with an outcome”.

Her Honour referred to her own comments in a previous judgment, Harvey & Harvey [2018] FamCA 516 that

“children should know that their individual and collective views will be considered and not lost in the mire of their parents’ conflict. This includes taking account of their views and opinions in a dynamic sense, not only when the views conveniently support a party’s proposal or to just tick off one of the numerous additional considerations which we are required to take into account when making a parenting orders”

Her Honour also referred an early international case, and a statement of Lady Hale

“As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child's views and doing what he wants. […]But there is now a growing understanding of the importance of listening to the children involved in children's cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right.”

Her Honour compellingly highlights the complexity of obtaining children’s views in parenting proceedings and the delicate balance act required.

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