The views of a child

The Family Law Act provides that the views of a child can be considered in determining what arrangements are in their best interest following the separation of that child’s parents.

The Courts most often obtain the views of a child with the assistance of an expert counsellor who will meet with the child in an environment far less stilted and foreign than a courtroom and talk to the child about their relationship with both parents and any other concerns they may have about future arrangements. That counsellor then prepares a report for the Court.

A child won’t be required to give evidence in a courtroom. This is due in great part to a concern as to the psychological harm it would do a child to have to sit in front of both parents and state a preference between the two of them. But it is also done this way – through the help of experts – precisely because the counsellor’s are experts – they have the skills to ask trick questions and listen for an answer that may be hidden.

Time and again the view provided by a child to a Court counsellor will be a shock. Not necessarily to the Judge, or even the lawyers, but to the parents themselves.

This shock is somewhat an understandable reaction to a very stressful and emotional situation - by the time a matter has reached final hearing parents are usually entrenched in their dispute. They have formed a firm view on why they are right and why the other parent is wrong.

But central to family law litigation is a child. A child who may have been expressing their view all along.

In a case from late last year, Delahunty & French, the Court went so far as to rebuke both parents for their lack of focus on their child.

In that case, the Court appointed expert, known as Mr P, became aware of a story that the child had written at school. The Court noted that while this piece of writing may not have concerned the teacher or the school, it was certainly of concern to Mr P.

The heading of the document was “children should have a say.” The child wrote that adults buy and build houses and children should at least get an opportunity to decide where they lived and who they wanted to live with.

In delivering judgment the Court noted that much of the evidence was about the parents “even though they may not have seen it that way”. The Judge noted that the child had witnessed many very bitter exchanges between her parents, including on one occasion when the police were called to her school assembly and following one such incident the Court noted "the parties had a dispute about what had happened in emails thereafter and again. it had nothing to with the child."

So how can you spot the views of a child during a dispute without it ever getting to the point that the parties in Delahunty & French did?

I think some clues can be found in the phrases I have seen repeated time and again over the years:

• “Please stop talking badly about each other in front of me. Even though you hate them they are still my parent. It makes me feel bad when you talk about them like that.”
• “Please don’t talk about me as if I need to be managed. If I hear that you would rather go away with the girls on “your weekend” I feel like you don’t want me.”
• “Stop telling me I’m being dramatic. I’m just sad/scared/hurt/frustrated/ disappointed/angry/depressed about what is happening.”
• “When all you talk about is who is getting the house or the car or the fridge I think that all you care about is stuff and not me.”
• “Please don’t throw away a gift I receive from them. It makes me feel like I can’t share happy things with you.”
• “Your new “friend” is not my friend. Sometimes I want to spend time with just you.”
• “Please get on the same page! When you let me get away with stuff just because you want to be fun I get yelled at when I go back. I’m confused.”
• “It’s okay if I do something with them and not you. It’s just because they are better at it/that’s when it was on. I don’t love them more.”
• “You’re supposed to protect me from bullies, now you’re just being one.”
• “Stop acting like a child. Can’t you both find a way to be at my party/sports carnival/concert/game?”
• “Stop saying “I’m just like …” when I do something bad. It hurts me because I know you don’t like them and then I think you don’t like me.