The UN General Assembly adopted a Convention on the Rights of the Child on 20 November 1989. Australia ratified the Convention in 1989.
One area where the Rights of the Child come under scrutiny in Australia is children’s ability to express their wishes in Family Court cases dealing with whom children live and how much time they spend with another parent or grandparent.
The Family Law Act was not amended to reflect Australia’s ratification of the Convention until June 2012. Article 12 of the Convention states that a child has the right to express his or her opinion freely and to have that opinion taken into account in any proceeding affecting the “matter of the child”.
In contested matters in the Family Court involving children, there is no sufficient representation of the wishes of the children unless there is an:
- Independent Children’s Lawyer; or
- Single Expert Witness; or
- Interview conducted by a Family Court Consultant.
In response to this, the Albanese Government are drafting the Family Law Amendment Bill 2023 (“the bill”). Previously, the Family Court would operate under a presumption of “shared parental responsibility”; a term which was widely misunderstood as shared care. The proposed bill seeks to abandon this presumption, and instead focus more heavily on the best interests of the children at the center of every legal determination.
One way the bill will accomplish this is by mandating a need for the Independent Children’s Lawyers (“ICL’s”) to actually meet the children which they are representing. This increased requirement in the Act forces ICL’s to dig deeper into their matters and provide evidence before the court that is significantly relevant to the children’s best interests.
Furthermore, the bill will require family report writers; court appointed experts, and single expert witnesses appointed under Chapter 15 of the Family Law Act, to be more strictly regulated for the standard and quality of the evidence and services provided to the court.
Other areas of change are set out in our previous article, The Federal Government’s Plan for a Simpler, Safer Family Law System. Whilst the proposed amendments go some way to addressing the need to ensure that a child can express their views, there are many circumstances where contested cases won’t have the advantage of an Independent Children’s Lawyer (who are largely funded by State Legal Aid bodies across Australia); a single expert witness or Family Consultant.
This also says nothing about the multitude of consent orders (where the parties agree orders) that are made in the Family Court determining where children will live and how much time will be spent with the non-resident parent, where there is no taking into account of the children’s wishes at all. Whilst the proposed amendments to the Family Law Act are a step in the right direction, there is still a long way to go before Australia can say it is truly compliant with Article 12 of the Convention.
Lynn and Brown Lawyers encourage anyone who has questions regarding children’s rights and the arrangements of parental responsibility to get in touch with one of our experienced family lawyers. You can contact us at www.lynnandbrown.com.au or by calling 9375 3411.
About the Authors: This article has been co-authored by Manav Patel and Jacqui Brown. Manav is in his final year studying a Bachelor of Commerce with a Major in Business Law and Finance. Manav will commence his Juris Doctor in 2023 at the University of Western Australia. Jacqui is a Perth lawyer and director at Lynn & Brown Lawyers. Jacqui has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.
