It is not uncommon for parents to have a fixed view that the only fair parenting order or agreement is for children to spend equal time with each parent. These expectations can hinder achieving agreement at mediation, particularly when such views do not align with the views of the children.
Parents need to be mindful and always consider what is in the best interest of their children and take into account the children’s views where possible. Mediators are also required to be child focussed and try to ascertain what the views of the children are, as children are recognised as having a right to have their views taken into account regarding where they are to live and how much time they spend with each parent upon separation.
The rights of children are internationally recognised within the United Nations Convention on The Rights of the Child (Article 12), to which Australia is a signatory. This does not mean that children can tell their parents what to do but it does mean that the children’s views must be considered when making any decisions which may affect them. The Convention encourages adults to listen to the opinions of children and to involve them in the decision-making process. These principles have been enshrined in the Family Law Act 1975 (Cth) which governs how the court determines parenting matters.
Whilst parents have a right to express their views on matters affecting their children, and also have a responsibility to do so, the views of the children cannot be ignored. The extent of the children’s participation in decision-making will, of course, depend on the child’s level of maturity and their capacity to form and express opinions. Teenagers’ views will carry more weight than very young children and this becomes critical as an agreement may become unworkable where a teenager refuses to spend time with a parent
Views of children can be incorporated into the mediation process where the mediator uses a child-focussed approach or a child-inclusive / informed practice. These processes are used to assist parents to make arrangements for children to meet the needs of their children. Decisions such as where the children live and with whom they spend time, what financial support they need, respectful communication between the parents and how the parents will manage major decisions for the children’s care, welfare and development can be framed with this input.
In child-focussed practice, mediators try to direct the parents’ attention to the needs of their children and bring into the mediation the child’s perspective. Child-inclusive practice involves a trained child consultant interviewing the child and providing feedback to the parents about the child’s developmental needs. Child-inclusive practice provides an independent assessment of the child’s views and provides an independent evidence base, to assist decision-making, rather than basing decisions on assumptions of what the child’s views might be.
Whilst children rarely want to be put in the role of decision-makers, it is critical to ensure whatever mediation process is adopted by parents, that the children have a say in the arrangements being made for them, post-separation. Children want their views to be taken seriously, as a sign of their parents’ respect for them. It is important that children are not exposed to pressure by parents’ manipulation or to damaging loyalty conflict. Parents may discover, through child-inclusive mediation, that the child has expressed views which are different from the parent’s understanding of the child’s wishes. This may be very upsetting to a parent and may mean that to accommodate the child’s wishes, they have to put the child’s needs before their own. A parent in a child-inclusive mediation needs to be willing to listen, without repercussions to the child, as to the concerns and needs of the children, to ensure that the arrangements agreed upon incorporate those needs and wishes.
It is always imperative to place the children’s best interests as the paramount consideration when making decisions for them. Children should not be embroiled in the parental dispute, but have a right to have their views heard without fear of losing their parents’ love and be punished. Decisions made at mediation do not need to be permanent arrangements and should be revisited from time to time taking into account the child’s changing views as they develop and learn to negotiate their new living arrangements.
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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.