Children in family law proceedings: They may be seen but they heard?

Over the last few decades, there has been increasing interest in the extent to which children should be able to participate in family law decisions that affect them. The ongoing discussion has been centred on how children should be heard and whether their views are in fact recognised and respected in practice. However, despite this growing interest, children continue to report feeling isolated and excluded from Australian family law decision-making processes. This paper discusses the ways in which children are 'seen and heard' in the Australian family law system. It pays particular attention to the protectionist stance currently adopted by the Family Court of Australia, which favours hearing children's voices via filtered mechanisms, such as through appointed Independent Children's Lawyers or through family reports prepared by Family Consultants, as opposed to hearing from children directly. In this context, it examines the reluctance of Australian judges to embrace the practice of judicial interviewing. The paper goes on to consider whether the introduction of mandatory 'child-inclusive' family dispute resolution would go some way to addressing concerns about the inclusion of children's voices in parenting disputes. This paper concludes that children should have direct, meaningful involvement in family law decisions that affect them. It argues that hearing from a child directly benefits children and decision making far more than hearing a child's voice through filtered, indirect means. It also contends that if a child wishes to express their views directly to a court or judge that they should be afforded the opportunity to do so as, like parents, they have to live with the decision that is ultimately made