Children's access to justice: an examination of a child's right to participate in parenting decisions in Australian family law

This chapter explores the scope of children’s access to justice in Australian family law parenting decisions. It adopts a rights-based approach, focusing on a child’s right to participate in decisions that affect them, as provided by the Convention on the Rights of the Child (CRC), Article 12, to assess children’s access to justice in these decisions. In this assessment, the chapter considers the legislative requirements for making a parenting order under the Australian Family Law Act 1975 (Cth) (FLA). Provision for children’s participation under the FLA is through the court’s consideration of children’s views in determining what is in the best interests of the child. The chapter examines the scope provided to children’s views in the various in-court and out-of-court decision-making processes and the support provided by court personnel to promote the child’s participatory right. It is evident that the FLA’s approach is informed by the CRC, but on closer examination, it significantly falls short of protecting the child’s participatory right. This is evident in the final section of the chapter where the UN Committee on the Rights of the Child’s understanding of the child’s participatory right is used as a benchmark to measure the Australian family law’s approach.