It is notable that the Family Law Act makes no reference at all to “young people” (as is customary in legislation dealing with those who are between the ages of 12 and 18 years). It refers only to “children.”
In my view, that omission is reflected more deeply in the provisions of the Family Law Act which deal with Parenting Orders – that is, with Orders of the Court after parental separation about who children will live with, and spend time with, and in what circumstances. I further argue that the omission is a significant concern, and may lead to young people being (or feeling) disempowered, and to parents (and others) paying insufficient attention to their views.
The Parenting Order provisions make no reference at all to the fact that “children” have evolving capacities and that as they attain capacity to make decisions for themselves, parental authority to make decisions for them wains. This is known as the concept of “Gillick competence” named after a famous English case in which the courts first recognised that a “minor” may be competent to make decisions for him or herself, without parental consent.
If you read the parenting provisions of the Family Law Act with a view to understanding what it has to say about when young people can decide issues for themselves, this is all that you would find:-
1. Parenting Orders may not be made in respect of a “child” over the age of 18 years;
2. Parenting Orders cease when a “child” reaches 18 years, marries or forms a de facto relationship; and
3. In deciding what Parenting Order to make, a Court must take into account (as an additional consideration) “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.”
Of course, in practice, Parenting Orders are rarely enforced against the views of a sufficiently mature young person, and young people often “talk with their feet”- effectively choosing for themselves whether or not the arrangements provided for in Parenting Orders should apply to them. Further, while not making specific reference to Gillick competence, the Family Law Act does implicitly adopt that concept through its definition of parental responsibility, which refers to “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”; that law would include the law on Gillick competence.
But these qualifications are known only to those experienced in this area, and are not evident on the face of the relevant provisions. This can have disempowering consequences for young people.
Some time ago I acted for a father whose children Eleanor and Stephen, aged 17 years and 15 years, wanted to move to a week and week about arrangement with their parents. There were Parenting Orders in place that provided for them to live primarily with their mother. While clearly there was little (if any) legal risk to my client in simply allowing Eleanor and Stephen to do what they wanted, Eleanor and Stephen did not see it that way. They knew there were Parenting Orders in place, and the terms of them, and believed (possibly as a result of what they had been told by their mother) that if they did not comply with them they or their father would be in trouble – indeed they thought the police would be called. Many thousands of dollars in legal fees later, new Parenting Orders are in place, and the week and week about arrangement is occurring.
I also acted for the distant relatives of a young woman, Sylvia, who, following a breakdown in Sylvia’s relationship with her mother, was taken by my clients to live with them overseas. Sylvia was expressing strong views that she wanted to live with my clients, and not to return to Australia. Again, there were Parenting Orders in place providing for Sylvia to live with her mother. In this case, the mother argued that my clients had committed a criminal offence in taking Sylvia to live with them outside of Australia. While, in my view, they had a ‘reasonable excuse’ for doing so, and hence a defence, nothing in the relevant provisions of the Family Law Act gave them any comfort that was so. Again, expensive legal proceedings were necessary to give effect to Sylvia’s views.
These omissions are bad enough, but there are other provisions which run clearly counter to the concept of a young person’s evolving capacity to make decisions for him or herself. The provisions for parentage testing are a specific example. “Parentage testing” is a relatively non-invasive procedure (usually involving scraping cells from the inside of the mouth) which enables the parentage of a person to be determined. Under the relevant provisions in the Family Law Act, a person cannot carry out a parental testing procedure on a “child” under the age of 18 years without the consent of a parent, guardian or person who otherwise has an order giving them authority to make such a decision. This is despite the fact that a young person with capacity can consent to far more invasive medical procedures (including surgical procedures). Further, a young person’s consent is not required to such a procedure; the Act provides that there can be no civil or criminal liability for carrying out such a procedure if the parent, guardian or person who has authority to make the decision, consents. This presents the prospect (which I would hope is theoretical only) of a young person being physically compelled to undergo a parentage testing procedure contrary to their views, and having no redress against those who compel him or her.
While many would say that the Family Law Act has been amended enough; that, in practice these issues are dealt with adequately and that we should be wary about trying to legislate for anything more in this area, in my view, these issues are worth further debate and reflection. Even if no legislative amendments occur, we might consider drafting Parenting Orders which acknowledge young people’s evolving capacities. This might include, in an appropriate case for example, making it clear that a Parenting Order only applies until the young people who are subject to the Order reaches a specified age or stage. Our practice and our advice to parents should certainly acknowledge the evolving capacities of young people, and encourage processes which allow them to have a voice in decision making about them.
Juliet Behrens is a Lawyer at Dobinson Davey Clifford Simpson, 18 Kendall Lane, New Acton, Canberra ACT and can be contacted on (02) 6212 7600.