Children's “Wishes” in the Australian Family Court: Are they Wishful Thinking?

The aim of this article is to reflect on the current practices in family law in Australia in relation to children's participation in the divorce process and to ask whether the legal system is fully acknowledging the extent of children's psychological involvement. From the legislative perspective, children's “wishes” as a form of participation will be examined as one of the factors in determining the “best interests of the child” in residence and contact proceedings (formerly custody and access). Indeed, the narrow legal definition of divorce by its nature limits what is seen as a child's “best interests”. Therefore, this article will follow children beyond the legal limits of granting a divorce and consider children's post-divorce adjustment. The process for obtaining a divorce is often a significant legal (and psychological) event in the life of any family and children (and parents) must continue to “participate” in the aftermath of the legal process that has brought about family change.