Familial Issuea Between Husband and Wife

Running head: FAMILY LAW
FAMILY LAW
Name of the Student
Name of the University
Author Note

1FAMILY LAW
Introduction
In a familial issue, especially between the husband and the wife, it is the children who
suffer the most. They often face challenges of understanding the gravity of the matter along
with the consequences that he or she would have to go through, sooner or later (Drapeau et al.
2017). They either feel traumatized due to the breakdown of their parents' relationship or they
become reluctant and indifferent towards the family, gradually starts to drift away from the
home and then gradually indulging into anti-social activities (Alrc.gov.au 2019). In case of a
broken marriage where the couples are contesting for a divorce in a court of law, the children
are often manipulated by their parents in order to give evidence or to express their wish in
favour of one of the parent (McIntosh, Symth and Kelaher 2011). Therefore it is often argued
by social scientists and experts that it would be wise not to involve children in the court room
affairs. While, it is argued by some that a traditional court system could bring clarity to the
judgement of the children pertaining to the difficult situation at home, thereby letting him
make a decision of his own as to what he wants from his parents (Field 2006).
Therefore, for the purpose of this research, the researcher supports the view that it is
wise to opt for other arrangements, instead of moving the court in context to settle familial
issues where a child is also involved. This paper would strive to critically discuss the
approach of avoiding the traditional court system for encouraging parents to try and agree on
arrangements for their children without having to go to court. It would, however, counter-
argue the necessity of approaching the court in regard to familial disputes under certain
situations.
Children’s involvement in legal proceeding
A publication by the Australian law reform Commission (ALRC Report 84) discusses
the positive and the negative side of making a child open to court proceedings related to the

2FAMILY LAW
separation of his parents' marriage (Alrc.gov.au 2019). It holds the view that children are
traumatized whenever they are directly involved in litigations in relation to the breakdown of
their parents’ relationship. Children are often manipulated by their parents so that they could
be used as: a) a tool to serve favourable witness, or b) an ace evidence to draw attention and
sympathy before the court (Alrc.gov.au 2019). While several other researchers and social
scientists have suggested that it is the right of the children to be given the opportunity to
participate in the court proceeding of their parents legal separation, so that they could choose
whom they want to stay with after his parents are the divorced. Differences have been set
pertaining to the consequences that might occur if a child is made to participate directly or
made to give evidence in a court of law regarding the dispute of their parents’ marriage that
subsequently ends up in separation. It is observed that a child’s participation in the
proceedings of a family court needs guidance and interventions to ensure that the level of
participation is suitable to the child and that the child is capable of handling the pressure
(Alrc.gov.au 2019). Section 68H of the Family Law Act 1975 is of the view that children of
extreme tender age must not be pressurized to be a part of the court proceedings however
matured children could be included as a witness and even a party to the litigation and are
given the free will to express their desire to do so. A Report to the Chief Justice of Family
Court of Australia, however, argues that the involvement of children in a legal proceeding of
deciding the marital status of a couple and subsequently the settlement of the guardianship of
the children is vital and in some way benefits the children, as most of the times the children
tends to guide the court to take the best decision for them (Familycourt.gov.au 2019).
The Law Society of NSW IP Submission 209 points out the failure to involve children
in a legal proceeding that decides its fate as conservatism (Alrc.gov.au 2019). Article 12(2) of
the Convention on the Rights of the Child (1989) states that a child should be provided with
the opportunity to appear before the court of law or any other administrative proceedings and